This post summarizes cases from the U.S. Supreme Court from February 25, 2020.
Appellate reweighing of aggravating and mitigating factors was permissible; death sentence affirmed by divided Supreme Court
McKinney v. Arizona, ___ S. Ct. ___, 2020 WL 889190 (Kavanaugh, J.). In this habeas appeal, the petitioner was convicted of two murders in 1992 in Arizona state court. At that time, no requirement existed that the jury determine facts supporting an aggravating factor. At least one aggravating factor must be found to support a sentence of death under the Court’s precedents. In the petitioner’s case, the trial court found factors in aggravation for both murders and imposed death. In federal habeas proceedings 20 years later, the Ninth Circuit found that the trial court improperly ignored mitigation evidence in violation of Eddings v. Oklahoma, 455 U.S. 104 (1982) (reversible error for trial court to ignore relevant mitigation evidence at capital sentencing). The case returned to the Arizona Supreme Court, where the petitioner argued for a new sentencing hearing before a jury. The Arizona Supreme Court rejected this argument, pointing to Clemons v. Mississippi, 494 U.S. 738 (1990). Clemons allows a state appellate court to reweigh aggravating and mitigating factors in a death case following reversal for use of an improper aggravating factor (instead of a jury weighing those factors). The Arizona Supreme Court reweighed the sentencing factors in the case and again imposed death. The petitioner appealed to the U.S. Supreme Court, arguing that a jury should have made that determination. A majority of the court disagreed and affirmed the death sentence.
The court first rejected the argument that Clemons did not apply because that case involved an improper aggravating factor, whereas the petitioner’s case involved a failure to consider a mitigation factor.
. . . [T]he Court’s decision in Clemons ruled that appellate tribunals may perform a ‘reweighing of the aggravating and mitigating evidence.’ In short, a Clemons reweighing is a permissible remedy for an Eddings error. Slip op. at 6 (citation omitted).
The court also rejected the argument that Clemons was overruled by Ring v. Arizona, 536 U. S. 584 (2002), and Hurst v. Florida, 136 S. Ct. 616 (2016), which require a jury to determine facts supporting an aggravating factor. The petitioner argued that an appellate court could no longer reweigh aggravating factors under those cases and that a jury determination was required. This too was rejected. A jury need only find the facts in support of the aggravated factor; states are free to allow the trial court to make the ultimate decision on whether to impose a death sentence, so long as any facts necessary to support the aggravating factor were found by a jury. The court noted:
. . .[I]n a capital proceeding just as in an ordinary sentencing proceeding, a jury (as opposed to a judge) is not constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range. . .In short, Ring and Hurst did not require jury weighing of aggravating and mitigating circumstances, and Ring and Hurst did not overrule Clemons so as to prohibit appellate reweighing of aggravating and mitigating circumstances. Id. at 7.
The petitioner also pointed to the fact that no jury determined the facts of the factors in aggravation supporting his death sentence as Ring and Hurst require. This claim was foreclosed by the fact that Ring and Hurst were decided after the petitioner’s direct appeal became final. Those cases therefore do not apply retroactively to cases (like the petitioner’s) on collateral review under Schriro v. Summerlin, 542 U.S. 348 (2004). The court rejected the argument that the Arizona Supreme Court’s reweighing of aggravating and mitigating factors re-opened direct review. The Arizona Supreme Court categorized its decision as collateral review, and the U.S. Supreme Court declined to disturb that interpretation of state law. “As a matter of state law, the reweighing proceeding in McKinney’s case occurred on collateral review.” Id. at 8 (emphasis in original). The Arizona Supreme Court’s judgment was consequently affirmed by a 5-4 majority. Chief Justice Roberts, and Justices Alito, Gorsuch, and Thomas joined the majority opinion.
Justice Ginsberg dissented, joined by Justices Breyer, Sotomayor, and Kagan. The dissenting justices disagreed with the majority that the Arizona Supreme Court’s action in reweighing sentencing factors was a collateral proceeding. In their view, that proceeding was a re-opening of direct appeal proceedings, and Ring applied. The dissenting justices would have found the death sentence unconstitutional and reversed the judgment of the Arizona Supreme Court.
No Bivens remedy against U.S. Border Patrol agent for cross-border shooting
Hernandez v. Mesa, ___ S. Ct. ___, 2020 WL 889193 (Alito, J.). This case arose from the cross-border shooting of a 15-year-old Mexican child by a U.S. border patrol agent. The parents of the child sued the agent in federal court for Fourth and Fifth Amendment violations pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Bivens found an implied cause of action for constitutional violations by federal officers where no statutory authorization for damages exists. The scope of a Bivens claim has been limited by the Supreme Court over time, and separation of powers concerns caution against extending Bivens to new context, a “disfavored judicial activity”. See Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). In determining whether a Bivens remedy is available, the court first determines whether the claim involves new context. New context is defined broadly. “We regard a context as ‘new’ if it is different in a meaningful way from previous Bivens cases decided by this Court.” Slip op. at 10. If the claim presents new context, the court then determines whether there is a “reason to pause before applying Bivens to new context or to a new class of defendant . . .” Id.
Bivens has been applied to Fourth and Fifth Amendment claims before in the context of illegal search and arrest in New York City, and to sex discrimination by a congressman in Washington, D.C. A cross-border shooting, however, was new context according to the majority. “There is a world of difference between those claims and petitioners’ cross-border shooting claims, where ‘the risk of disruptive intrusion by the Judiciary into the functioning of other branches’ is significant.” Id. at 11. Here, the court found that the foreign policy implications of extending Bivens to a cross-border shooting was factor against extending the remedy. “The political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns.” Id. at 12 (citation omitted). National security concerns were another factor against extension of Bivens to this context. “Since regulating the conduct of agents at the border unquestionably has national security implications, the risk of undermining border security provides reason to hesitate . . .” Id. at 17. Further, that Congress has limited the ability to recover damages from the actions of U.S. agents while abroad also indicates the need for caution. It is the role of Congress, not the courts, to fashion damages remedies, and Congress has indicated its intention to limit judicial remedies for acts of federal officers abroad by repeatedly refusing to authorize such causes of action. Concluding, the majority observed:
In sum, this case features multiple factors that counsel hesitation about extending Bivens, but they can all be condensed to one concern—respect for the separation of powers. . .Congress’s decision not to provide a judicial remedy does not compel us to step into its shoes. . .When evaluating whether to extend Bivens, the most important question ‘is who should decide’ whether to provide for a damages remedy, Congress or the courts? The correct ‘answer most often will be Congress.’ That is undoubtedly the answer here. Id. at 22-23.
The Fifth Circuit’s judgment dismissing the suit was therefore affirmed by 5-4 vote. Chief Justice Roberts, and Justices Thomas, Gorsuch, and Kavanaugh joined the majority opinion. Justice Thomas, joined by Justice Gorsuch, wrote separately to advocate that Bivens be overruled altogether.
Justice Ginsberg authored a dissent, joined by Justices Breyer, Sotomayor, and Kagan. According to the dissent, this was not new context and there were no justifications sufficient to deny a Bivens remedy. “Rogue U.S. officer conduct falls within a familiar, not ‘new,’ Bivens setting.” Id. at 30. The plaintiffs have no other possible recourse, and this case was “not an isolated incident.” The dissenting justices would have reversed and allowed the claim to proceed. Justice Ginsberg concluded:
In short, it is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing. I resist the conclusion that ‘nothing’ is the answer required in this case. Id. at 42 (Ginsberg, J., dissenting).