Bench Memos

Oral Argument in Hurst v. Florida: Old Divisions, Fraying Alliances?

Last Tuesday, the Supreme Court heard arguments (audio here) in Hurst v. Florida, a case challenging Florida’s application of the death penalty for brutal murder. The petitioner had brought Sixth and Eighth Amendment challenges to Florida’s death sentencing laws, which condition most defendants’ eligibility for the death penalty on a jury recommendation while giving responsibility for the final sentence to the judge. Under Ring v. Arizona (2002), however, all facts “necessary for imposition of the death penalty” must be found by a jury, even if a judge later has responsibility for choosing the sentence. At a purely doctrinal level, this case is about whether, how, and to what extent Florida’s system is compatible with Ring. From a philosophical standpoint, this case has always been most interesting for what it could reveal about the limits of the originalists’ alliance with the in-house opponents of the death penalty.

For nearly three decades, the Court’s originalists have worked to defend the right to trial by jury. In Holland v. Illinois (1990), for instance, Justice Scalia defended the use of peremptory strikes by the government against the opposition of Justice Stevens, who was claiming that the Court’s abandonment of the common law operated as a guide to the meaning of the Sixth Amendment. The Apprendi v. New Jersey (2000) line of cases is the most significant originalist move in this area, and is the one that gave rise to the Hurst case. (Justice Thomas’ concurrence in that case gives an excellent originalist history of the issue.)

In general, criminal statutes provide for different maximum penalties based on the presence of aggravating factors in the particular case. Apprendi held that any fact that can increase the maximum penalty becomes an element of the crime. In drug distribution cases, for instance, the law sets different maximum penalties for different amounts of controlled substance. If a trafficker distributes five or more kilograms of cocaine, the maximum sentence is life, whereas more than 500 grams authorizes only a 40-year sentence. To authorize a sentencing range above 40 years, then, the government must prove (and the jury must find) that more than five kilograms of cocaine were involved in the crime. In cases where evidence of guilt is overwhelming, the big factual and legal fights are over the Apprendi factors, i.e., how much cocaine was at issue in the conspiracy.

Justices Scalia and Thomas joined the liberals to hold in Ring that the Apprendi rule operates the same way in death penalty cases, except the aggravators are related to the heinousness of the crime: level of violence or brutality, number of victims, connection with a robbery or other crimes, and so forth. Florida’s system does this – sort of – by requiring the jury to make an advisory recommendation. The jury is instructed that it can recommend death only if it finds one of several aggravators, so when the jury in this case returned a recommendation of “death,” it was implicitly finding at least one aggravator without identifying which. In addition, the judge made independent factual findings (permitted by Florida law) that further authorized the death penalty under Florida law.

Even after oral argument, it’s tough to say where the justices stand. Justice Scalia’s sparring seemed to indicate that he has reached the limits of his alliance with anti-death-penalty justices. He was willing to side with the challengers insofar as the case involved a violation of Ring, but not much further (if at all). He vigorously resisted the Eighth Amendment arguments suggesting that a death sentence is cruel and unusual punishment in the absence of a unanimous jury sentence recommendation, and resisted arguments that the advisory sentence created impermissible ambiguity about how many jurors voted for which aggravators.

Justice Sotomayor, on the other hand, appeared to want to go beyond Ring and hold that a death sentence – not just a finding of guilt – must be imposed by a unanimous jury death sentence. After petitioner’s counsel, former Solicitor General Seth Waxman, initially agreed with Justice Sotomayor, he backpedaled furiously on this point when pressed by Justice Scalia: 

JUSTICE SCALIA: Well, wait a minute. They — they — they require unanimity for the — for a conviction, right?

MR. WAXMAN: Yes. And conviction –

JUSTICE SCALIA: Just — just — just they don’t require unanimity on the sentence. That’s quite different from . . . whether the person committed the crime or not.

MR. WAXMAN: Justice Scalia — exactly. And, Justice Scalia, leaving aside our Eighth Amendment point in our brief that — that followed on Justice Breyer’s concurrence in Ring, the — this is all about the eligibility, not the determination of what sentence applies.

During the state’s argument, Justices Breyer and Sotomayor pushed Florida’s solicitor general to explain the details of the sentencing scheme, and specifically, whether a judge can impose a death sentence without a jury’s recommendation. The Florida SG deftly jumped out of the “yes/no” box with a scrupulously precise answer that preserved the distinction between state law and Supreme Court decisions. This maneuver provoked some spluttering by Justice Breyer, who seemed genuinely surprised by the distinction: 

JUSTICE BREYER: My simple question is: As a matter of Florida law, can the judge impose the death sentence? Yes or no.

MR. WINSOR: As a matter of Florida statutory law, yes. As a matter of Ring, no.

JUSTICE BREYER: That isn’t — I mean, it is. It’s Federal law. So — I mean, Ring is over. So — so you say the answer is now no – because of Ring.

