Courthouse Steps Decision Teleforum: McKinney v. Arizona - And the Future of Capital Sentencing

Listen & Download

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. 


Oramel H. (O.H.) Skinner, Solicitor General for Arizona


Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.




Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on Wednesday, February 26, 2020, during a live teleforum conference call held exclusively for Federalist Society members.    


Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon’s topic is a Courthouse Steps Decision discussion on “McKinney v. Arizona – And the Future of Capital Sentencing.” My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society. 


      As always, please note that all expressions of opinion are those of the expert on today's call.


      Today we are very fortunate to have with us O.H. Skinner, who is the Solicitor General for Arizona. After our speaker has his remarks, we will have time for your questions. Thank you very much for sharing with us today. O.H., the floor is yours.


Mr. Oramel (O.H.) Skinner:  Thanks so much, Wes. Well, everybody this is a great opportunity that I’ve never had before to share my thoughts on a case as an expert that I was able to argue and win. This is a big win that we see for the State of Arizona, for Attorney General Brnovich, and for the rule of law. It’s a very short opinion so I will only give a few bits about the procedural history. But then what I’ll do because, at least when I call into these, what I always like to know is what are the big takeaways of the case.


      So procedurally, this is a case where the real wrinkle came in where somebody was convicted and the first time an error is identified is at the en banc in the habeas context where the Ninth Circuit identifies an Eddings error where they believe that the Arizona Supreme Court had identified mitigation but had given it no weight as a matter of law.


      So now we’re coming down from the en banc habeas process, and the Arizona Supreme Court had previously in the ‘90s and now is again asked to correct the identified Eddings error, which simply went to the weight that was to be given to the mitigation evidence. And to do so in a collateral posture that would not reopen direct review and would therefore not trigger any new rules of criminal procedure that had come down since the conviction became final. That’s particularly salient in the state of Arizona because this conviction became final long before Ring v. Arizona. And Ring of course, as people on a call like this would know, goes to the juries need to find aggravators as opposed to a judge.


      So we have a judge-found aggravation case, and the Arizona Supreme Court, after the en banc Ninth Circuit identifies an error, the Arizona Supreme Court looks at the record, weighs the mitigations, gives it weight, says that it is inadequate to change the sentence and affirms the sentence.


      The Supreme Court of United States grants cert. And so there, we end up having a case in which a lot of the discussion is about retroactivity of new rules of criminal procedures, state direct proceedings for state collateral proceedings. And this opinion’s very short. It’s only a few pages, seven pages. But the two things that I will flag: one of them -- one set of them is maybe a little bit less novel but are nonetheless important. And the second ones, I think, are very big for the rule of law.


      So the first set of categories is the last part of the opinion, pages six to seven, that discusses direct versus collateral. So a big aspect of the oral argument and a big aspect of the case is that the Arizona Supreme Court had been clear that the proceedings that they had engaged in that were under review here were collateral in nature; therefore, there’s no need to apply Ring or Hurst or anything else to this case because those were all new rules that did not apply retroactively to the case.


      The petitioner made a lot about the fact that this is obviously a do-over of the direct review proceedings and that no matter what the label was that the Arizona Supreme Court had put on this, it didn’t matter. Attorney General Brnovich, our office, we’ve always believed that when a state high court weighs in as a matter of state law on its own procedures and says what those procedures are, those get deference. And what you see in pages six to seven of the opinion here is that Justice Kavanaugh confirms that that is the approach that is going to be taken here.


      There’s a nice quote: “Under these circumstances,” which is where Arizona had explained that it was conducting an independent review on a collateral proceeding; had cited a prior case and was very clear about what it was doing, “under these circumstances, we”—the Supreme Court—“may not second-guess the Arizona Supreme Court’s characterization of state law. As a matter of state law, the reweighing proceeding in McKinney’s case occurred on collateral review.”


      That’s a big confirmation of what we don’t think is a novel concept but the confirmation of state courts of last resort get to be the arbiters of their own state law questions. That’s big.


