Voting 5-4 on predictable lines, SCOTUS approves of appellate reweighing of aggravating and mitigating circumstances to uphold a death sentence
The Supreme Court this morning handed down a notable (and notably short) opinion in the capital case of McKinney v. Arizona, No, 18-1109 (S. Ct. Feb. 25, 2020) (available here), which rules that an appeals court can, and a jury need not, reweigh aggravating and mitigating circumstances to uphold a death sentence. The court split 5-4 with Justice Kavanaugh writing the majority opinion and with Justice Ginsburg authoring a dissent joined by Justices Breyer, Sotomayor, and Kagan.
Key passages from McKinney should be of interest not only to those who follow capital punishment jurisprudence, but also those who care about jury trial rights and the reach of precedents like Apprendi and Ring. Here are excerpts from the seven-page majority opinion:
Nearly 20 years [after James McKinney was sentenced to death], on federal habeas corpus review, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit decided by a 6 to 5 vote that, in sentencing McKinney, the Arizona courts had failed to properly consider McKinney’s posttraumatic stress disorder (PTSD) and had thereby run afoul of this Court’s decision in Eddings v. Oklahoma, 455 U.S. 104 (1982).... McKinney contends that after the Ninth Circuit identified an Eddings error, the Arizona Supreme Court could not itself reweigh the aggravating and mitigating circumstances. Rather, according to McKinney, a jury must resentence him.
McKinney’s argument does not square with this Court’s decision in Clemons... [which held] that “the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review.” The Court explained that a Clemons reweighing is not a resentencing but instead is akin to harmless-error review in that both may be conducted by an appellate court...
In deciding whether a particular defendant warrants a death sentence in light of the mix of aggravating and mitigating circumstances, there is no meaningful difference for purposes of appellate reweighing between subtracting an aggravator from one side of the scale and adding a mitigator to the other side. Both involve weighing, and the Court’s decision in Clemons ruled that appellate tribunals may perform a “reweighing of the aggravating and mitigating evidence.” In short, a Clemons reweighing is a permissible remedy for an Eddings error....
Under Ring and Hurst, a jury must find the aggravating circumstance that makes the defendant death eligible. But importantly, in a capital sentencing proceeding just as in an ordinary sentencing proceeding, a jury (as opposed to a judge) is not constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range.... Ring and Hurst did not require jury weighing of aggravating and mitigating circumstances, and Ring and Hurst did not overrule Clemons so as to prohibit appellate reweighing of aggravating and mitigating circumstances.
McKinney ... asserts that the Arizona Supreme Court’s 2018 decision reweighing the aggravators and mitigators constituted a reopening of direct review. Because this case (as McKinney sees it) is again on direct review, McKinney argues that he should receive the benefit of Ring and Hurst — namely, a jury resentencing with a jury determination of aggravating circumstances.
But the premise of that argument is wrong because the Arizona Supreme Court’s reweighing of the aggravating and mitigating circumstances occurred on collateral review, not direct review. In conducting the reweighing, the Arizona Supreme Court explained that it was conducting an independent review in a collateral proceeding.... Under these circumstances, we may not secondguess the Arizona Supreme Court’s characterization of state law. As a matter of state law, the reweighing proceeding in McKinney’s case occurred on collateral review.
And here is how Justice Ginsburg's seven-page dissent gets started (with cites and footnotes removed):
Petitioner James Erin McKinney, convicted in Arizona of two counts of first-degree murder, was sentenced to death in 1993. At that time, Arizona assigned capital sentencing to trial judges. To impose a death sentence, the judge had to find at least one aggravating circumstance and “no mitigating circumstances sufficiently substantial to call for leniency.” Ariz. Rev. Stat. Ann. §13–703(E) (1993). In 2002, in Ring v. Arizona, 536 U.S. 584 (2002), this Court held Arizona’s capital sentencing regime unconstitutional.... Here in dispute, does Ring apply to McKinney’s case? If it does, then McKinney’s death sentences — imposed based on aggravating factors found by a judge, not a jury — are unlawful.
The Constitution, this Court has determined, requires the application of new rules of constitutional law to cases on direct review. Such rules, however, do not apply retroactively to cases on collateral review unless they fall within one of two exceptions. This Court has already held that Ring does not fall within those exceptions. Thus, the pivotal question: Is McKinney’s case currently on direct review, in which case Ring applies, or on collateral review, in which case Ring does not apply? I would rank the Arizona Supreme Court’s proceeding now before this Court for review as direct in character. I would therefore hold McKinney’s death sentences unconstitutional under Ring, and reverse the judgment of the Arizona Supreme Court.
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