Judicial Override, the Sixth Amendment, and Retroactivity

Sentencing a murderer to death generally requires three decisions in the United States today: (1) a factual finding that the defendant is guilty of the highest degree of murder; (2) a further factual finding that an additional aggravating factor is true;* and (3) a discretionary decision that death is the appropriate punishment for this murder and this murderer, considering both aggravating and mitigating factors.

The first decision must be made by a jury under the Sixth Amendment, unless the defendant waives that right. In Ring v. Arizona, the Supreme Court held that the second decision must also be made by a jury, though it previously held the opposite multiple times. The third decision may be vested in a judge (or panel of judges) or a jury by state law. Only Nebraska currently does so.

If a state can vest the decision in the judge entirely, can it also have a jury make a recommendation but still leave the final decision with the judge no matter what the jury recommends? Of course. If a state has such a system but decides to change it and make the jury’s life-sentence recommendation binding, does the U.S. Constitution require that it make that change retroactive, overturning final judgments entered under the old system? Of course not.

Yet that question is before the Supreme Court today in the case of hired hit man Kenneth Eugene Smith.

Smith and an accomplice murdered Elizabeth Dorlene Sennett in 1988, having been hired to do so by her husband. See the direct appeal opinion. Although the jury voted 11-1 for a life sentence, the judge sentenced Smith to death.

Is that an injustice that requires overturning a judgment that was “final” long ago? Not in my book. The Alabama Legislature could have made its abolition of judicial override retroactive, but it chose not to. No doubt the opponents of judicial override would have liked a retroactive bill, but a non-retroactive one is what they got through the legislature. Compromises of that type are normal in legislative negotiations. That is how representative democracy works in practice.

And there is no need to shed any tears for Smith. This is not an injustice. He deserves the penalty. A long-ago jury voted to let him off with less than he deserves as an act of mercy, but that is not sufficient reason to overturn either the judgment in this case or the legislature’s decision to make its bill non-retroactive.

* The first two steps may be combined by defining a higher degree of murder with the additional aggravating factor as an element of that offense. Texas does so.


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