CLE SEMINAR
2015-16 Supreme Court Review
Presented by:
Federal Public Defender's Of f ice
Speaker:
AFPD T. J. Hester
Eugene, Oregon
June 29, 2016
12:00pm to 1:00pm
Portland, Oregon
June 30, 2016
12:00pm to 1:00pm
Medford, Oregon
Video will be available
The 2015-2016 Supreme Court Term
A Summary and Discussion of Major Decisions and
Cert Grants Affecting Federal Criminal Law and
Habeas Corpus
Presented by AFPD T.J. Hester1
June 29-30, 2016
Thanks and acknowledgement to AFPD appellate guru Paul Rashkind, in Miami,
from whose materials I have borrowed shamelessly.
1
INDEX OF CASES
Supreme Court Opinions
Page
Betterman v. Montana, 136 S. Ct. ___ (May 19, 2016)
Brumfield v. Cain, 135 S. Ct. ___ (June 18, 2015)
City of Los Angeles, California v. Patel, 135 S. Ct. ___ (June 22, 2015)
Davis v. Ayala, 135 S. Ct. ___ (June 18, 2015)
Dietz v. Bouldin, 136 S. Ct. ___ (cert. granted Jan. 19, 2016)
Foster v. Chatman, 136 S. Ct. ___ (May 23, 2016)
Glossip v. Gross, 135 S. Ct. ___ (June 29, 2015)
Henderson v. United States, 135 S. Ct. ___ (May 18, 2015)
Hurst v. Florida, 136 S. Ct. ___ (Jan. 12, 2016)
Kansas v. Carr, 136 S. Ct. ___ (Jan. 20, 2016)
Lockhart v. United States, 136 S. Ct. ___ (Mar. 1, 2016)
Luis v. United States, 135 S. Ct. ___ (Mar. 30, 2016)
Luna Torres v. Lynch, 135 S. Ct. ___ (May 19, 2016)
Lynch v. Arizona, 578 U.S. ___ (May 31, 2016)
Maryland v. Kulbicki, 577 U.S. ___ (2015)
2015-16 Supreme Court Review or Eight is Enough
i
Mellouli v. Lynch, 135 S. Ct. ___ (June 1, 2015)
Molina-Martinez v. United States, 136 S.Ct. ___ (April 20, 2016)
Montgomery v. Louisiana, 136 S. Ct. ___ (Jan. 25, 2016)
Musacchio v. United States, 136 S. Ct. ___ (Jan. 25, 2016)
Nichols v. United States, 136 S. Ct. ___ (Apr. 4, 2016)
Ocasio v. United States, 136 S. Ct. ___ (May 2, 2016)
Wearry v. Cain, 136 S. Ct. ___ (Mar. 7, 2016)
Welch v. United States, 136 S. Ct. ___ (Apr. 18, 2016)
White v. Wheeler, 136 S. Ct. ___ (Dec. 14, 2015)
Woods v. Etherton, 136 S. Ct. ___ (Apr. 4, 2016)
Cert Granted
Bernard v. MInnesota, 136 S. Ct. ___ (cert. granted Dec. 11, 2015)
Beylund v. Levi, 136 S. Ct. ___ (cert. granted Dec. 11, 2015)
Birchfield v. North Dakota, 136 S. Ct. ___ (cert. granted Dec. 11, 2015)
Bravo-Fernandez v. United States, 1360 S. Ct. ___ (cert. granted Mar. 28, 2016)
Buck v. Dretke, H-04-3965, (So. D. Tex., 2006)
Buck v. Stephens, 136 S. Ct. ___ (cert. granted June 6, 2016)
2015-16 Supreme Court Review or Eight is Enough
ii
Carlton v. United States, 135 S. Ct. ___ (cert. denied June 22, 2015)
Duncan v. Owens, 136 S. Ct. ___ (cert. granted Oct. 1, 2015)
Manrique v. United States, 136 S. Ct. ___ (cert. granted Apr. 22, 2016)
Mathis v. United States, 136 S. Ct. ___ (cert. granted Jan. 19, 2016)
McDonnell v. United States, 136 S. Ct. ___ (cert. granted Jan. 15, 2016)
Moore v. Texas, 136 S. Ct. ___ (cert. granted June 6, 2016)
Pena-Rodriguez v. Colorado, 136 S. Ct. ___ (cert. granted Apr. 4, 2016)
Salman v. United States, 136 S. Ct. ___ (cert. granted Jan. 19, 2016)
Shaw v. United States, 136 S. Ct. ___ (Apr. 22, 2016)
Taylor v. United States, 136 S. Ct. ___ (cert. granted Oct. 1, 2015)
Voisine v. United States, 136 S. Ct. ___ (cert. granted Oct. 30, 2015)
Miscellaneous
United States v. Davis, 2016 WL 3245043 (9th Cir. 2016)
2015-16 Supreme Court Review or Eight is Enough
iii
(Slip Opinion)
OCTOBER TERM, 2015
1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BETTERMAN v. MONTANA
CERTIORARI TO THE SUPREME COURT OF MONTANA
No. 14–1457. Argued March 28, 2016—Decided May 19, 2016
Petitioner Brandon Betterman pleaded guilty to bail jumping after failing to appear in court on domestic assault charges. He was then
