JURIST Guest Columnist LTC John M. Bickers, a law professor at the US Military Academy at West Point, says that two recent decisions regarding the death penalty show that the Supreme Court seems to accept capital sentencing as a punishment, as long as they can set the boundaries for sentencing.

In a pair of cases released last month, the Supreme Court considered the applicability of retroactivity rules to aggravating and mitigating factors in death penalty cases. Although the subject is of sufficiently limited technical nature as to be of value primarily to practitioners in this area, the cases do seem to reflect a new and fundamental decision of the Court that there is nothing particularly unusual or different about capital sentencing.

The course of death penalty law under the Constitution has been an odd and wandering one since 1972, when a badly divided Court was able to agree only that the manner in which capital sentences were arrived at was unconstitutional (see Furman v. Georgia). Four years later the Court approved Georgia's attempt to revive the death penalty by requiring the sentencing authority to consider both aggravating and mitigating circumstances before imposing such a punishment (see Gregg v. Georgia).

That case began, rather than ended, the Court's foray into specific death penalty rules. For almost three decades, the Supreme Court has weighed and evaluated the schemes developed by the states for capital sentencing. The area has represented a version of federalism as it is understood by many modern observers: the states operate as laboratories, resolving common problems in diverse ways. The Supreme Court acts as a boundary judge, striking down those experiments which exceed Constitutional tolerance.

In two relatively recent cases, the Court announced just such Constitutional limits on state authority. In an unintentional but fitting symmetry, one dealt with each side of the Gregg equation: Ring v. Arizona required that juries, not judges, find the aggravating factors necessary before a sentence of death could be imposed, and Mills v. Maryland rejected a rule that permitted juries to consider mitigating factors only when they were found unanimously. Both cases served to slow but not stop capital sentencing, but each was well enough grounded in the fundamental role of the jury that they were not exceptionally controversial. The affected states changed their rules and procedures, and the criminal justice system resumed its operation.

Enter the retroactivity problem. To oversimplify slightly a complex area, constitutional decisions of the Supreme Court in the criminal law apply immediately to all ongoing cases. This includes, perhaps unsurprisingly, those cases pending on direct appeal. When the Court announces as a Constitutional a principle that had not previously been recognized—such as the rule that peremptory challenges may not be used in a race-conscious way (Batson v. Kentucky) — that rule affects those cases which are at trial, or in which an appeal is still possible.

A different rule exists where those appeals are over and the sentence is subject only to collateral attack. In a nod to the special importance of finality in the criminal law, the Court in Teague v. Lane limited the applicability of its own holdings when cases appear in federal court in the form of a habeas corpus proceeding. Because the writ of habeas corpus, the Great Writ, allows anyone to challenge the conditions of their custody, for the duration of that custody, the Court in Teague established limits to retroactivity during such collateral attacks on sentences. When a prisoner seeks release or retrial in the habeas setting, says Teague, the court must first discover the date at which the sentence became final—that is, the date on which the direct appeal routes were exhausted, either by decisions against him or be the expiration of time limits in which he might file for further review. Then that date is compared to the date of the announcement of the constitutional rule the prisoner seeks assistance from: if the constitutional ruling by the Supreme Court came after the date the sentence became final, it will not be applied to his case.

Teague itself recognized two general exceptions to this rule. The first is when the announced constitutional rule changes the criminal law substantively. For example, the recent landmark case of Lawrence v. Texas held that the Constitution prevents states from criminalizing certain personal sexual choices. This is clearly a substantive change. While it is unlikely that any states contained a large population confined after conviction for adult, private, noncommercial, consensual sodomy, it is equally clear that a habeas petition brought after Lawrence would secure the freedom of any person so confined. The Teague limit on retroactivity will not serve as a barrier keeping anyone in prison once the Supreme Court has held that the conduct for which he was imprisoned is constitutionally protected.

The second exception to the Teague bar is where the change is a procedural one, but is such a "watershed" change that it fundamentally alters our understanding of “bedrock” principles of criminal justice. In commenting on this rule, the Court has noted that these watershed changes must implicate fundamental fairness or substantially increase the accuracy of the proceedings. Where there has been such a procedural change in the criminal law—and the Court always cites the Gideon v. Wainwright requirement of providing defense counsel for the indigent as an example—the change will be applied on habeas as well as direct review.

The death sentences of George Banks (Beard v. Banks) and Warren Summerlin (Schriro v. Summerlin) provided the Court the opportunity to apply the complicated Teague formula to the holdings of Mills and Ring. In both cases, they found that extension of their recent death penalty decisions to habeas proceedings was barred by Teague. Neither result, in analytical legal terms, was particularly surprising. Both results, on a broader view of the nature of the Constitution, prove troubling.

In September, 1982, George Banks slaughtered thirteen people (mostly girlfriends, ex-girlfriends, and their children) in a terrible hour. The following year he received twelve death sentences from a Pennsylvania jury. The jury found that the aggravation of multiple offenses outweighed the only mitigating factor they found unanimously: extreme mental or emotional disturbance. Significantly, Banks had offered two other mitigating factors, substantial impairment of his ability to appreciate the criminality of his conduct or conform it to the requirements of the law, and a general, catch-all that Pennsylvania defined as "any other evidence of mitigation concerning the character and record of defendant and the circumstances of his offense." These two submissions became the basis for the claim which the Supreme Court resolved last month. Banks noted that Pennsylvania law required the jury to weigh only the mitigating factor found unanimously. Thus those other two potentially mitigating factors might have been disregarded even by jurors who found them to be quite compelling. Because such a scheme violates the holding of Mills, Banks asked the Court to overturn his sentence.

