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Habeas – Death Penalty Phase Instructions

Bobby v. Harry Mitts, USSC No. 10-1000, 5/2/11 (per curiam)

The death penalty may not be imposed when the jury isn’t permitted to consider a verdict of guilt on a lesser included, non-capital offense supported by the evidence, Beck v. Alabama, 447 U.S. 625 (1980). As the Court now notes:

such a scheme intolerably enhances the irrelevant considerations into the factfinding process, diverting the jury’s attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime.” Id., at 638, 642. “[F]orcing the jury to choose between conviction on the capital offense and acquittal,” we observed, “may encourage the jury to convict for an impermissible reason—its belief that the defendant is guilty of some serious crime and should be punished,” even when there is “some doubt with respect to an element” of the capital offense. Id., at 632, 642, 637. Because the scheme in Beck created a danger that the jury would resolve any doubts in favor of conviction, we concluded that it violated due process. See id., at 638, 643.

However, the underlying rationale – risk of unwarranted conviction – doesn’t apply to penalty phase instructions: there is a fundamental difference between the guilt/innocence determination and life/death choice.

The jurors in Mitts’s case could not have plausibly thought that if they declined to recommend the death penalty Mitts would “escape all penalties for his alleged participation in the crime.” Beck, supra, at 629. They had just convicted him on two counts of aggravated murder and two counts of attempted murder. They were specifically instructed that if they did not find that the aggravating factors outweighed the mitigating factors—and therefore did not recommend the death penalty—they would choose from two life sentence options. There is accordingly no reason to believe that the jurors in this case, unlike the jurors in Beck, could have been improperly influenced by a fear that a decision short of death would have resulted in Mitts walking free.

Not much here for the Wisconsin practitioner. Nonetheless, this might be an opportune time to recall the pre-AEDPA caution of Nichols v. Gagnon, 710 F.2d 1267, 1271 (7th Cir.1983): “Although the Court may some day decide to extend the rule of Beck to noncapital cases, we are not inclined to anticipate its doing so.” Such an extension would be more complicated today, to say the least – Beck explicitly declined to reach the question of whether due process protects the defendant’s right to a lesser offense instruction in a non-capital case, 447 U.S. at 638 n.14, and AEDPA requires clearly established authority on a particular point before relief may be assigned.

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