Yes, quite. The reason for the nuanced answer, it turns out, is that Florida allows a prior conviction at the guilt phase to serve as an aggravator for the sentencing phase. In this hypo, even if the jury recommends a non-death sentence, the judge isn’t violating Ring by ignoring the jury recommendation because there is already a sufficient statutory aggravator – a prior conviction – that doesn’t require jury fact-finding.

Justice Kagan offered several hypotheticals, including one interesting exchange about whether a judge could disagree with the jury’s aggravator findings and still find a different aggravator in favor of death:

JUSTICE KAGAN: Suppose that the — the jury finds an aggravating fact, but then, you know, the judge has this whole separate hearing — right? — in which other things are presented to him. And the judge says, You know, I don’t actually agree with the aggravating fact that the jury found, but I have my own aggravating facts, and now I’m — I’m doing all the weighing and I come out in favor of death.

I — I assume that you would say that that also would be an unconstitutional application.

MR. WINSOR: No, Your Honor. That would be consistent with Ring because, again, once death eligibility and — and there is a substantial difference that this Court has recognized over the years between the determination of who is eligible for death, and then, of that universe of people eligible for death, for whom is it appropriate?

JUSTICE KAGAN: Yes. Quite — quite right. But I’m — I’m hypothesizing a case in which the jury finds that death-eligibility marker.

MR. WINSOR: Right.

JUSTICE KAGAN: Right? If — but the judge throws that one out and substitutes his own. That — you think that would be constitutional?

MR. WINSOR: Well, the judge in that instance wouldn’t be throwing it out.

JUSTICE KAGAN: No, he does throw it out. He just says, I don’t agree with that. I’m — but I’m substituting my own. Would that be all right?

MR. WINSOR: That would be okay because eligibility would have been determined. Just like if, in my double murder example, the judge believed that, you know, if he were sitting on the jury maybe he would have acquitted that person of the — of the double murder.

And of course he can’t just override the jury’s verdict based on a mere disagreement. In that instance, the death eligibility was determined not withstanding that he had — he being the decisionmaker, maybe would have decided differently. The person is eligible for death. And then it’s up to the sentencer.

JUSTICE KAGAN: But I have to say that answer surprises me because the death sentence there is not at all a function of the jury’s eligibility finding. The judge has tossed out that eligibility finding and substituted his own, which then leads to the death sentence. So how can we say that that’s possibly constitutional under Ring?

MR. WINSOR: Because the point in Ring was to make sure that no person was subject to a greater penalty than they bargained for when they did the crime without a jury finding. And in your hypothetical, the jury finds that there is an aggravator. So there is a jury finding that that person is entitled to the punishment based on the crime that he or she committed.

JUSTICE KAGAN: The judge has said that that jury finding is utterly irrelevant to his decision about whether to impose death. That he’s imposing death based on something that the jury has not found.

MR. WINSOR: But at that point the judge’s determination is separate from the — the selection point. The judge is exercising the discretion to sentence within — a person who is determined by a jury to be eligibility for the death penalty.

Florida’s solicitor general was seemingly unable to satisfy Justice Scalia’s concerns about the instructions that were given to the sentencing jury in this case, which were apparently less than clear about the role that a jury recommendation of death would play in authorizing the death penalty:

JUSTICE SCALIA: But shouldn’t it be clear to the jury that their determination of whether an aggravator exists or not is final? Shouldn’t that be clear?

MR. WINSOR: Well, I — I don’t think so, Your Honor, because the determination of the aggravator doesn’t yield a death sentence unless the judge in his or her own opinion believes the death is appropriate. That’s a benefit.

JUSTICE SCALIA: I’m talking about what responsibility the jury feels. If the jury knows that if — if we don’t — if — if we don’t find it an aggravator, it can’t be found; or if we do find an aggravator, it must be accepted. That’s a lot more responsibility than just, you know, well, you know, if you find an aggravator and you — you weigh it and provide for the death penalty, the judge is going to review it anyway.

MR. WINSOR: I’m not sure that’s an accurate characterization of what goes on because it’s not that the judge must accept — the aggravator determination has no purpose or no point other than determining eligibility and then the weighing. And if the judge determines that the death sentence is not appropriate for whatever reason, then the fact that the jury found an aggravating circumstance makes no difference.

Early on in the petitioner’s argument, Justice Alito posed this seemingly out-of-the-blue question about the weight of death penalty precedents:

JUSTICE ALITO: Could I ask you this about Ring? I wasn’t on the Court at the time of Ring, so could you tell me if Ring is entitled to greater weight as a precedent than, let’s say, Gregg v. Georgia and the other cases upholding the constitutionality of the death penalty?

MR. WAXMAN: Oh, I’m not — I — I wouldn’t be prepared to say — to assign weight to either of them.

We know from last Term that some of the justices apparently want to declare the death penalty unconstitutional. Could it be that Justice Alito is inclined to overrule Ring and thinks that his liberal colleagues will settle for Ring’s survival? I doubt it, but we’ll have to wait until the opinion comes out to know for sure.

On the whole, I think the Court will split the baby on this case. Assuming that the originalists stick together, we will probably see an opinion generally agreeing that the jury instructions in this case violated Ring, but with little additional agreement. 

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...


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