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SCOTUS takes on death penalty re-sentencing issues

McKinney v. Arizona, USSC No. 18-1109, certiorari granted 6/10/19; affirmed 2/25/20

Questions presented:

1. Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted

2. Whether the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), requires resentencing.

Decision below: State v. McKinney, 426 P.3d 1204 (Ariz. 2018)

USSC Docket (including links to filings)

Scotusblog page (including links to briefs and commentary)

This is a death penalty case focused on procedures specific to imposition of the death penalty, so it won’t have any apparent bearing on state court practice unless it makes some general pronouncements on the law to apply at resentencing hearings. Here is the basic background.

In 1993, McKinney was convicted of murder and sentenced to death by a judge in Arizona. More than 20 years later, the Ninth Circuit held McKinney’s death sentence was unconstitutionally imposed because when McKinney was sentenced Arizona courts refused as a matter of law to consider non-statutory mitigating evidence in death penalty cases in violation of Eddings, which requires the consideration of all relevant mitigating evidence at a capital sentencing hearing. (The non-statutory mitigating evidence the state court’s ignored in McKinney’s case showed he suffered PTSD  as a result of his abusive childhood.)

In response to the Ninth Circuit’s ruling, Arizona sought de novo review of McKinney’s sentence by the Arizona Supreme Court, while McKinney argued he was entitled to resentencing by a jury under Ring v. Arizona, 536 U.S. 584 (2002), which held that juries—rather than judges—are required to make the findings necessary to impose the death penalty. The Arizona Supreme Court agreed with the state on the theory that Ring didn’t apply because it was decided after McKinney’s conviction became final. The court then proceeded to “weigh” the mitigating and aggravating evidence in McKinney’s case and—surprise!—found McKinney’s “mitigating evidence is not sufficiently substantial to warrant leniency” and so reaffirmed the death sentence.

Thus the two questions presented. First, as the cert petition puts it, when correcting the defendant’s death sentence or conducting a resentencing, must the court apply the law as it exists now, rather than as it existed at the time a defendant’s conviction first became final? Note that while the question refers broadly to the “law,” that can’t include the law determining the penalties; penalties are determined by the law as of the date of offense, as it would violate the ex post facto clause to impose an increased penalty at resentencing based on a change in the law enacted after the original conviction but before the resentencing. Thus, to the extent the question applies outside the capital punishment context at all, it must involve mainly procedural questions—in this case, for instance, whether a judge or a jury makes the decision about death. McKinney insists applying the law in effect in 1996 rather than now violates his Sixth, Eighth, and Fourteenth Amendment rights, and he says most state and federal courts addressing this issue agree with him, and that the Court needs to resolve this split, not to mention settle the question for the roughly 20 capital cases in Arizona in which the defendant is in the same boat at McKinney.

The second question is whether the Arizona Supreme Court violated Eddings by declining to remand McKinney’s case for resentencing in the trial court. Eddings held that a “sentencer” in a death penalty case may not “refuse to consider, as a matter of law, any relevant mitigating evidence.” 455 U.S. at 114. The Supreme Court itself has remanded cases to the trial court for resentencing, e.g., Mills v. Maryland, 486 U.S. 367, 375 (1988), and, according to the cert petition, so have five other other state and federal courts. So we have yet another division in authority affecting a substantial number of death-row inmates in Arizona and significant implications for other capital cases across the country.

The Court will decide the case next Term.

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