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The Alabama Execution and Hurst v. Florida

As noted in today's News Scan, last night Alabama executed murderer Ronald Smith.  The execution involved last-minute petitions to the U.S. Supreme Court, which is routine, but there was an unusual four-four split on the presently eight-justice court.

At the root of the case is the decision last term in Hurst v. Florida.  Under the post-1976 capital sentencing system mandated by Supreme Court precedents, courts must find the defendant guilty of murder plus at least one factor from a list of aggravating factors defined by state law before the death penalty can be considered.  In Ring v. Arizona (2002), the Supreme Court overruled its own precedent and said the jury, not the judge, must make that latter finding.  In Hurst v. Florida (2016), the court applied Ring to strike down the Florida sentencing system that it had repeatedly approved multiple times against the very same attack.

Does Hurst extend further, to require the jury and not the judge to make the additional findings that state law requires before a "death-eligible" defendant is actually sentenced to death?  In my opinion (and that of the Alabama courts), the answer is clearly no.  However, the Delaware and Florida Supreme Court think it does.

The U.S. Supreme Court needs to take this issue up and resolve the split, and an Alabama case would be the cleanest vehicle to do so.  The high court has sent several Alabama cases back to the state courts, and it presently has several on its docket pending decision on whether to take them up.  The Smith case last night, however, was not a clean case.
When I say "clean," I mean that the Ring/Hurst issue is squarely presented, and the outcome of the case depends on the court's answer to that question, not on other questions of procedure or retroactivity.

The most glaring problem in Smith's attempt to invoke Ring and Hurst is that his initial appeal was completed, all the way through petition to the U.S. Supreme Court, on October 2, 2000, two years before Ring was decided.  The high court resolved long ago that Ring did not apply retroactively to overturn judgments that were already final on appeal before it was decided.  Hurst depends on Ring, so it cannot apply to a case that even predates Ring.

The state also invoked other procedural rules that I won't get into here.  Retroactivity is sufficient.

Four justices were convinced that no stay was needed.  Four thought a stay should be granted.  It takes a majority, five, to grant a stay, so the stay was denied.  The Supreme Court's practice is that it only takes four justices to accept a case for full review.  At one time, when four justices voted to take the case up (in legal jargon, grant a writ of certiorari), one more would cast a "courtesy fifth" vote for a stay so the case did not become moot.

The 4-4 split on a stay in this case prompted a motion for reconsideration to clarify the court's "courtesy fifth" practice.  Justice Thomas evidently considered that motion to have enough arguable merit to grant another temporary stay.  However, the court declined and dissolved the temporary stay, and Smith was executed.  No dissents are noted to this order.

I hope the court does take this issue up in a clean case and resolve it.  However, the court needs the ninth chair filled, as a 4-4 split among the current justices is quite possible.  This was not the case to do it, in any event, and a murderer got the punishment he deserved.

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