jailed for over 14 months awaiting sentence, in large part due to institutional delay. He was eventually sentenced to seven years’ imprisonment, with four of the years suspended. Arguing that the 14month gap between conviction and sentencing violated his speedy
trial right, Betterman appealed, but the Montana Supreme Court affirmed the conviction and sentence, ruling that the Sixth Amendment’s Speedy Trial Clause does not apply to postconviction, presentencing delay.
Held: The Sixth Amendment’s speedy trial guarantee does not apply
once a defendant has been found guilty at trial or has pleaded guilty
to criminal charges. Pp. 3–11.
(a) Criminal proceedings generally unfold in three discrete phases.
First, the State investigates to determine whether to arrest and
charge a suspect. Once charged, the suspect is presumed innocent
until conviction upon trial or guilty plea. After conviction, the court
imposes sentence. There are checks against delay geared to each
particular phase. P. 3.
(b) Statutes of limitations provide the primary protection against
delay in the first stage, when the suspect remains at liberty, with the
Due Process Clause safeguarding against fundamentally unfair prosecutorial conduct. United States v. Lovasco, 431 U. S. 783, 789. P. 3.
(c) The Speedy Trial Clause right attaches when the second phase
begins, that is, upon a defendant’s arrest or formal accusation. United States v. Marion, 404 U. S. 307, 320–321. The right detaches upon
conviction, when this second stage ends. Before conviction, the accused is shielded by the presumption of innocence, Reed v. Ross, 468
U. S. 1, 4, which the Speedy Trial Clause implements by minimizing
2
BETTERMAN v. MONTANA
Syllabus
the likelihood of lengthy incarceration before trial, lessening the anxiety and concern associated with a public accusation, and limiting the
effects of long delay on the accused’s ability to mount a defense, Marion, 404 U. S., at 320. The Speedy Trial Clause thus loses force upon
conviction.
This reading comports with the historical understanding of the
speedy trial right. It “has its roots at the very foundation of our English law heritage,” Klopfer v. North Carolina, 386 U. S. 213, 223, and
it was the contemporaneous understanding of the Sixth Amendment’s language that “accused” described a status preceding “convicted” and “trial” meant a discrete episode after which judgment (i.e.,
sentencing) would follow. The Court’s precedent aligns with the text
and history of the Speedy Trial Clause. See Barker v. Wingo, 407
U. S. 514, 532–533. Just as the right to speedy trial does not arise
prearrest, Marion, 404 U. S., at 320–322, adverse consequences of
postconviction delay are outside the purview of the Speedy Trial
Clause. The sole remedy for a violation of the speedy trial right—
dismissal of the charges—fits the preconviction focus of the Clause,
for it would be an unjustified windfall to remedy sentencing delay by
vacating validly obtained convictions. This reading also finds support in the federal Speedy Trial Act of 1974 and numerous state analogs, which impose time limits for charging and trial but say nothing
about sentencing. The prevalence of guilty pleas and the resulting
scarcity of trials in today’s justice system do not bear on the presumption-of-innocence protection at the heart of the Speedy Trial
Clause. Moreover, a central feature of contemporary sentencing—the
preparation and review of a presentence investigation report—
requires some amount of wholly reasonable presentencing delay.
