The Supreme Court, since reinstating the death penalty in 1976, has made it clear that defects in a key factor in many death sentencing cases can be cured by corrective decisions in appeals courts. But that rule may no longer be true – or at least, perhaps not true in many cases. Probably without intending explicitly to do so, the Court has sent an implied invitation to defense lawyers to raise the issue anew in future appeals. It did so in a significant footnote in its unsigned ruling on January 24 in the case of
Bell v. Cone, a Tennessee capital case (docket 04-394).
In many states that retain the death penalty, one of the “aggravating factors†that can lead to capital punishment in a murder case is a finding that the crime was committed in “an especially heinous, atrocious, or cruel†way (or some variation on those specific words). For decades, defense lawyers have been attacking that factor – standing alone -- as unconstitutionally vague, and the Supreme Court has agreed. But beginning with its ruling in
Proffitt v. Florida, decided on July 2, 1976 (the same day that the Court reinstated the death penalty nationwide in
Gregg v. Georgia), the Court has allowed state and federal appeals courts to interpret such phrases in a narrowing way, to remove the vagueness and thus the threat of an arbitrarily-imposed death sentence. The problem, it now appears, is that such after-the-trial narrowing by a reviewing court may run afoul of the Supreme Court’s firm insistence these days that juries, not judges, make the critical calls on sentence-enhancing factors – the so-called
Apprendi line of cases.