      Also in this analysis, as it goes on to the next page, is another big component which is Justice Kavanaugh makes clear that collateral proceedings can fix errors from the direct proceeding that were only found on collateral. So here the underlying Eddings error that was identified by the Ninth Circuit sitting en banc happened on direct but was identified in the habeas process. And what is -- in discussing Clemons v. Mississippi, Justice Kavanaugh is very clear at the bottom of six going onto seven of the slip op that that is an available path. That analogizing to harmless error, it is possible for a court to correct an error from the direct review process in a collateral proceeding. When a court conducts harmless error review in the habeas context, that’s what they're doing. They're correcting something that occurred on direct, in collateral. And he says that Clemons supports doing that in these capital cases.


      So that’s big. We think, again, that it’s not particularly novel, but it’s a very clear statement from the Supreme Court. So when it comes to directing collateral, you have a confirmation here of federalism principles. State high courts get to make their own determinations about their law so long as they're clear about doing it and what they were doing and that they were consistent in how they did it. And two, a collateral proceeding can fix an error from the direct proceeding. That’s very important. That’s something that prevents you from having iterative re-openings of direct proceedings and the upending of convictions that were long ago final.


      Now the second set of important things here that I think probably reach even broader than the two things I just flagged is a very strong confirmation of what Ring v. Arizona and Hurst v. Florida do and don’t require. This has been a huge subject of discussion in the criminal bar. It’s been a huge subject of discussion in the death penalty context. You had a lot of people read Ring v. Arizona and Hurst v. Florida as saying that not only does the jury have to find aggravators but that the jury also probably has to find mitigators. And the jury has to do the balancing of aggregation and mitigation and arguably select the death sentence.


      That lead a lot of state legislators, which I will says even in Arizona to, basically, statutorily enact such a scheme. I think it was there was a concern about what Ring and Hurst actually required. But here you have in very short order, Justice Kavanaugh, on the bottom of page four of the slip op onto page five, says some very striking things.


      Bottom of page four: “Under Ring and Hurst, a jury must find the aggravating circumstance that makes the defendant death eligible.” No mention of mitigation. “But importantly, in a capital sentencing 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.” This is a position that many of us had believed was true but was not 100 percent clear after Ring and Hurst. This is a clear statement from the United States Supreme Court that Ring and Hurst don’t require jury balancing; they don’t require a jury imposition of the death sentence; and there is, what I think is at least a very important silence, not saying that a jury has to find a mitigator.


      This is important. The Ninth Circuit has a decision that it is no longer going to apply because the Ninth Circuit had said that a jury much do this. Later on that page five, you're going to see “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.”


      So you’ve got very important stuff happening in just two paragraphs -- three paragraphs here. One: Clemons v. Mississippi that talks about appellate reweighing of aggravation and mitigation to the extent that there’s an error. That’s still good law. As we just discussed, it’s also means that you can do that in a collateral proceeding not just on direct. Clemons was a direct case.


      There is no need for jury balancing of aggravation and mitigation. And it looks very much like there’s no need for a jury to find mitigation. So that’s basically where I’ll end this, but I think there is, in seven pages of, I think, very easy-to-read opinion, Justice Kavanaugh has laid down substantial markers that I think change the landscape of death penalty sentencing, direct versus collateral, and retroactivity. And does a lot in just a very small number of pages. So with that, Wes, I’ll give it back to you to the extent that you want to open the floor up to any questions or comments.


Wesley Hodges:  Fantastic. Well, thank you so much, O.H. Here is our first caller.


Caller 1:  Yes, hi. Thanks for giving this presentation. I’m a federal habeas litigator. And one of the questions—I haven’t really read this in detail—but the part you just pointed out about stating that Ring and Hurst did not require jury weighing of aggregators and mitigators. Is there any reason to believe that is dicta in this case, or was that directly at issue?


Mr. Oramel (O.H.) Skinner:  So we made very clear in our filings that we did not believe that the Court needed to reach this question in order to rule in our favor. Keep in mind: an important argument in the case was that because direct was not reopened, neither Ring nor Hurst applied to the case because they're not retroactive.