Pp. 3–9.
(d) Although
the
Constitution’s
presumption-of-innocenceprotective speedy trial right is not engaged in the sentencing phase,
statutes and rules offer defendants recourse. Federal Rule of Criminal Procedure 32(b)(1), for example, directs courts to “impose sentence without unnecessary delay.” Further, as at the prearrest stage,
due process serves as a backstop against exorbitant delay. Because
Betterman advanced no due process claim here, however, the Court
expresses no opinion on how he might fare under that more pliable
standard. Pp. 9–11.
378 Mont. 182, 342 P. 3d 971, affirmed.
GINSBURG, J., delivered the opinion for a unanimous Court. THOMAS,
J., filed a concurring opinion, in which ALITO, J., joined. SOTOMAYOR, J.,
filed a concurring opinion.
Cite as: 578 U. S. ____ (2016)
1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–1457
_________________
BRANDON THOMAS BETTERMAN, PETITIONER v.
MONTANA ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA
[May 19, 2016] JUSTICE GINSBURG delivered the opinion of the Court.
The Sixth Amendment to the U. S. Constitution provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury . . . .” Does the Sixth Amendment’s speedy trial
guarantee apply to the sentencing phase of a criminal
prosecution? That is the sole question this case presents.
We hold that the guarantee protects the accused from
arrest or indictment through trial, but does not apply once
a defendant has been found guilty at trial or has pleaded
guilty to criminal charges. For inordinate delay in sentencing, although the Speedy Trial Clause does not govern, a defendant may have other recourse, including, in
appropriate circumstances, tailored relief under the Due
Process Clauses of the Fifth and Fourteenth Amendments.
Petitioner Brandon Betterman, however, advanced in this
Court only a Sixth Amendment speedy trial claim. He did
not preserve a due process challenge. See Tr. of Oral Arg.
19. We, therefore, confine this opinion to his Sixth
Amendment challenge.
2
BETTERMAN v. MONTANA
Opinion of the Court I
Ordered to appear in court on domestic assault charges,
Brandon Betterman failed to show up and was therefore
charged with bail jumping. 378 Mont. 182, 184, 342 P. 3d
971, 973 (2015). After pleading guilty to the bail-jumping
charge, he was jailed for over 14 months awaiting sentence on that conviction. Id., at 184–185, 342 P. 3d, at
973–974. The holdup, in large part, was due to institutional delay: the presentence report took nearly five
months to complete; the trial court took several months to
deny two presentence motions (one seeking dismissal of
the charge on the ground of delay); and the court was slow
in setting a sentencing hearing. Id., at 185, 195, 342
P. 3d, at 973–974, 980. Betterman was eventually sentenced to seven years’ imprisonment, with four of those
years suspended. Id., at 185, 342 P. 3d, at 974.
Arguing that the 14-month gap between conviction and
sentencing violated his speedy trial right, Betterman
appealed. The Montana Supreme Court affirmed his
conviction and sentence, ruling that the Sixth Amendment’s Speedy Trial Clause does not apply to postconviction, presentencing delay. Id., at 188–192, 342 P. 3d, at
975–978.
We granted certiorari, 577 U. S. ___ (2015), to resolve a
split among courts over whether the Speedy Trial Clause
applies to such delay.1 Holding that the Clause does not
——————
1 Compare Burkett v. Cunningham, 826 F. 2d 1208, 1220 (CA3 1987);
Juarez-Casares v. United States, 496 F. 2d 190, 192 (CA5 1974);
Ex parte Apicella, 809 So. 2d 865, 869 (Ala. 2001); Gonzales v. State,
582 P. 2d 630, 632 (Alaska 1978); Jolly v. State, 358 Ark. 180, 191, 189
S. W. 3d 40, 45 (2004); Trotter v. State, 554 So. 2d 313, 316 (Miss.
1989), superseded by statute on other grounds, Miss. Code Ann. §99–
35–101 (2008); Commonwealth v. Glass, 526 Pa. 329, 334, 586 A. 2d
369, 371 (1991); State v. Leyva, 906 P. 2d 910, 912 (Utah 1995); and
State v. Dean, 148 Vt. 510, 513, 536 A. 2d 909, 912 (1987) (Speedy Trial
Clause applies to sentencing delay), with United States v. Ray, 578
Cite as: 578 U. S. ____ (2016)
3
Opinion of the Court
apply to delayed sentencing, we affirm the Montana Supreme Court’s judgment.
