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It's the Federal Courts' Fault, Justice Breyer

As expected, the reason the Supreme Court "relisted" Jordan v. Mississippi and Evans v. Mississippi so many times before turning them down was that Justice Breyer was writing a dissent from denial of certiorari.  As expected, he engages in the usual wholesale acceptance of contentions that are hotly disputed at best and discredited at worst.  He cites the DPIC's so-called "innocence list" as if it actually were a list of actual innocents.  If the major premise of a syllogism is "given that the moon is made of green cheese" do you really need to hear the conclusion?

Perhaps the most galling aspect of the opinion is Justice Breyer's lamenting of the long delay in this case without any acknowledgement of just how much the federal courts and especially the Supreme Court itself have caused the delay.
More than a century ago, the Court described a prisoner's 4-week wait prior to execution as "one of the most horrible feelings to which [a person] can be subjected." In re Medley, 134 U. S. 160, 172 (1890). What explains the more than 4-decade wait in this case? Between 1976 and 1986, each of Jordan's first three death sentences was vacated on constitutional grounds, including by this Court. See Jordan v. Mississippi, 476 U. S. 1101 (1986) (vacating death sentence and remanding case in light of Skipper v. South Carolina, 476 U. S. 1 (1986)); see also Brief in Opposition in No. 17-7153, p. 4-5 ("Jordan was originally convicted and automatically sentenced to death" in July 1976--the same month that this Court held mandatory death sentences unconstitutional in Woodson v. North Carolina, 428 U. S. 280 (1976) (emphasis added)). In 1998, Jordan was sentenced to death for the fourth time.
How many of these three reversals of prior sentences were the result of the state courts violating clearly established federal rules in effect at the time of the trial?  Zero.  Is Justice Breyer even aware of that?  He gives no indication of it.

Let's take the first and easiest one first.  Why did Mississippi have a mandatory sentencing law in force at the time of the first trial?  Because the Supreme Court itself had very strongly implied in Furman v. Georgia (1972) that mandatory capital sentencing was the only form that would pass constitutional muster.  Almost three-quarters of the legislatures in the United States passed new capital sentencing laws after Furman, and they all had to figure out what that badly fractured decision meant.  That was no small task, because the five justices in the majority all wrote separate opinions, none joining any of the others, and contradicting each other to a considerable extent.

Of all the legislatures in the country, the three with the greatest resources and presumably the highest degree of sophistication -- Congress, California, and New York -- all concluded that mandatory sentencing was required.  Four years later, the Court said no, mandatory sentencing is not required it is forbidden.  No apology was offered to the American people for so hugely misleading the Nation on such an important question, but a huge one was owed.  Mississippi was among the states caught by the Supreme Court's flip-flop trap.  (For the long version, see the discussion of Gregg v. Georgia on C-SPAN's Landmark Cases series with Carol Steiker and me.)

The second sentence was overturned by a dubious decision of the Fifth Circuit.  The Supreme Court had decided in Godfrey v. Georgia (1980) that a death sentence was unconstitutional if the aggravating circumstance that makes the defendant eligible to be considered for the death penalty is vague, but in 1982 the Fifth Circuit applied that decision to the circumstances in the weighing process that follows.  The following year, the Supreme Court rejected a similar argument in Zant v. Stephens (1983):

Respondent argues that the mandate of Furman is violated by a scheme that permits the jury to exercise unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty by statute. But that argument could not be accepted without overruling our specific holding in Gregg. For the Court approved Georgia's capital sentencing statute even though it clearly did not channel the jury's discretion by enunciating specific standards to guide the jury's consideration of aggravating and mitigating circumstances.
I think the Fifth Circuit's decision in Jordan's second case is wrong on the merits.  In any case, it would be error today because the Fifth (1) extended the Godfrey rule to new territory, thereby making a new rule, and applied it retroactively, and (2) gave no deference to the Mississippi Supreme Court's reasonable rejection of Jordan's claim under the law as it then stood.  This illustrates why we needed the Teague v. Lane (1989) and 28 U.S.C. §2254(d) rules, but unfortunately we did not have them in 1982.  There was no rule against how this trial was conducted at the time of the trial, yet the sentence was overturned anyway.

The third trial was overturned on the basis of the Supreme Court's own dubious decision in Skipper v. South Carolina (1986), a decision rendered three years after the trial.  Earlier Supreme Court cases had held (contradicting still earlier precedents) that the jury must be allowed to consider everything in the defendant's background, character, and record that he proffers as mitigating, but not until Skipper itself was this rule stretched to include the defendant's behavior after the crime, specifically while in jail awaiting trial.  Justice Powell dissented on this point, although concurring in the judgment on grounds not relevant here:

In my view, the Court's reasoning is flawed. The Eighth Amendment requires that the sentencing authority consider "relevant mitigating evidence" concerning the defendant's "character or record" and "the circumstances of the offense." Eddings v. Oklahoma, supra, at 455 U. S. 114; Lockett v. Ohio, supra, at 438 U. S. 604. But the States, and not this Court, retain "the traditional authority" to determine what particular evidence within the broad categories described in Lockett and Eddings is relevant in the first instance. 438 U.S. at 438 U. S. 604, n. 12. As long as those determinations are reasonable -- as long as they do not foreclose consideration of factors that may tend to reduce the defendant's culpability for his crime, see Eddings, supra, at 455 U. S. 115-116 -- this Court should respect them.

I see no reason why a State could not, consistent with these principles, exclude evidence of a defendant's good behavior in jail following his arrest, as long as the evidence is not offered to rebut testimony or argument such as that tendered by the prosecution here. Such evidence has no bearing at all on the "circumstances of the offense," since it concerns the defendant's behavior after the crime has been committed. Nor does it say anything necessarily relevant about a defendant's "character or record," as that phrase was used in Lockett and Eddings.

In short, in all three of the prior trials the state courts reasonably complied with what appeared to be the law.  It is the Supreme Court's flip-flopping in Furman/Gregg and its own and the Fifth Circuit's dubious extension of precedents that caused the reversals.  To borrow Justice Blackmun's memorable phrase, it was the federal courts' constant tinkering with the machinery of death that caused the delay, not violations of existing rule by the state courts. 

The solution has two parts.  First, the Supreme Court itself should stop the damn tinkering.  None of these rules of sentencing procedure is really in the Eighth Amendment.  Just stop making them.  Justice Thomas noted almost two decades ago, "in most cases raising this novel claim, the delay in carrying out the prisoner's execution stems from this Court's Byzantine death penalty jurisprudence ...."  The claim is no longer novel, but the Court's death penalty jurisprudence has gotten even more Byzantine.  Even if none of the existing rules is overruled, just stop making new ones and expanding existing ones.

Second, fully enforce the existing limits on federal habeas corpus and stop poking holes in them.  The Teague, §2254(d), and Pinholster rules, if fully enforced, would make initial federal habeas corpus proceedings short in most cases, as the state court decision on the state court record is almost always reasonable, and new claims and evidence should not be allowed absent a miscarriage of justice (i.e., innocence of the crime).  Once habeas corpus is denied in the federal courts, the federal statute on successive petitions should prevent any further consideration in most cases, and the use of Federal Rule of Civil Procedure 60(b) to evade it should be stopped cold.

Yes, Justice Breyer, delay is a great problem.  Some acknowledgement that the Supreme Court itself is largely responsible for the delay and a resolution to do something about it is in order.

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