A Change in Death Penalty Jurisprudence: Unconstitutional Factors

Brown v. Sanders

Because of how convoluted this case is I will describe it more abstractly than usual. The case concerns a death penalty defendant whose sentence was based on 4 aggravating factors, two of which were held unconstitutional on appeal. The question before the Court (technically) is whether California is a "weighing" or a "nonweighing" state, but the Court concludes that the weighing/nonweighing scheme is ill-advised and institutes a new system.

In keeping with its rich tradition of counterintuitive terminology, the Court declared two classes of states that allowed the death penalty (though this decision notes that state systems do not always fall neatly into a particular class): weighing and nonweighing. In death penalty cases, as per the mandates put forth when the Supreme Court declared capital punishment constitutional, there is a two tiered system, where a defendant is first found to be eligible for the death penalty, and second, is actually sentenced to death. For each tier there is a defined (statutory) set of factors that the jury or judge can consider. In "weighing" states the sentencer is instructed to consider all mitigating factors and weigh them against specific aggravating factors, whereas in nonweighing states the sentencer is instructed to weigh all mitigating factors against all other factors, not just those aggravating factors that were enumerated for the purpose of qualifying the defendant for the death penalty.

Under the previous rule, because the aggravating factors (step 2) in a nonweighing state were of a greater scope than the eligibility factors (step 1), a sentence would be upheld so long as one eligibility factor was constitutional (in this case an aggravating factor allowed the sentencer to consider "the circumstances of the crime"). The same was true for a state where the two sets of factors were completely different. In sates where the eligibility factors were equal or greater in scope (for lack of a better description) the consideration of an unconstitutional eligibility factor would introduce evidence into step 2 that would not be admissible if that factor had been recognized as unconstitutional, and would necessarily skew the step 2 consideration. If the same happened in a nonweighing state it would not necessarily do so, and would never do so if the two sets of factors were completely different.

The Court decided here that it would eschew the weighing/nonweighing system for a universal rule: "An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances." In this case the four factors that the jury found were (1) the murder was committed while the defendant was engaged in robbery, (2) it was committed while the defendant was engaged in burglary in the first or second degree, (3) the victim was a witness to a crime who was intentionally killed for the purpose of preventing her testimony, (4) the murder was especially heinous, atrocious, or cruel. The first two were paired down, and the fourth was declared unconstitutionally vague. The majority then comes to the conclusion that "the jury's consideration of invalid eligibility factors in the weighing process did not produce constitutional error because all of the facts and circumstances admissible to establish the 'heinous, atrocious, or cruel' and burglary-murder eligibility factors were also properly adduced as aggravating facts bearing upon the 'circumstances of the crime' sentencing factor."

Justices Stevens and Souter dissented because the only question before the court was whether California was a weighing or nonweighing state, and they believed that the Court of Appeals had properly determined that California was not. Justices Breyer and Ginsburg dissented, arguing that the weighing/nonweighing question was irrelevant, and that the as per "ordinary rules of appellate review" the Court had to determine whether the jury's consideration of an invalid factor was "harmless beyond a reasonable doubt," regardless of the framework (which they agreed should be discarded as "unrealistic, impractical, and legally unnecessary."

What is a Reasonable Time, and What Does a Silent Decision Say About It?

Evans v. Chavis

The Antiterrorism and Effective Death Penalty Act (AEDPA) allows a prisoner to seek habeas corpus review within one year after their conviction becomes final. It also extends this period for any duration of time "during which a properly filed application for State post-conviction review is ... pending," which includes the time between when the conviction became final, and a timely application for post-conviction review is filed. Whereas other states specify the time a prisoner has to file such an application (i.e. 30 days, 60 days), California defines an application as timely if it is submitted within a "reasonable time." The question here is whether or not Chavis' application to California's Supreme Court, submitted three years after his conviction became final, was submitted within a "reasonable time." (It does not bode well for Chavis that the Court put "three years" in italics)

The Court, when hearing the case previously, had instructed the Ninth Circuit that a lower court’s denial "on the merits and for lack of diligence" did not decide the question, because (a) the court may have decided to address the merits even if the petition was untimely, and (b) the "lack of diligence" could have been a reference to a different and irrelevant delay. The Court also cited case where the Ninth Circuit found a petition to be timely when it was submitted 4 years after the lower court's decision as an "incorrect approach." The Ninth Circuit held that because Chavis' application was denied "without citation or comment" the lower court had reached the merits of the case, implying that it was considered timely (presumably if it were not that would be the grounds on which the lower court would have denied the petition).