II
Criminal proceedings generally unfold in three discrete
phases. First, the State investigates to determine whether
to arrest and charge a suspect. Once charged, the suspect
stands accused but is presumed innocent until conviction
upon trial or guilty plea. After conviction, the court imposes sentence. There are checks against delay throughout this progression, each geared to its particular phase.
In the first stage—before arrest or indictment, when the
suspect remains at liberty—statutes of limitations provide
the primary protection against delay, with the Due Process Clause as a safeguard against fundamentally unfair
prosecutorial conduct. United States v. Lovasco, 431 U. S.
783, 789 (1977); see id., at 795, n. 17 (Due Process
Clause may be violated, for instance, by prosecutorial delay
that is “tactical” or “reckless” (internal quotation marks
omitted)).
The Sixth Amendment’s Speedy Trial Clause homes in
on the second period: from arrest or indictment through
conviction. The constitutional right, our precedent holds,
does not attach until this phase begins, that is, when a
defendant is arrested or formally accused. United States
v. Marion, 404 U. S. 307, 320–321 (1971). Today we hold
that the right detaches upon conviction, when this second
stage ends.2
——————
F. 3d 184, 198–199 (CA2 2009); State v. Drake, 259 N. W. 2d 862, 866
(Iowa 1977), abrogated on other grounds by State v. Kaster, 469 N. W.
2d 671, 673 (Iowa 1991); State v. Pressley, 290 Kan. 24, 29, 223 P. 3d
299, 302 (2010); State v. Johnson, 363 So. 2d 458, 460 (La. 1978); 378
Mont. 182, 192, 342 P. 3d 971, 978 (2015) (case below); and Ball v.
Whyte, 170 W. Va. 417, 418, 294 S. E. 2d 270, 271 (1982) (Speedy Trial
Clause does not apply to sentencing delay).
2 We reserve the question whether the Speedy Trial Clause applies to
bifurcated proceedings in which, at the sentencing stage, facts that
4
BETTERMAN v. MONTANA
Opinion of the Court
Prior to conviction, the accused is shielded by the presumption of innocence, the “bedrock[,] axiomatic and
elementary principle whose enforcement lies at the foundation of the administration of our criminal law.” Reed v.
Ross, 468 U. S. 1, 4 (1984) (internal quotation marks
omitted). The Speedy Trial Clause implements that presumption by “prevent[ing] undue and oppressive incarceration prior to trial, . . . minimiz[ing] anxiety and concern
accompanying public accusation[,] and . . . limit[ing] the
possibilities that long delay will impair the ability of an
accused to defend himself.” Marion, 404 U. S., at 320
(internal quotation marks omitted). See also Barker v.
Wingo, 407 U. S. 514, 532–533 (1972). As a measure
protecting the presumptively innocent, the speedy trial
right—like other similarly aimed measures—loses force
upon conviction. Compare In re Winship, 397 U. S. 358,
364 (1970) (requiring “proof beyond a reasonable doubt of
every fact necessary to constitute the crime”), with United
States v. O’Brien, 560 U. S. 218, 224 (2010) (“Sentencing
factors . . . can be proved . . . by a preponderance of the
evidence.”). Compare also 18 U. S. C. §3142(b) (bail presumptively available for accused awaiting trial) with
§3143(a) (bail presumptively unavailable for those convicted awaiting sentence).
Our reading comports with the historical understanding. The speedy trial right, we have observed, “has its
roots at the very foundation of our English law heritage.
Its first articulation in modern jurisprudence appears to
have been made in Magna Carta (1215) . . . .” Klopfer v.
North Carolina, 386 U. S. 213, 223 (1967). Regarding the
Framers’ comprehension of the right as it existed at the
——————
could increase the prescribed sentencing range are determined (e.g.,
capital cases in which eligibility for the death penalty hinges on aggravating factor findings). Nor do we decide whether the right reattaches
upon renewed prosecution following a defendant’s successful appeal,
when he again enjoys the presumption of innocence.
