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The cases here in 2004 were merely procedural. One is very close to me, for George Banks killed 13 people in my hometown of Wilkes-Barre in 1982. I would have agreed with the majority on both these cases. Hey, it happens rarely that I disagree with the four moderates.  However, I refuse to apply an impossible standard to the death penalty.  Outside of question of guilt, I regard execution a condign punishment for first-degree murder.

Beard vs Banks
Does Mills vs MD and McKay vs NC apply retroactively?
Invaid are capital sentencing which require juries to disregard mitigating factors not found unanimously.  The Third Circuit applied Teague vs Lane, which denied retroactively outside two exceptions, and concluded that Mills was not a new rule.
Thomas + Rehnquist, O Connor, Scalia, & Kennedy
Mills is a new rule without a Teague exception.
Test:
A  Teague - whether the rule was new after final conviction, then whether it falls within an exception
B  Respondent's conviction did become final before Mills.  The Pennsylvania Supreme Court, by considering the merits, changes the finality after Mills.
C  Mills announces a new rule.
It considered only obstructions to the sentencer's ability to consider mitigating circumstances.
The Third Circuit didn't apply Teague because the PA Supreme Court had applied Mills.  We reversed in Horn vs Banks (2002), requring Teague as the test.
The Teague test:
-- when the conviction became final
-- the legal landscape then existing
-- whether the rule is new
If the rule is new, then it applies only to rules forbidding punishment to a certain class of defendants or category of punishment. or
"watershed rules implicating the fundamental fairness and accuracy of the criminal proceeding
Stevens + Souter, Ginsburg, & Breyer, dissent
We find the Mills rule an application of the previous cases
Therfore, reasonable juries could have read Pennsylvania's jury instructions and verdict form to impose a unanimity requirement with respect to mitigating cirumstances.
Why I agree: the PA Supreme Court had already applied the Mills rule to Bank's case and denied relief.  Therefore, there is no need to further litiigate whether this rule could overturn the sentence of death.  Retroactivity does NOT apply.

Schriro vs Summerlin
Ring vs AZ (2002) -- aggravating factors to justify the death penalty must be proved to a jury rather than a judge    Is Ring retroactive?
Scalia + Rehnquist, O Connor, Kennedy, & Thomas
A  The new rule is only a procedural, not a substantive one, applied only limitedly retroactively.
B  Ring, as a procedural, did not alter the range of conduct or class of persons subject to the death penalty.
C  Ring did not announce a watershed rule of criminal procedure under the test of Saffle vs Parks.
The Ninth Circuit invalidated death in 2003 under Ring.
A new rule "applies" only to pending criminal cases, Griffith vs KY (1987).
Sustantive rules apply otherwise under Bousley vs US (1998), because they "necessarily carry a significant risk that a defendant stands convicted of an 'act that the law does not make criminal' or faces a punishment the law cannot impose upon him", quoting Davis vs US (1974) .
Breyer + Stevens, Souter, & Ginsburg, dissent
Ring was a "watershed" procedural ruling.  The Eighth demands the use of a jury in capital sentencing.
 

Roper vs Simmons, the Juvenile Death Penalty
 
Kennedy+Stevens, Souter, Ginsburg, & Breyer
The eighth prohibits the death penalty to juveniles as "unusual", under the same criteria as toward the mentally retarded.  Atkins vs VA (2002) overruled Stanford vs KY (1989), showing the national consensus developed in sixteen years.  Mental retardation impairs culpablity.  Juveniles are also susceptible to immature and irresponsible behavior, vulnerability, and lack of control over their immediate surroundings, as they struggle to define their identity.
Thompson vs OK (1988) applied to those under 16.  We expand it to 18.
Thompson noted that no state set the age under 16, used civilized standards, and rarely used the juvenile death penalty
less culpability eliminates retribution and deterrence
Stanford avoided the question of the juvenile death penalty.  Both Stanford and Penry vs Lynaugh (1989) used a lineup of states to prove the death penalty was NOT unusual -- the major point in the argument of the majority -- it is NOW usual to execute juveniles among the states
Atkins reopened the question of Supreme Court review of the acceptability of death under the Eighth
Basically, the majority used Atkins to apply to all juveniles as the same criteria as the mentally retarded, using the same lines of argument to prohibit the death penalty.  Unfortunately for them, Sandra Day O Connor clarified why this line of argument falls, and I agree with her only (not the other dissenters).
 
