It was an uneventful opinion day at the Supreme Court today (unless you love the Administrative Procedure Act). But two capital cases are worth noting from today’s action – one a per curiam opinion reversing an Arizona death sentence, the other a dissent from the denial of certiorari in a Louisiana case.
The Court’s PC opinion in Lynch v. Arizona found that Shawn Patrick Lynch’s death sentence violated due process because, although the State suggested Lynch’s future dangerousness, Lynch was not eligible for parole and that information was not placed before the sentencing jury. This rule comes from the Court’s 1994 decision in Simmons v. South Carolina, which held that where the State argues for a capital defendant’s future dangerousness and the only other sentencing option under state law is life without parole, the jury should be told that the defendant will not be parole-eligible.
Justice Thomas, joined by Justice Alito, dissented. Focusing at first on the facts of the crime here, Justice Thomas continued to question the correctness of Simmons and said that not only was the trial court’s instruction to the jury a correct statement of Arizona law, it is “far-fetched” to suggest that the jury’s decision would have been different had it been given current information about Arizona sentencing law. Here, Lynch and a cohort, Sehwani, killed James Panzarella after returning to Panzarella’s home from a Scottsdale bar in 2001. Panzarella’s body was found, as Justice Thomas described it, “bound to a metal chair in his kitchen. His throat was slit. Blood surrounded him on the tile floor. The house was in disarray. Police discovered a hunting knife in the bedroom. A knife was also missing from the kitchen’s knifeblock.” When police found Lynch and Sehwani, Lynch’s shoes were stained with Panzarella’s blood. In the killers’ truck were the victim’s car keys and a sweater that contained the victim’s blood. Lynch and Sehwani had also spent their days on a spending spree with Panzarella’s credit and debit cards.
In Tucker v. Louisiana, the Court denied cert, but Justice Breyer (joined by Juistice Ginsburg) dissented. Once again, Justice Breyer suggested that the Court take up the question of whether the death penalty is per se cruel and unusual in violation of the Eighth Amendment. This time, he again raised an issue he has raised before: whether the fact of geography determines who receives a death sentence. Lamondre Tucker was tried in Caddo Parish, which, according to Justice Breyer, accounts for half of the death sentences in the State but only 5% of Louisiana’s population. “One could reasonably believe that if Tucker had committed the same crime but been tried and sentenced just across the Red River in, say, Bossier Parish, he would not now be on death row,” Breyer wrote.
First, let’s assume Justice Breyer is right about that. So what? Does the Constitution require absolute uniformity among jurisdictions in imposing the death penalty? And what range of disparity between jurisdictions would be constitutionally permissible? Ten percent? Twenty percent? Surely we would not say that Ohio’s death penalty is cruel and unusual simply because Ohio could impose the death penalty for a crime that, if committed in Michigan, could not result in the death penalty at all. But, of course, perhaps the matter is different when we are talking about jurisdictions within a specific sovereignty, where the law to be applied is the same everywhere. So why does the Constitution require Caddo Parish and Bossier Parish, Louisiana to impose the death penalty at similar rates? And are there differences among cases that might explain why some defendants get the death penalty and some do not? Justice Breyer, in my view, has never satisfactorily explained the constitutional problem here, except to say that it seems arbitrary. I’m just not certain that it is as arbitrary as Justice Breyer thinks.
Which leads to my next point: it might also be reasonable to believe that Tucker deserved to face the death penalty, regardless of geography. According to the Louisiana Supreme Court’s rendition of the facts, Tucker shot and killed Tavia Sills, who was five months pregnant with a healthy unborn boy, and who informed Tucker that the child might be his. Her body was found decomposing in a Shreveport pond. Tucker gave multiple, conflicting stories about Sills’ killing (ranging from telling police he did not kill her to telling police it was accidental). Tucker, who was 18 at the time and a student in high school, also had a three-year-old son with Tamara Bates, and the State theorized that Tucker murdered Sills to save his relationship with Bates (Tucker, it turns out, was not the father of Sills’ child). The investigation revealed that Tucker had confided to a friend that he wanted to cause Sills to have a miscarriage; he confided to another friend that he pushed Sills into the pond and shot her multiple times. For more details, see State v. Tucker, 181 So.3d 590 (La. 2015).
I suspect that even in Bossier Parish, a sensible prosecutor could have viewed this as a case worthy of capital punishment. But, of course, the point that Justice Breyer and others seem to be making is that even though Tucker committed a crime worthy of the death penalty, he simply would not have faced it in some places even within Louisiana. Still, can the Louisiana death penalty really be unconstitutional because a jury in Caddo Parish deemed this crime to be worthy of capital punishment, but a jury in Bossier Parish might not have?
The Court’s work in these cases in embedded in the Order List from today, here.