Cite as: 578 U. S. ____ (2016)
5
Opinion of the Court
founding, we have cited Sir Edward Coke’s Institutes of
the Laws of England. See id., at 223–225, and nn. 8, 12–
14, 18. Coke wrote that “the innocent shall not be worn
and wasted by long imprisonment, but . . . speedily come
to his tria[l].” 1 E. Coke, Second Part of the Institutes of
the Laws of England 315 (1797) (emphasis added).
Reflecting the concern that a presumptively innocent
person should not languish under an unresolved charge,
the Speedy Trial Clause guarantees “the accused” “the
right to a speedy . . . trial.” U. S. Const., Amdt. 6 (emphasis added). At the founding, “accused” described a status
preceding “convicted.” See, e.g., 4 W. Blackstone, Commentaries on the Laws of England 322 (1769) (commenting on process in which “persons accused of felony . . . were
tried . . . and convicted” (emphasis added)). And “trial”
meant a discrete episode after which judgment (i.e., sentencing) would follow. See, e.g., id., at 368 (“We are now to
consider the next stage of criminal prosecution, after trial
and conviction are past . . . : which is that of judgment.”).3
This understanding of the Sixth Amendment language—“accused” as distinct from “convicted,” and “trial”
as separate from “sentencing”—endures today. See, e.g.,
Black’s Law Dictionary 26 (10th ed. 2014) (defining “accused” as “a person who has been arrested and brought
before a magistrate or who has been formally charged”
(emphasis added)); Fed. Rule Crim. Proc. 32 (governing
“Sentencing and Judgment,” the rule appears in the chap——————
3 As Betterman points out, at the founding, sentence was often imposed promptly after rendition of a verdict. Brief for Petitioner 24–26.
But that was not invariably the case. For the court’s “own convenience,
or on cause shown, [sentence could be] postpone[d] . . . to a future day
or term.” 1 J. Bishop, Criminal Procedure §1291, p. 767 (3d ed. 1880)
(footnote omitted). See also 1 J. Chitty, A Practical Treatise on the
Criminal Law 481 (1819) (“The sentence . . . is usually given immediately after the conviction, but the court may adjourn to another day and
then give judgment.”).
6
BETTERMAN v. MONTANA
Opinion of the Court
ter on “Post-Conviction Procedures,” which follows immediately after the separate chapter headed “Trial”).4
This Court’s precedent aligns with the text and history
of the Speedy Trial Clause. Detaining the accused pretrial,
we have said, disadvantages him, and the imposition is
“especially unfortunate” as to those “ultimately found to be
innocent.” Barker, 407 U. S., at 532–533. And in Marion,
404 U. S., at 320, addressing “the major evils protected
against by the speedy trial guarantee,” we observed: “Arrest is a public act that may seriously interfere with the
defendant’s liberty, whether he is free on bail or not, and
that may disrupt his employment, drain his financial
resources, curtail his associations, subject him to public
obloquy, and create anxiety in him, his family and his
friends.” We acknowledged in Marion that even prearrest—a stage at which the right to a speedy trial does
not arise—the passage of time “may impair memories,
cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend
himself.” Id., at 321. Nevertheless, we determined, “this
possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper [arrest or charge triggered] context.” Id., at 321–322. Adverse consequences of postconviction delay, though subject
to other checks, see infra, at 10–11, are similarly outside
the purview of the Speedy Trial Clause.5
——————
4 We
do not mean to convey that provisions of the Sixth Amendment
protecting interests other than the presumption of innocence are
inapplicable to sentencing. In this regard, we have held that the right
to defense counsel extends to some postconviction proceedings. See
Mempa v. Rhay, 389 U. S. 128, 135–137 (1967).
5 Smith v. Hooey, 393 U. S. 374 (1969), on which Betterman relies, is
not to the contrary. There we concluded that a defendant, though
already convicted and imprisoned on one charge, nevertheless has a
right to be speedily brought to trial on an unrelated charge. Id., at 378.
