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U.S. Supreme Court Rules that Arizona Man Unconstitutionally Sentenced to Death Is Not Entitled to Jury Resentencing

A divided U.S. Supreme Court has ruled that James McKinney (pictured), an Arizona death-row prisoner who was unconstitutionally sentenced to death by a trial judge who did not consider mitigating evidence relating to his severe Posttraumatic Stress Disorder from relentless childhood abuse, is not entitled to a jury trial to determine his sentence. On February 25, 2020, in a 5-4 opinion authored by Justice Brett Kavanaugh, the Court upheld the Arizona Supreme Court’s decision to reweigh the aggravating and mitigating evidence in the case itself and to reinstate McKinney’s death sentence.

McKinney was sentenced to death in 1993 for two murders committed during the course of separate burglaries. His trial judge found that McKinney had experienced a horrific childhood that was “beyond the comprehension of most people.” Nonetheless, the trial court ignored that evidence, bound by Arizona Supreme Court rulings that a defendant’s evidence was required to have a direct causal connection to the crime before it could be considered mitigating. Weighing the aggravating circumstances against the remaining mitigating evidence in the case, the court sentenced McKinney to death.

In June 2002, in Ring v. Arizona, the U.S. Supreme Court struck down Arizona’s death-sentencing procedures, saying they violated a capital defendant’s right to have a jury determine all facts necessary for a death sentence to be imposed. However, the Court declined to apply that ruling to cases like McKinney’s that had already completed their initial stage of appeal before Ring was decided. Subsequently, in December 2015, the U.S. Court of Appeals for the Ninth Circuit overturned McKinney's death sentence, applying long-standing Supreme Court caselaw that the “causal nexus” requirement was unconstitutional. When his case was returned to the state courts, McKinney argued that the right to a jury trial announced in Ring should apply to his resentencing. Instead, the Arizona Supreme Court reweighed the aggravating and mitigating evidence itself and reinstated McKinney’s death sentence.

The Supreme Court’s five conservative justices agreed with Arizona’s approach. In his opinion for the Court, Justice Kavanaugh wrote that the Court’s decisions on jury sentencing in Ring and, more recently, in Hurst v. Florida, had not affected prior Supreme Court precedent that permitted state appellate courts to cure constitutional errors in a case by reweighing aggravating and mitigating circumstances. Kavanaugh further stated that “a jury (as opposed to a judge) is not constitutionally required to weigh the aggravating and mitigating circumstances.”

The majority also ruled that the state court’s independent reweighing of the aggravating and mitigating evidence did not reinitiate the direct review process, was not a “resentencing,” and therefore did not entitle McKinney to the jury-trial safeguards announced in Ring.

Justice Ginsburg, joined by the other moderate and liberal justices, dissented. Ginsburg noted that the Arizona Supreme Court’s reweighing of McKinney’s aggravating and mitigating evidence mirrored that court’s practice during its consideration of his initial appeal. “[T]he Arizona Supreme Court,” she wrote, “was not conducting garden-variety harmless-error review of a lower court decision; it was rerunning direct review to correct its own prior harmful error.” As a result, she and the other dissenting justices would have found McKinney entitled to a jury resentencing.

Tennessee Sets Execution Dates for Two Men With Issues of Innocence, Intellectual Disability, and Competency

Tennessee has set two more execution dates for 2020, directed, advocates say, at men whose cases present unresolved issues of innocence, intellectual disability, and mental competency.

On February 24, 2020, the Tennessee Supreme Court granted state prosecutors’ applications for execution dates for Byron Black (pictured, left) and Pervis Payne (pictured, right). The court scheduled Black’s execution for October 8 and Payne’s for December 3, making them the fourth and fifth executions scheduled in Tennessee for 2020.

Coming less than a week after the execution of Nicholas Sutton—whose clemency plea had been supported by seven corrections officials, five jurors, and members of the victims’ families—the warrants draw continuing attention to death-penalty practices legal experts have characterized as extremist and out of step with national trends. If Tennessee carries out all four pending death warrants, 2020 will be the first year since 1948 in which the state executed as many as five prisoners in a single year.

Attorneys for Black and Payne said both men, who have been on death row since the 1980s, are intellectually disabled. Black has an IQ of 67 and Payne has an IQ of 72. Under the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia, it is unconstitutional to execute people with intellectual disability. Black is 63 years old, frail, and also has brain damage and schizophrenia. Payne is seeking DNA testing of previously undisclosed physical evidence that, his lawyers say, “completely contradicts the prosecution’s case” and they believe will prove his innocence. Both prisoners are parties to a lethal-injection challenge pending in federal court.