O Connor, dissent
Neither contemporary societal values nor moral proportionality have use here; there is no evidence that as a class adulescents are less culpable than adults.
Thompson did NOT establish a national consensus as constitutional law.
(O Connor concurred in the result, which set the age at 16, and required states to specify a minimum age below 16.  Some states DID keep the age at 16 or 17.)
Atkins did not establish a definite class to exempt from the death penalty, but allowed the states to determine whether the murderer had independent moral judgment and major cognitive and behavioral deficits which impaired retribution and deterrence.
Therefore, Thompson did NOT establish a minimum age for the death penalty, and Atkins did NOT establish a class outside the death penalty.
 
Scalia + Rehnquist & Thomas, dissent
basic argument of deferring to the states
attacking international consensus as a factor (except when it serves them)
attacking the weak points in the majority I've already noted

KS vs Marsh (2006)
 
Kansas allows a unanimous jury to impose the death penalty if mitigating circumstances do not outweigh aggravating circumstances.
The Kansas Supreme Court found the statute facilly unconstitutional because juries must impose death when equipoise.  It affirmed the sentence for aggravated burglary and premeditated murder and remanded a new trial for capital murder and aggravated arson.  Therefore, Marsh may not get the death penalty.
 
Overruled  Thomas + Scalia, Kennedy, Roberts, and Alito
Walton vs AZ (1990) allowed the burden of proving mitigation on the defendant for leniency.  Kansas also requires the prosecution prove beyond a reasonable doubt that mitigators do not outweigh aggravators.
 
The trial must allow mitigators:
Lockett vs OH (1978), Eddings vs OK (1982), and Skipper vs SC (1986)
 
Therefore, there is no unconstitutional issue.  In fact, Kansas went beyond Walton by requiring the prosecution to prove beyond a reasonable doubt that aggravating circumstances are not outweighed by mitigating circumstances.
 
Scalia, concurrence in answer to the dissent:
 
These cases do merit our attention.
The Kansas Supreme Court used federal cases to rule on the Kansas law.  When we correct a state court's federal errors, we return power to the state and to its people.
 
Further restrictions of the death penalty must come under the constitution or its practice.
"The American people have determined that the good to be derived from capital punishment -- in deterrence and perhaps most of all in the meting our of condign justice for horrible crimes -- outweighs the risk of error.  It is no proper part of the business of this Court, or of its Justices to second-guess that judgment much less to impugn it before the world, and less to frustrate it by imposing judiciously invented obstacles to its execution."
 
In short, if there is equipoise of mitigators and aggravators, the death penalty may be imposed.  In this case, Kansas went beyond the standard by requiring a unanimous jury and the prosecution to prove beyond a reasonable doubt that mitigators do not outweigh aggravators.
The dissent really has nothing to argue.  Walton controls, and the defendant must prove mitigators.  It requires nothing of the prosecutor to prove the lack of mitigators.

Both caese refused to apply the new ruling retroactively because it was not a fundamental ruling on the sentencing phase.  In both, the state supreme courts also refused to vacate the death sentence in light of the new rules.

supremecourt1967.jpg

My favorite Supreme Court from 1967, going the same way as above:
Chief Justice Earl Warren in center
Hugo Black to his right. (1937)
William O Douglas to his left (1939)
John Marshall Harlan right of Black (1955)
Willaim Brennan left of Douglas (1956)
Potter Stewart (1958)
Byron White (1962)
Abe Fortas (1965)
Thurgood Marshall (1967)
Although I'd prefer Arthur Goldberg instead of Fortas.