April 25, 2007

The jury must be able to "give meaningful effect or a 'reasoned moral response' to a defendant's mitigating evidence."

Wrote Justice Stevens, as the Supreme Court overturned three death sentences. Chief Justice Roberts writes in dissent: "'Whatever the law may be today, the Court's ruling that 'twas always so -- and that state courts were 'objectively unreasonable' not to know it -- is utterly revisionist,'' Roberts said.

I'd like to explain that to you, but I've got to get my notes together for my federal jurisdiction class, where we happen to be studying the very aspect of habeas corpus law that you need to know to understand what Roberts is talking about.

From the Roberts opinion:
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), however, a state-court decision can be set aside on federal habeas review only if it is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U. S. C. § 2254(d)(1). When this Court considers similar challenges to the same jury instructions five separate times, it usually is not because the applicable legal rules are "clearly established." The Court today nonetheless picks from the five precedents the one that ruled in favor of the defendant -- Penry I -- and anoints that case as the one embodying "clearly established Federal law." In doing so the Court fails to give any meaningful weight to the two pertinent precedents subsequent to Penry -- Graham and Johnson -- even though those cases adopted a more limited view of Penry I than the Court embraces today.


NE2d said...

I think you've got an extra quotation mark in there. I just had a rather surreal moment thinking that Roberts wrote "I'd like to explain that to you, but I've got to get my notes together for my federal jurisdiction class." in the opinion.

Simon said...
This comment has been removed by the author.
Simon said...

More from Our Fearless Leader:

"We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to “clearly established” federal law. ... When the state courts considered these cases, our precedents did not provide them with “clearly established” law, but instead a dog’'s breakfast of divided, conflicting, and ever-changing analyses."


Simon said...

Wow. Reading this dissent - and you can put it next to his Mass dissent, too - you can really tell that Roberts is former clerk and protege of Rehnquist, J., not Rehnquist, C.J. He's handy with these dissents.

Richard Dolan said...

The opinion by CJ Roberts is a real gem. It ends with this exemplar of judicial writing (skewering) at its best:

"Still, perhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented 'clearly established' federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but tunc pro nunc. Encouraged by the majority’s determination that the future can change the past, I respectfully dissent." "Tunc pro nunc" and "the future can change the past" -- just wonderful stuff.

Except for a few prisoners on death row in Texas, and the Texas prosecutors, this decision won't make much difference. As the opinions in this decision all say, the underlying provisions of state law governing the jury instructions that must be giving at a capital sentencing proceeding were changed about 15 years ago. Thus, the issue is unlikely to have much impact on death sentences issued since that change.

The most obvious lesson here, as CJ Roberts says, is that the victors get to write the history. Apart from that truism, these opinions show how these death penalty cases take on a sort of judicially devised immortality. They just never end. Today's decision is ostensibly focused on the Texas state court's decision in 1999 of a state habeas petition attacking a death sentence imposed around 1990, relating to a murder committed in 1987 (to which the petitioner confessed).

Second, the case shows how the individual justices' views on the merits of these death penalty issues trump any consideration of stare decisis, or even any sensible consideration of the Court's own wandering precedents. The Roberts opinion is bitingly funny in describing the sheer bedlam that any outside observer must see in the string of conflicting opinion issued by the Court addressing these Texas rules -- a plurality becomes a majority becomes a concurrence, becomes a dissent becomes (miarbile dictu) a majority once again. All constantly in flux. What a show, and CJ Roberts is the perfect deadpan showman to write it all up.

Simon said...

I've put together a highlights reel from the Roberts dissent. This is really good, really strong stuff.

Mark said...

While Roberts' dissent is clever, it is nevertheless wrong. As one of the commenters on the Volokh site explained, the state of the law was clearly established, even if it was not clear that it was clearly established. Otherwise, Penry I has no meaning whatsoever.
I actually wonder if there is any death penalty case where Roberts would find for the defendant...

By the way, the opinions go to show what a terrible statute the AEDPA is as it almost entirely curtails any meaningful review of the state court decisions.

Sloanasaurus said...

this is nothing more than more judicial activism from the liberals on the court. They don't like the death penalty - they think it's wrong so they have taken it upon themselves as the super legislature to decide otherwise.

Lets get real. The liberals overturned the sentences because the defendents were not given evidence that would mitigate the death sentence, such as how they were treated as a child????? How pathetic. If you committed murder 1, you should be given death, regardless of any sob story.

I say bring the jury back and give them the childhood story so we can get on with the executions of these heartless murderers.

Sloanasaurus. Read more at John Adams Blog.

Simon said...

We'll have to agree to disagree about AEDPA, but assuming you're referring to this Volokh thread, which comment(s) are you saying "explaine[s] the state of the law was clearly established"? Do you mean Kovarsky's comment?

Mark said...


Yes, you are correct, I was talking about Kovarsky's comment.
On the AEDPA, yes, we'll have to disagree; I think that federal courts should be able to provide meaningful review of state courts' decisions in life and death cases; especially of the courts like Texas courts, which in 99.9% of the cases rule against defendants and themselves provide no meaningful review of trial courts.

