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Column: Justice Kennedy: The Man in Control of the Death Penalty (New York Law Journal)

By Christopher Dunn — The death penalty continues to command the attention of the Supreme Court, with it being the subject of seven of the sixty-eight signed opinions the Court issued last Term. Each of those cases split the Court 5-4, and in every case the same four-Justice blocks squared off against one another – Chief Justice Roberts and Justices Scalia, Thomas, and Alito in one camp and Justices Stevens, Souter, Ginsberg, and Breyer, in the other. Which block prevailed turned entirely on the position of Justice Kennedy, who now is the single most important person in this country’s increasingly contentious death-penalty debate.

Two of the Court’s decisions dealt with important policy issues: execution of the insane and disqualification of jurors based on their views about the death penalty. Four other cases concerned juror consideration of mitigating evidence, while the final case involved time limits on the filing of federal habeas petitions. In addition to controlling the outcome of all seven cases, Justice Kennedy wrote four of the Court’s opinions.

Executing the Insane and Juror “Bias”

One of the most significant decisions was Panetti v. Quarterman, which concerned the circumstances under which an allegedly insane person could be executed. The petitioner was Scott Panetti, who had been convicted by a Texas jury of capital murder and sentenced to death. After unsuccessfully pursuing in state and federal courts claims that he was not competent to be tried, he asserted on a second habeas petition that he was not competent to be executed. In 1986 the Supreme Court in Ford v. Wainright, had ruled that the insane could not be executed, but there was no majority opinion, and thus the specific standards governing execution-competency claims were unsettled.

Presented with Mr. Panetti’s claim, Justice Kennedy sided with the Stevens-Souter-Ginsberg-Breyer block and wrote for the Court. As an initial and quite important matter, he construed the restrictive provisions of the 1996 federal statute governing death-penalty appeals to leave room for Mr. Penetti’s second habeas petition. He also concluded that no deference had to be afforded to the Texas court’s factual determinations about the Panetti’s mental state in light of various procedural protections the state court had failed to provide, including a “fair hearing” about the competence issue and a transcript of the proceedings.

Turning to the substantive Eighth Amendment issue presented by the case, Justice Kennedy rejected the Fifth Circuit’s interpretation of Ford v. Wainright, which according to the Court of Appeals required only that a condemned defendant be aware “that he is going to be executed and why he is going to be executed.” Under this understanding of Ford, the lower court had refused to consider whether Panetti’s mental illness “obstructs a rational understanding of the State’s reason for his execution.” This, Justice Kennedy concluded, was legal error and required reversal for further proceedings.

At this point the decision gets murkier, with Justice Kennedy grappling with a plurality opinion in Ford that he acknowledged “did not set forth a precise standard for competency.” After much parsing of Ford, he concluded that “[a] prisoner’s awareness of the State’s rationale for an execution is not the same as rational understanding of it. Ford did not foreclose inquiry into the latter,” an inquiry he acknowledged is difficult because “a concept like rational understanding is difficult to define.” Indeed, he chose not to try to define it definitively, limiting himself to the conclusion that the Fifth Circuit’s approach was too restrictive and remanding the case for evidentiary proceedings to determine whether Panetti’s mental condition precluded him from having a rational understanding of the reason for his execution so as to bar that execution under Ford.

The other case to touch on a significant policy matter was Uttecht v. Brown, which dealt with the critically important issue of the exclusion of jurors based on their views about the death penalty. After being sentenced to death by a Washington State jury and having exhausted his state court appeals, the defendant Jeffrey Uttrecht had filed a habeas petition claiming, among other things, that his death sentence should be overturned because the trial judge had improperly excluded a juror based on his assertedly hostile views towards the death penalty. The federal District Court had denied the petition, but the Ninth Circuit reversed and ordered a new sentencing trial. The Supreme Court took the case and, in an opinion by Justice Kennedy, reinstated the death sentence.
The subject of the standards governing for-cause removal of potential jurors because of their views about the death penalty was the subject of four significant Supreme Court decisions dating back to the Court’s seminal 1968 decision Witherspoon v. Illinois. These four cases, Justice Kennedy explained, established four basic principles governing death-juror qualification disputes:

First, a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. Second, the State has a strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes. Third, to balance these interests, a juror who is substantially impaired in his or her ability to impose the death penalty under the state-law framework can be excused for cause; but if the juror is not substantially impaired, removal for cause is impermissible. Fourth, in determining whether the removal of a potential juror would vindicate the State’s interest without violating the defendant’s right, the trial court makes a judgment based in part on the demeanor of the juror, a judgment owed deference by reviewing courts.

It was this last principle – mandated deference to trial court assessment of juror demeanor – that Justice Kennedy focused on in upholding the death sentence. Specifically, while the statements the excluded juror made during voir dire about the death penalty did not seem to establish that he was so biased against the death penalty that he could not follow the law, Justice Kennedy relied heavily on the belief that transcribed juror statements reveal only a piece of the information conveyed during the voir dire and thus play a limited role in assessing trial court juror-disqualification decisions. And though defense counsel’s failure to object to removal of a juror does not bar a subsequent challenge to the removal, Justice Kennedy relied heavily on trial counsel’s failure to object in this case, arguing that the lack of an objection was strong evidence that the nonverbal portion of the voir dire was such that the trial court was well within its discretion to strike the juror for cause.

