Today, the U.S. Supreme Court heard oral argument in the case of McKinney v. Arizona, No. 18-1109. The transcript is here.
Regrettably, an essential issue in the case was barely mentioned. The attorney for McKinney said, "This Court's decisions in Ring and Hurst require a jury sentencing." That is wrong, yet the attorney for Arizona completely failed to challenge it. The consequences could be catastrophic.
For many years, the U.S. Supreme Court has recognized two distinct steps
in the capital sentencing process. First, before the death penalty can
even be considered, there must be a finding of some fact that elevates
the case above the bare elements of murder. In most states, this
"eligibility" determination is the finding of at least one from a
statutory list of aggravating circumstances.
Once the eligibility hurdle has been cleared, the sentencer must decide whether to actually sentence the murderer to death. This is the "selection" step.
Before 2002, the Supreme Court held repeatedly that both steps could be performed by the jury or by the trial judge, as the state may choose. Sentencing by the judge was upheld in Proffitt v. Florida in 1976 and by Spaziano v. Florida in 1984. In 1989, after the eligibility-selection separation had become more clear, the high court upheld having the jury make the eligibility determination, i.e., the finding of an aggravating circumstance, in Hildwin v. Florida, and it upheld capital sentencing by the trial court again the following year in Walton v. Arizona.
In the 2000 case of Apprendi v. New Jersey, a decade after Walton, the Supreme Court decided that there was a right to jury trial and proof beyond a reasonable doubt for sentencing factors in non-capital cases when those factors operate in practice like elements of a higher degree of offense. There was considerable tension between that holding and Hildwin and Walton, although not much with Spaziano, which had not really considered the eligibility finding.
Sure enough, in 2002, the Court overruled Walton on Apprendi grounds in Ring v. Arizona. That decision was unambiguously limited to the finding of an aggravating circumstance, the eligibility step and not the selection step. The Court strangely waited 14 years to apply that holding to Florida and expressly overrule Hildwin and Spaziano in part, but it took that step in Hurst v. Florida in 2016.
Note the "in part." That's important. Although the opinion contains some confusing dictum about the weighing finding, when it comes to the actual overruling, Hurst unambiguously overrules Hildwin and Spaziano only as to the finding of the aggravating circumstance. As to the weighing process, i.e., the selection step, Spaziano is still good law. It is a Supreme Court precedent that has not been overruled (and should not be).
In McKinney, Arizona had to re-do the weighing step because a bare 6-5 majority of the Ninth Circuit wrongly decided that the original sentencing had failed to give any consideration to defense evidence having nothing to do with the crime. (In fact, both the trial judge and the state supreme court had considered that evidence. They just didn't think it should carry much weight.)
Under Arizona law (on which the Arizona Supreme Court is the final authority), the Arizona Supreme Court could repair the error by reweighing the aggravating and mitigating factors itself. The U.S. Supreme Court upheld appellate reweighing to fix a similar type of error in 1990 in Clemons v. Mississippi. So what's the problem?
McKinney claims that the Arizona Supreme Court had reopened the case so it was no longer final. Therefore, the argument goes, it was required to apply current federal constitutional law, including Ring and Hurst. So? McKinney further claims that these precedents require jury sentencing, and that precludes reweighing by the appellate court. No, they do not. An essential element of the argument is false. Spaziano is still good law as to weighing.
And what did the Arizona Solicitor General say in response to this obvious and fatal error in McKinney's argument? Nothing. Nothing in the brief. Nothing in today's argument.
If the decision in this case says or implies that Apprendi applies to the weighing step, it would be an unmitigated disaster. Most states have juries rather than judges do the weighing now, but Apprendi also requires that the facts to which it applies be found beyond a reasonable doubt. Few States instruct their juries to find that the aggravating outweighs the mitigating by that standard. It does not make much sense to do so, because weighing is a judgment about appropriate punishment and not a finding of fact that is demonstrably true or false. Declaring a commonly used practice unconstitutional would cause massive reversals of capital sentences.
The argument is in CJLF's amicus brief. Let's hope the Justices read it before they decide this case.
This case is somewhat puzzling to me. I agree that Ring and Hurst do not require jury sentencing in a capital case. However, I found the following passage in the respondent's brief under the heading, "Arizona's Sentencing Framework" "Under Arizona law at the time of McKinney’s crimes, the trial judge acted as the capital sentencer. Following a guilty verdict for first-degree murder,the judge was to conduct a sentencing hearing to determine the existence of aggravation and mitigation. See A.R.S. § 13-703 (1991).1 At that hearing, the State was required to prove the existence of aggravation beyond a reasonable doubt..." If the defendant could not be sentenced to death, absent a finding of aggravation, then it seems that Ring would require that finding to be made by a jury.
Ring does indeed apply to the finding of at least one aggravating circumstance that makes a case death-eligible. That is its central (and, I believe, only) holding. However, the Supreme Court decided in Summerlin that it was not retroactive on collateral review, so the cases with eligibility holdings not otherwise reversible that were affirmed on appeal before Ring do not have to go back to have a jury make that finding.
There is an additional wrinkle in this case. McKinney was convicted by the jury of two counts of first-degree murder. The first murder was an aggravating factor for the second. As to the second, then, the facts that make him eligible for a death sentence were found by the jury.