Simon said...

Mark, with all due respect to Kovarsky, who's one of the best commenters at Volokh, I thought his comment ran the gamut from irrelevant ("If there is not something in Penry that is 'clearly established,' Penry has no meaning at all" is besides the point given subsequent decisions narrowing Penry, as Roberts' dissent points out) to totally incoherent ("Does the law have to be clearly established, or does it have to be clear what is clearly established" - wha...?). Even at most sympathetic reading, I'm not sure his comment even approaches the weighty task you cite it for, of showing the Chief's opinion to be wrong.

Revenant said...

Texas courts, which in 99.9% of the cases rule against defendants

Assuming that it is accurate and not just hyperbole, why does the 99.9% figure mean anything? What percentage *should* have ruled against the defendants? Have you considered that capital cases are obviously going to generate a far higher percentage of baseless appeals than regular prison sentences do?

I would like to see a lot less time and money put into determining if a rapist-murderer really truly should be on death row or just doing life without parole and a lot more time and money put in to things like DNA testing of death row inmates. After all, if the guy really killed someone then who cares if he fries, but if he really is innocent then life in prison isn't called for either.

joe said...

The last paragraph of Scalia's dissent in Abdul is perfect:
"The individuals duly tried and executed between Johnson and today’s decisions were not, in my view (my view at the time of Johnson, and my view now), entitled to federal judicial invalidation of their state-imposed sentences. That is because in my view the meaning of the Eighth Amendment is to be determined not by the moral perceptions of the Justices du jour, but by the understanding of
the American people who adopted it—which understanding did not remotely include any requirement that a capital jury be permitted to consider all mitigating factors. If, however, a majority of the Justices are going to govern us by their moral perceptions, in this area at least they ought to get their moral perceptions right the first time.Whether one regards improvised death-is-different jurisprudence with disdain or with approval, no one can be at ease with the stark reality that this Court’s vacillating pronouncements have produced grossly inequitable treatment of those on death row. Relief from sentence of death because of the jury’s inability to give “full effect” to all mitigating factors has been made available only to those who have managed to drag out their habeas proceedings until today. This is not justice. It is caprice."

Mark said...


I disagree.
Kovarsky pointed out that a) the law was clearly established by Penry even despite subsequent cases narrowing Penry's holding; despite b) the fact that the law was clearly established was a close call. His point, as I understand it and with which I agree, is that a law can be "clearly established" even when not everyone believes it is clearly established. Yes, it was a close call in this case; however, the majority's position is closer to me. While I have not read the cases closely and I am not a criminal defense attorney, I understand that the majority relies on cases other than Penry as well.

This is the problem with the AEDPA: because its literal reading often leads to manifestly unjust results, you can expect that many judges will do whatever they can to find a way around the AEDPA, especially because in many ways, "clearly established" is in the eyes of the beholder.
And I wholeheartedly agree with judges who don't miss forest for the trees, so to speak.

Simon said...

Well, the point isn't whether the law was clearly established the week after Penry was decided. As the Chief says, "[w]hat is pertinent under AEDPA ... is whether federal law was clearly established by our decisions when the state court acted."

Rather, the point is that even if Penry did make the law clear at that time, cases decided between Penry's decision in 1989 and the time "when the state court acted" muddied the waters again - specifically, Graham v. Collins, 506 U.S. 461 (1993) and Johnson v. Texas, 509 U.S. 350 (1993). The best (or at least, the most immediately satisfying) evidence that those two cases were inconsistent with Penry and therefore muddied the waters again is the actions of today's majority at the time those two cases were decided. The Chief explains well: "the reading of Penry I in Graham and Johnson prompted every one of the remaining Justices who had been in the majority in Penry I on the pertinent question to dissent in Graham and Johnson, on the ground that the Court was failing to adhere to Penry I."

Boaz said...

"A law can be 'clearly established' even when not everyone believes it is clearly established."

"clearly established" doesn't require unanimity, but it requires some type of consensus. I cannot understand how anybody reading the majority opinion could be convinced that the law was clearly established. The benchmark for deciding whether something is clearly established, at least how I've used it, is that if it takes reconciling precedents and more than a short explanation, it wasn't clearly established.

Roberts nails it: a state court reading the line of opinions addressing the issue would see an ongoing debate over the meaning of Penry I.

God help police officers if Stevens imports his undestanding of "clearly established" to qualified immunity cases.

tjl said...

"Texas courts, which in 99.9% of the cases rule against defendants and themselves provide no meaningful review of trial courts."

This would come as a surprise to several of my clients who had their convictions reversed.

"death penalty cases take on a sort of judicially devised immortality. They just never end. Today's decision is ostensibly focused on the Texas state court's decision in 1999 of a state habeas petition attacking a death sentence imposed around 1990, relating to a murder committed in 1987 (to which the petitioner confessed."

An excellent reason for commuting death sentences to life without parole. This would divert the state's resources to more useful ends, and spare us from having to make sense of opinions like this one.

Simon said...

Re TJL's last para: yes, and it's also not the worst argument for out-and out abolishing the death penalty.