Jurors and Mitigating Evidence

The Court decided four cases that addressed juror consideration of evidence that might mitigate against imposition of death sentences. Three of these cases were decided on the same day and involved challenges to the handling of mitigating evidence in Texas.

Two companion cases, Abdul-Kabir v. Quarterman and Brewer v. Quarterman, dealt with whether, in light of instructions given to capital juries, the juries were adequately allowed to consider mitigating evidence introduced by the defendants. In each case the jury had been instructed to answer whether the defendant had deliberately killed the victim and whether he was likely to commit future acts of violence, and in each case the judge had not offered any specific instructions about how to handle evidence that might mitigate against imposition of a death sentence. In both cases the Texas courts had rejected the defendants’ claims, and the Fifth Circuit similarly had denied habeas petitions.

In these cases Justice Kennedy joined the anti-death-penalty block, with Justice Stevens authoring both opinions. At the heart of each decision was a core principle that Justice Stevens reiterated several times: “We have long recognized that a sentencing jury must be able to give a reasoned moral response to a defendant’s mitigating evidence – particularly that evidence which tends to diminish his culpability – when deciding whether to sentence him to death.” In light of this principle, he explained, “the jury must be allowed not only to consider [mitigating] evidence or to have such evidence before it, but to respond to it in a reasoned moral manner, and to weigh such evidence in its calculus of deciding whether a defendant is truly deserving of death.” Thus, it was not enough for a court to allow the presentation of mitigating evidence to the jury; jurors could not be inhibited by statute or court instruction from giving “full effect” to the mitigating evidence in making sentencing decisions.

Given these governing rules, the Court held that both death sentences were improper because the specific questions posed to the jurors about deliberateness and future dangerousness were not structured to make it clear that the jury could take mitigating evidence into account so as to reject the death penalty. Thus, for instance, evidence about mental illness might be used against the defendant to establish future dangerousness without any corresponding consideration of that condition reducing his culpability. And beyond vacating the death sentences, the majority opinion made clear its displeasure with the Fifth Circuit (which long has been seen as extremely hostile to capital defendants), pointedly noting the lower court’s “difficult . . . jurisprudence” on capital jury instruction issues.

The third case was Smith v. Texas, in which the Court considered whether a death-sentenced defendant challenging the erroneous Texas jury instructions’ treatment of mitigating evidence needed to demonstrate “egregious” harm from the error as opposed to “some” harm (a difference of life or death for many defendants). Whether the less onerous requirement applied depended on whether the defendant LaRoyce Smith had preserved his challenge in his direct appeals, which Justice Kennedy, writing for the Court, concluded in a highly detailed opinion that he had. More significant about the case may be Justice Kennedy’s palpable impatience with the Texas Court of Criminal Appeals in light of the Supreme Court already having once before reversed Mr. Smith’s death sentence, only to have the Texas court reinstate it.

The final case involving mitigating evidence was Ayers v. Belmontes, which addressed the constitutionality of a California statutory catch-all provision governing mitigating evidence. That provision instructed the jury to consider “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” The defendant Fernando Belmontes had introduced “forward-looking mitigation evidence” – specifically, evidence that he would lead a constructive life if incarcerated instead of convicted and contended in his federal habeas petition that the instruction limited the jury’s consideration of such evidence because the evidence had nothing to do with the “gravity of the crime.” The Ninth Circuit agreed and vacated the sentence, but the Supreme Court reversed.

Joining the four pro-death-penalty Justices this time, Justice Kennedy again wrote for the Court. Consistent with two prior rulings rejecting challenges to this same statutory provision, he concluded that the provision on its face did not restrict consideration of the post-crime mitigating evidence and further found that the record was sufficient to establish as a matter of fact that the jury had a full opportunity to consider that evidence.

Time Limits on Habeas Petitions

The seventh and final death penalty decision from last Term concerned the filing deadlines established by the 1996 federal statute, with the specific question being whether the one-year limit on the filing of a federal habeas petition was tolled while a petition for a writ of certiorari from state court proceedings was pending before the Supreme Court. Justice Kennedy again sided with the pro-death-penalty Justices, with Justice Thomas authoring an opinion that held that the filing limit was not tolled under the statute’s express terms and thus that the defendant’s habeas petition was time-barred. And without deciding whether equitable tolling was even available under the statute, Justice Thomas rejected the prisoner’s claim to equitable tolling.

Lessons Learned

These seven cases demonstrate that the Supreme Court, for better or for worse, remains strongly interested in the death penalty. They also reflect a frustration with death penalty rulings emanating from the Fifth Circuit and from Texas. Most importantly, however, the cases from last Term reveal that the judicial death-penalty debate now boils down to one person: Justice Kennedy.

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