      The way that Justice Kavanaugh wrote the opinion, though, he discusses the effect of Ring and Hurst on Clemons v. Mississippi. The petitioner had two was of winning this case, he said, which was on: Ring and Hurst apply and therefore, we have an invalid aggravator in this case. Or tow, Ring and Hurst undermine Clemons, and so there is not appellate reweighing that’s available, and we needed to go back to the trial court.


      So Justice Kavanaugh could’ve written the opinion without addressing the effect of Ring and Hurst on Clemons or whether or not this would be the outcome if Ring and Hurst did apply. But crucially, he structured the opinion such that he does discuss what the effect of Ring and Hurst on Clemons are. And whether or not Clemons is still good governing law for this case. And the way he has structured that I think that there is no reasonable argument that it’s dicta. It’s core to his analysis of whether Clemons still stands here. And he says Ring and Hurst don’t undermine Clemons because Ring and Hurst don’t change the fact that you can have weighing done by a judge, and Clemons says that that weighing can be done at the appeals court level.


      So I was always taught that what makes something a holding is the reasoning of the opinion and whether it is essential to the opinion. It is an essential component of the Clemons portion of this opinion. Justice Kavanaugh could’ve written the opinion differently, could’ve chosen to address fewer questions, but the way he structured it and the way the analysis flows, I think it’s a crucial part of the opinion.


      To the extent that this call is largely going to be populated by the criminal practioners given the practice group, I think there’s a lot of tools depending upon -- our first question was from a fellow habeas litigator. If you're litigating cases like this or if you are dealing with criminal questions, I do think that you should not overlook how this short but very strong opinion, there’s not -- something that was tricky about both the Ring and Hurst were that they had certain sections that seemed to indicate one direction, and then they would have other language about another direction, in part because they were a little bit longer than this opinion. This opinion is so short; the statements are very clear; they are unequivocal, and there should be a lot in here.


      To the extent that this is a helpful case for you, there’s a lot in here that can be used to clarify direct versus collateral, that can clarify how errors can be fixed in the habeas process without reopening a whole case. And big clarifications for legislators and for practioners on what Ring and Hurst and Clemons mean and who must play a role in the capital sentencing process. Obviously, a lot of states have moved to a system where juries are the central element of the capital sentencing process. This opinion makes very clear that if a state wants to, they can walk that back and still be in compliance with Ring and Hurst by just having a jury find an aggravator and have a judge do the actual balancing because balancing --


      You know, the language here that I think is interesting is the balancing has basically been treated to make the ultimate sentencing decision within the relevant sentencing range. You're seeing the Court confirm that selection of the death penalty is actually no different than selecting any other sentence that is within the existing sentencing range. Just like a jury doesn’t have to decide that somebody gets 15 years when they're in a range that could be 10 to 20, or pick the exact number of months. A judge can do that. Once somebody is death eligible because of an aggravator, this opinion confirms that a judge can make the determination between the available range of sentences, which includes death or less. We will see, obviously, what the actually on-the-ground effect of that is. But as a matter of law, that is a huge clarification and shift in what people were thinking. I think the betting odds were not 100 percent that that would be the outcome here.


      So there’s definitely weapons on the battlefield that people can pick up here and use in their cases that are both death penalty cases or just otherwise habeas cases. And I would urge people to take a look at it. You only have to read seven pages. And in those seven pages, you should be able to find many things that will be of use to you. I hope people are able to use them for the rule of law and for good, in some platonic sense.


Wesley Hodges:  Well, thank you, O.H.


Mr. Oramel (O.H.) Skinner:  Well, I hope this opinion is useful to those outside of Arizona. It certainly means a lot to Attorney General Brnovich. We’re making big efforts in the state to try to get our death penalty process moving again, and this will be a big part of it. And to the extent that others live in the Ninth Circuit, this is a very helpful opinion that will help alleviate some of the outcomes of Ninth Circuit decisions. So I hope everyone is able to use it for good.


Wesley Hodges:  Well, thank you, O.H. It really is our privilege to have to speak with us today. So on behalf of The Federalist Society, I’d like to thank you for the benefit of your valuable time and expertise. We welcome all of your feedback by email at [email protected]. Thank you all for joining us for the call today. We are now adjourned.


Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at