The Court asserts that the absence of the words "on the merits" "makes it less likely, not more likely that the California Supreme Court believed [the delay] was reasonable." The Court also suggested that if the allowable delay was substantially different than other states the AEDPA's "tolling" would not apply. The Court then concludes that during the contested time, between prison lockdowns and conflicts between Chavis' job and the prison library's hours, there remains a "totally unjustified" delay of 6 months, and comparing that period to determinate periods of delay allowed by law, concludes that 6 months is unreasonable.

The concurrence argues that if the Court had rejected the idea that a denial on the merits that does not comment on timeliness "the Court should now endorse [the presumption] because it is both eminently sensible as a matter of judicial administration and entirely sound as a matter of law." The concurrence also argues this should be extended so that any unexplained order before 6 months should be presumed timely, and any unexplained order after 6 months should be presumed to be a ruling on timeliness (6 months being "the only specific time period mentioned in California’s postconviction jurisprudence"). Justice Stevens uses this presumption to determine (for the concurrence) that "the California Supreme Court actually decided - not once, but twice - that the petitions filed by respondent in that court were untimely."

P.S: Here is someone that thinks Stevens was right

The Nature of Direct Economic Competition

Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc.

The Robinson-Patman act states that “It shall be unlawful for any person engaged in commerce … to discriminate in price between different purchasers of commodities of like grade and quality, … where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them,” which the Court has read to proscribe “price discrimination only to the extent that it threatens to injure competition. Reeder-Simco takes part in reselling Volvo trucks via a competitive bidding system and brought an action under the law because it believed that, in attempting to reduce the number of resellers Volvo used, it offered better discounts to other resellers. Through this competitive bidding system a customer would select a set of resellers from whom to accept bids; the resellers would then contact their supplier to ascertain their discount rate; the resellers would bid, and the customer would select one, at which point the reseller would make the actual purchase. This case considers whether the Robinson-Patman act applies to such competition.

The Court states that Reeder had to show “(1) the relevant Volvo truck sales were made in interstate commerce [to show the law falls under Congress’ enumerated powers]; (2) the trucks were of ‘like grade and quality’; (3) Volvo ‘discriminate[d] in price between’ Reeder and another purchaser of Volvo trucks; and (4) ‘the effect of such discrimination may be … to injure, destroy, or prevent competition’ to the advantage of a favored purchaser,” and later clarifies that the injury must be “substantial.” Parts 1 and 2 were stipulated. “Absent actual competition with a favored Volvo dealer, however, Reeder cannot establish the competitive injury required under the Act.” Volvo maintained a policy whereby if two resellers came into direct competition on the same contract they would both receive the same concession. For the sake of brevity the evidence can be summed up: Volvo offered better concessions to other resellers in the same geographic area in the hopes of reducing the number of resellers; Volvo followed their policy of offering the same concession when the resellers were in head-to-head competition; and Reeder could show a declining number of sales.

The argument boils down to a question about the concept of direct competition with the majority declaring that there was no actual competition where Reeder was not bidding on the same contract with another reseller, especially insisting that the customer’s selection of bidders limits the scope of competition, and the dissent claiming that competition exists between resellers for customers generally, even where there is no head-to-head competition. The Court leaves the question as to whether or not the law can apply to competitive bidding or special order purchases per se, and simply holds that competition to bid on contracts is not affected by price difference (since the price is not known until the bidding process begins), and “assuming the Act applies to the head-to-head transactions, Reeder did not establish that it was disfavored vis-à-vis other Volvo dealers in the rare instances in which they competed for the same sale – let alone that the alleged discrimination was substantial” (Reeder claims an actual loss of $30,000 gross profits.

The dissent argues that precedent defines competitors as “those who sell ‘in a single interstate retail market’” and that “nothing in the statute or in our precedent suggests that ‘competition’ is evaluated by a transaction-specific inquiry, and such an approach … requires us to ignore the fact that competition among truck dealers is a continuing war waged over time rather than a series of wholly discrete events.” Despite the statement of the majority that the Court does not decided whether the act applies to competitive bidding situations per se, it seems to have decided the question for all intents-and-purposes, namely, that it only applies to head-to-head competition.

