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On Tuesday, in a 5-4 decision in McKinney v. Arizona, the Supreme Court of the United States issued a landmark death penalty and criminal procedure opinion about the division between direct and collateral review and the jury requirements that the Court had previously explicated in the Apprendi line of cases, including Ring v. Arizona and Hurst v. Florida. At issue was an Arizona Supreme Court opinion that conducted an appellate reweighing of aggravation and mitigation after a remand from the En Banc Ninth Circuit for a supposed error in treatment of certain mitigation on direct appeal. 

Writing for the majority, Justice Kavanaugh clarified or confirmed several important criminal and death penalty procedure issues. First, the majority affirmed the ongoing validity of Clemons v. Mississippi and the availability of appellate reweighing of aggravation and mitigation. Second, the Court confirmed that a jury need only find the existence of an aggravating factor, and need not conduct the weighing of aggravation and mitigation or impose the particular sentence in a death penalty case.  Third, the Court affirmed that a state court conclusion as to the collateral nature of a state appellate proceeding was not subject to dispute by the Court. 

To discuss the case, we are joined by Oramel H. (O.H.) Skinner, Solicitor General for Arizona.

As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.