“[T]here is reason to believe,” we explained in Smith, “that an outstanding untried charge (of which even a convict may, of course, be innocent)
Cite as: 578 U. S. ____ (2016)
7
Opinion of the Court
The sole remedy for a violation of the speedy trial
right—dismissal of the charges, see Strunk v. United
States, 412 U. S. 434, 440 (1973); Barker, 407 U. S., at
522—fits the preconviction focus of the Clause. It would
be an unjustified windfall, in most cases, to remedy sentencing delay by vacating validly obtained convictions.
Betterman concedes that a dismissal remedy ordinarily
would not be in order once a defendant has been convicted.
See Tr. of Oral Arg. 5–6; cf. Bozza v. United States, 330
U. S. 160, 166 (1947) (“[A]n error in passing the sentence”
does not permit a convicted defendant “to escape punishment altogether.”).6
The manner in which legislatures have implemented the
speedy trial guarantee matches our reading of the Clause.
Congress passed the Speedy Trial Act of 1974, 18 U. S. C.
§3161 et seq., “to give effect to the sixth amendment right.”
United States v. MacDonald, 456 U. S. 1, 7, n. 7 (1982)
(quoting S. Rep. No. 93–1021, p. 1 (1974)). “The more
stringent provisions of the Speedy Trial Act have mooted
much litigation about the requirements of the Speedy
Trial Clause . . . .” United States v. Loud Hawk, 474 U. S.
302, 304, n. 1 (1986) (citation omitted). With certain
exceptions, the Act directs—on pain of dismissal of the
charges, §3162(a)—that no more than 30 days pass between arrest and indictment, §3161(b), and that no more
than 70 days pass between indictment and trial,
§3161(c)(1). The Act says nothing, however, about the
——————
can have fully as depressive an effect upon a prisoner as upon a person
who is at large.” Id., at 379. Smith is thus consistent with comprehension of the Speedy Trial Clause as protective of the presumptively
innocent.
6 Betterman suggests that an appropriate remedy for the delay in his
case would be reduction of his sentence by 14 months—the time between his conviction and sentencing. See Tr. of Oral Arg. 6. We have
not read the Speedy Trial Clause, however, to call for a flexible or
tailored remedy. Instead, we have held that violation of the right
demands termination of the prosecution.
8
BETTERMAN v. MONTANA
Opinion of the Court
period between conviction and sentencing, suggesting that
Congress did not regard that period as falling within the
Sixth Amendment’s compass. Numerous state analogs
similarly impose precise time limits for charging and trial;
they, too, say nothing about sentencing.7
Betterman asks us to take account of the prevalence of
guilty pleas and the resulting scarcity of trials in today’s
justice system. See Lafler v. Cooper, 566 U. S. ___, ___
(2012) (slip op., at 11) (“[C]riminal justice today is for the
most part a system of pleas, not a system of trials.”). The
sentencing hearing has largely replaced the trial as the
forum for dispute resolution, Betterman urges. Therefore,
he maintains, the concerns supporting the right to a
speedy trial now recommend a speedy sentencing hearing. The modern reality, however, does not bear on the
presumption-of-innocence protection at the heart of the
Speedy Trial Clause. And factual disputes, if any there
be, at sentencing, do not go to the question of guilt;
they are geared, instead, to ascertaining the proper sentence within boundaries set by statutory minimums and
maximums.
Moreover, a central feature of contemporary sentencing
——————
7 See,
e.g., Alaska Rule Crim. Proc. 45 (2016); Ark. Rules Crim. Proc.
28.1 to 28.3 (2015); Cal. Penal Code Ann. §1382 (West 2011); Colo. Rev.
Stat. §18–1–405 (2015); Conn. Rules Crim. Proc. 43–39 to 43–42 (2016);
Fla. Rule Crim. Proc. 3.191 (2016); Haw. Rule Crim. Proc. 48 (2016); Ill.
Comp. Stat., ch. 725, §5/103–5 (West 2014); Ind. Rule Crim. Proc. 4
(2016); Iowa Rule Crim. Proc. 2.33 (2016); Kan. Stat. Ann. §22–3402
(2014 Cum. Supp.); La. Code Crim. Proc. Ann., Art. 701 (West Cum.
Supp. 2016); Mass. Rule Crim. Proc. 36 (2016); Neb. Rev. Stat. §§29–
1207, 29–1208 (2008); Nev. Rev. Stat. §178.556 (2013); N. Y. Crim.