Does Congress Have the Power to Abrogate State Sovereign Immunity (Under the 14th Amendment)

United States v. Georgia

Tony Goodman, a quadrapeligic prisoner, brought an action against Georgia for violations of the 8th Amendment and Titie II of the Americans with Disabilities Act (ADA). The ADA prohibits "[exclusion] from participation in, or [denial of], the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity." For the purpose of this case Goodman was qualified, though the statute provided that only reasonable accomodations (description) were necessary, and prisons do qualify as a "department, agency, ... or other insturmentality of the state" which the statute applies to. Congress passed the statute, citing the power granted by the final clause of the Amendment ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article"), and included a provision arbogating state soverign immunity (Wikipedia definition)("[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter.") The 11th circuit held that Goodman's claims were barred by state soverign immunity. The question in this case is the extent of the grant of power in section 5 of the 14th Amendment empowers Congress to arbogate state soverign immunity.

Goodman's claims included degrading, neglegent, and discriminatory treatment such as refusing necessary assistance, and placing him in a cell where he was effectively restrained (by his inability to rotate his wheelchair) for 23 hours a day. Because some of these claims included violations of section 1 of the 14th Amendment, and because "[the] enforcement power includes the power to arbogate state sovereign immunity" the Court reversed the decision of the 11th circuit, and remanded the case so the lower courts could determine which of Goodman's claims constituted a violation of both the ADA and the 14th Amdndment. Essentially, the Court decided that the enforcement provision of the 14th Amdendment granted Congress the power to arbogate state soverign immunity, but since this was only accomplished for violations of the ADA, the lower courts have to determine where the allegations overlap the two.

Justice Stevens concurs in what seems to be an attempt to emphasize that Goodman is free to allege violations of constitutional rights other than the 8th Amendment. It is interesting to consider that because Congress has "the power to enforce, by appropriate legislation, the provisions of" the 14th Amendment, and because the Due Process clause of the amendment incorporates (almost all of) the other rights in the Bill of Rights, have we enumerated 9 new powers of Congress with the 14th Amdendment? Or is the 5th section limited in another way? Have we completely revesred the idea that the Bill of Rights should not be enumerations of Congressional power?

Conflicting Statutes

Lockhart v. United States

James Lockhart acquired student loan debts between 1984 and 1989, and were transferred to the Treasury Offset Program, where the Government began withholding some of his Social Security payments to offset the debt. Generally, Social Security is not "subject to execution, levy, attachment, garnishment, or other legal process,"(§407) and this protection cannot be overridden except by another law's "direct reference" to this protection. Another provision, which prohibited collection on claims over ten years old, was eliminated in 1991. This provision's eliminating statute did not, however, did not make "direct reference" to §407. Then in 1996, the Debt Collection Improvement Act was passed which stated that “[n]otwithstanding any other provision of law (including [§407] . . .) ... all payment due an individual under . . . the Social Security Act . . . shall be subject to offset under this section.”

The Court asserts that "the Debt Collection Improvement Act clearly makes Social Security benefits subject to offset" and that the 1991 law (Higher Educational Technical Amendments) remove the 10 year limit. Lockhart argues that because the 1991 law removed time limits before Social Security was subject to offset, Congress could not have meant for it to apply to Social Security. The majority holds that the fact that the 1996 law retained the general protection for 10+ year debts does not extend this protection's scope, and that since the direct reference was only necessary to apply attachments at all, that Congress did not foresee the consequences of its legislation should not stray the Court from a plain reading of the text. Finally, the opinion declines to read into a failed legislative attempt to change the law because “[F]ailed legislative proposals are ‘a particularly dangerous ground on which to rest an interpretation of a prior statute.’”

Scalia, concurring, argues that express reference clauses impermissibly abridge the powers of a succeeding legislature, and that "an express-reference or express-statement provision cannot nullify the unambiguous import of a subsequent statute." Congress' 1991, and 1996 laws "flatly contradicted, and thereby effectively repealed, part of §207(a) of the Social Security Act. This repeal is effective, regardless of whether the express-reference requirement of §207(b) is fulfilled."