Wednesday, October 14, 2015

Unanimity v Sanity

Justices Question Florida's Death Penalty System:

Florida’s idiosyncratic capital sentencing system appeared to be in peril at the Supreme Court on Tuesday, with several justices questioning whether it gives enough authority to jurors.

The first case, Hurst v. Florida, No. 14-7505, concerned Timothy Lee Hurst, who was convicted of the 1998 murder of Cynthia Lee Harrison, a co-worker at a Popeyes restaurant in Escambia County, Fla. He was tried and sentenced to death in 2000.

After the Florida Supreme Court ordered him resentenced, a second jury in 2012 recommended a death sentence by a 7-to-5 vote. The judge then independently considered the evidence concerning the appropriate punishment and concluded that Mr. Hurst should be executed.

Seth P. Waxman, a lawyer for Mr. Hurst, listed what he said were several constitutional problems with Florida’s procedure. The jury was not required to render a unanimous verdict, to specify which factors warranted death or even to say whether the jurors in the majority agreed on which factors they had relied on, Mr. Waxman said.

“There is no other state that permits anyone to be sentenced to death other than by a unanimous determination by the jury,” he said. “And the State of Florida requires unanimity for shoplifting, just not for death.”

Only two states — Louisiana and Oregon — allow nonunanimous verdicts in most criminal cases, and even then at least 10 of the 12 jurors have to agree. The two states require unanimous verdicts in capital cases.
Ironic, isn't it? Florida says the jury must be unanimous to convict someone of shoplifting a pack of AA batteries. But to kill ya? Split is fine, as long as we get a majority.
Justice Ruth Bader Ginsburg said that would not be necessary to rule against Florida in the case before the justices. “Does 10 to 2 automatically mean that 7 to 5 is O.K.?” she asked Allen Winsor, Florida’s solicitor general.

Mr. Winsor said a simple majority vote was acceptable thanks to another challenged feature of Florida’s approach. “Even if it’s a 7-to-5 vote, you still have the judge coming behind that jury” to make the final determination, he said.
Then why not 6-6 with the judge as a tie breaker? Or how about a simple plurality? Come on, Florida...be Florida.
But in 2002, in Ring v. Arizona, the Supreme Court ruled that juries and not judges must make the factual findings to support death sentences. Mr. Winsor said the state’s procedure satisfied Ring because juries did make the required threshold determination that the defendant was eligible to be executed.

Justice Elena Kagan disagreed. “The crucial death eligibility determination is being made by the judge because that’s the only death eligibility determination that the appeals court is ever going to review,” she said.
Uh, yeah. the Ring decision practically invalidates Florida's bizarre, desultory scheme from top to bottom. Unless they want to revisit Ring (which was 7-2), there really doesn't seem any way the Florida statute survives.

In the other case, the justices never got around to debating the Miller v. Alabama decision from 2012 (which forbade mandatory LWOP sentences for juveniles) and the issue of retroactivity (which, as predicted on this blog back in '12, they would have to eventually). The issue appeared to be more standing, than anything.
The argument in the second case Tuesday, Montgomery v. Louisiana, No. 14-280, was notable for how little time the justices spent on its central question: whether their 2012 decision barring mandatory life-without-parole sentences for juvenile killers must be applied retroactively. Instead, they wondered whether they had the authority to decide the case at all.
The case concerns Henry Montgomery, who was 17 in 1963 when he murdered an East Baton Rouge police officer. He is now 69.

There are some 2,000 people serving sentences of life without parole for murders they committed when they were not yet 18. Many of them received those sentences automatically, without individualized consideration of their youth and other factors.

In the 2012 decision, Miller v. Alabama, the Supreme Court ruled that such automatic life sentences for juvenile offenders violated the Eighth Amendment’s ban on cruel and unusual punishment. Life-without-parole sentences remained permissible, the court said, but only after individualized consideration. But the court did not say whether the decision was merely prospective or whether it required new sentencing hearings or other review for offenders whose sentences were already final.

The decision followed two others concerning harsh penalties imposed on juvenile offenders. In 2005 in Roper v. Simmons, the court eliminated the juvenile death penalty. In 2010 in Graham v. Florida, the court ruled that sentencing juvenile offenders to life without the possibility of parole was also unconstitutional, but only for crimes that did not involve killings.

S. Kyle Duncan, a lawyer for Louisiana, said those decisions could apply retroactively “because the state no longer can impose that category of penalty.” The case before the justices is different, he said, because juvenile killers are still eligible for life-without-parole sentences after their cases are considered individually.

According to the Sentencing Project, a Washington research group that favors more liberal sentencing policies, 14 state Supreme Courts have ruled that the Miller decision applies retroactively while seven have said the opposite. Six states have passed juvenile sentencing legislation that applied retroactivity.
But again, they never really got around to the meat of the argument.
Mark D. Plaisance, a lawyer for Mr. Montgomery, was barely able to address the question of retroactivity. Instead, the justices questioned him about whether they had jurisdiction to review a ruling from the Louisiana Supreme Court saying that their Miller ruling applied only prospectively.
You can read the rest of the article. If they decide to punt on this case, they are going to have to tackle the issue again eventually. While there will be push back from victims and other get tough types, retroactivity seems like a ready-made issue for this court in particular.

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