Two months before Banks committed his crimes, Warren Summerlin was sentenced to death for the murder of Brenna Bailey, an employee of a finance company. Unlike Banks, Summerlin’s senten
cing was done by a judge. Under the Arizona law of that time, the judge alone evaluated the sentencing evidence, found the required aggravating factors, and sentenced Summerlin to death. On the same Monday that he pronounced the sentence, Summerlin's judge, who was later removed from the bench for his heavy marijuana use, sentenced a second man to death after finding identical aggravating factors. Summerlin contended, among his many arguments, that the finding of sentencing factors by a judge alone was a violation of the Sixth Amendment right to trial by jury. Like his other contentions, the courts rejected his claim, and his sentence became final, for Teague purposes, in 1984.

As the Supreme Court viewed these two cases, Teague barred the application of Mills to Banks and Ring to Summerlin. Opinions of the Court by Justices Thomas and Scalia, respectively, analyzed the Teague issues in a direct and straightforward way. In both cases the sentences were final before the case they sought to have applied to them. In both cases the rule was new. In neither case was there a serious argument that the criminal law had been changed substantively, that the state was now precluded from punishing an offense that heretofore might be prohibited. Finally, said the Court opinions, in neither case was the procedural change a watershed of a similar magnitude to Gideon.

Justices Stevens, Souter, Ginsburg, and Breyer dissented in both cases. In Banks, Justice Stevens argued that the holding in Mills was not new. Rather, he said, the Teague bar did not apply at all. He viewed the procedure by which a single juror could control a sentence simply by rejecting a mitigating factor as a holdout (and thus preventing the jury from weighing it against any aggravating factors) as utterly arbitrary. Its rejection as unconstitutional was therefore a “natural outgrowth” of Court decisions prohibiting mandatory imposition of death for particular offenses.

In Summerlin, Justice Breyer’s dissent conceded the newness of the Ring rule. Indeed, it would be virtually impossible to do otherwise, as the Supreme Court had held precisely the same sentencing scheme to be constitutional a decade earlier in Walton v. Arizona. Instead, he argued that use of the jury in sentencing in capital cases was precisely the sort of enhancement in the accuracy of the process contemplated by Teague. Although he acknowledged that he had previously been alone in believing that the Sixth Amendment requires jury sentencing for the death penalty to occur, Justice Breyer persisted in arguing that such a sentence "must reflect a community based judgment."

In both cases, the majority probably have the more compelling view of the state of the law. In neither Banks nor Summerlin is the dissent truly successful in fitting their opposition to the procedure at issue within the retroactivity limitations set forth by Teague. Within the framework of established precedent, Justices Scalia and Thomas are quite convincing in arguing that the changes announced in Mills and Ring were new, and that they were far less significant than some of the other changes announced by the Court and found to be non-retroactive. Indeed, the very requirement of trial by jury was not held to be a retroactive one. Given that fact, it is hard to understand why the finding of a particular aggravating factor or consideration of particular mitigation should be applied retroactively. Yet the application of that very analysis creates a troubling dilemma when considering what the Constitution means in our society.

As Justice Breyer notes in his Summerlin dissent, death as a penalty is different from imprisonment. Although the majority categorically rejects the notion that the rules for retroactivity should differ in the capital context, they do not respond to Justice Breyer’s observation that an unexecuted death sentence is "an entirely future event." Indeed, it is difficult to see how they could: whatever may be said of the importance of finality for decisions which confine people for a period of time, the common understanding of finality would preclude the use of that term about a death sentence while the sentenced prisoner remains alive. The only response the otherwise-persuasive majority opinion makes is to note that such an argument calls for a rejection of Teague, and that "we would not agree with the dissent’s conclusions."

The majority opinions in both Summerlin and Banks comport with stare decisis. Both cases treat the precedent of Teague in a fair way, and in neither case is the Court forced to make particularly complex legal arguments to set out their position. Those positions, however, do require the majority to reject the notion that death is different. That they are willing to do so does not necessarily reflect a sea change in the law; it does, however, highlight the disturbing premise which underlies the Court's retroactivity jurisprudence.

This is because, ultimately, the continued acceptance of the Teague rules, with the value they place on finality, diminishes the Constitution. If the Court is to retain moral force as the final interpreter of the Constitution, it must confront the dilemma which the retroactivity rules present: if it is an enduring Constitution the Court interprets, why should a new rule not affect all cases? When Congress acts only prospectively, that is one thing: they are announcing a policy change. When the Court acts only prospectively, it is harder to define what they are doing as interpretation of a constant standard. It is easy to understand why a new invention is not applied to old cases; it is not so easy to explain why a new discovery is not.

In most cases, perhaps, the need for stability within the field of criminal law justifies the ideological cost of the dilemma. Perhaps it is simply too horrific to think of retrying or releasing vast numbers of prisoners each time the Court announces a new rule. Perhaps, too, the lack of a Teague bar would be counterproductive to the Constitution: it might well be that the Court would avoid the retrial problem by simply refraining from ever recognizing a procedural right which some states had previously not allowed. Fear of opening the prison doors might tie the Court's hands even where they saw what they believed to be a Constitutional wrong.

In death cases, though, that price seems unacceptably high. As Judge Reinhardt of the Ninth Circuit asked in his concurrence when the Summerlin case was before that court, "is it possible that prisoners will now be executed by the state solely because of the happenstance that the Supreme Court recognized the correctness of their constitutional arguments too late?" Until the Court can remove that unanswerable question by eliminating the "finality" rules of Teague from death penalty litigation, the judiciary will continue to run the risk of being thought to be making rules rather than discovering principles.

John M. Bickers is an Assistant Professor of Law at the United States Military Academy at West Point.

The opinions and conclusions reflected in this writing are those of the author and do not necessarily reflect the views of the United States Military Academy, the US Army, or any other government agency.

——–