Proc. Law Ann. §30.30 (West Cum. Supp. 2016); Ohio Rev. Code Ann.
§§2945.71 to 2945.73 (Lexis 2014); Ore. Rev. Stat. §§135.745, 135.746,
135.748, 135.750, 135.752 (2015); Pa. Rule Crim. Proc. 600 (2016); S. D.
Codified Laws §23A–44–5.1 (Cum. Supp. 2015); Va. Code Ann. §19.2–
243 (2015); Wash. Rule Crim. Proc. 3.3 (2016); Wis. Stat. §971.10
(2011–2012); Wyo. Rule Crim. Proc. 48 (2015).
Cite as: 578 U. S. ____ (2016)
9
Opinion of the Court
in both federal and state courts is preparation by the
probation office, and review by the parties and the court,
of a presentence investigation report. See 18 U. S. C.
§3552; Fed. Rule Crim. Proc. 32(c)–(g); 6 W. LaFave, J.
Israel, N. King, & O. Kerr, Criminal Procedure §26.5(b),
pp. 1048–1049 (4th ed. 2015) (noting reliance on presentence reports in federal and state courts). This aspect of
the system requires some amount of wholly reasonable
Indeed, many—if not most—
presentencing delay.8
disputes are resolved, not at the hearing itself, but rather
through the presentence-report process. See N. Demleitner, D. Berman, M. Miller, & R. Wright, Sentencing Law
and Policy 443 (3d ed. 2013) (“Criminal justice is far more
commonly negotiated than adjudicated; defendants and
their attorneys often need to be more concerned about the
charging and plea bargaining practices of prosecutors and
the presentence investigations of probation offices than . . .
about the sentencing procedures of judges or juries.”); cf.
Bierschbach & Bibas, Notice-and-Comment Sentencing, 97
Minn. L. Rev. 1, 15 (2012) (“[T]oday’s sentencing hearings
. . . rubber-stamp plea-bargained sentences.”).
As we have explained, at the third phase of the
criminal-justice process, i.e., between conviction and sentencing, the Constitution’s presumption-of-innocenceprotective speedy trial right is not engaged.9 That does
——————
8 “In federal prosecutions,” the Solicitor General informs us, “the
median time between conviction and sentencing in 2014 was 99 days.”
Brief for United States as Amicus Curiae 31, n. 5. A good part of this
time no doubt was taken up by the drafting and review of a presentence
report. See Fed. Rule Crim. Proc. 32(c)–(g) (detailing presentencereport process).
9 It is true that during this period the defendant is often incarcerated.
See, e.g., §3143(a) (bail presumptively unavailable for convicted awaiting sentence). Because postconviction incarceration is considered
punishment for the offense, however, a defendant will ordinarily earn
time-served credit for any period of presentencing detention. See
§3585(b); A. Campbell, Law of Sentencing §9:28, pp. 444–445, and n. 4
10
BETTERMAN v. MONTANA
Opinion of the Court
not mean, however, that defendants lack any protection
against undue delay at this stage. The primary safeguard
comes from statutes and rules. The federal rule on point
directs the court to “impose sentence without unnecessary
delay.” Fed. Rule Crim. Proc. 32(b)(1). Many States have
provisions to the same effect,10 and some States prescribe
numerical time limits.11 Further, as at the prearrest
stage, due process serves as a backstop against exorbitant
delay. See supra, at 3. After conviction, a defendant’s due
process right to liberty, while diminished, is still present.
——————
(3d ed. 2004) (“[State c]rediting statutes routinely provide that any
period of time during which a person was incarcerated in relation to a
given offense be counted toward satisfaction of any resulting sentence.”). That such detention may occur in a local jail rather than a
prison is of no constitutional moment, for a convicted defendant has no
right to serve his sentence in the penal institution he prefers. See
Meachum v. Fano, 427 U. S. 215, 224–225 (1976).
10 See, e.g., Alaska Rule Crim. Proc. 32(a) (2016); Colo. Rule Crim.
Proc. 32(b)(1) (2015); Del. Super. Ct. Crim. Rule 32(a)(1) (2003); Fla.
Rule Crim. Proc. 3.720 (2016); Haw. Rule Penal Proc. 32(a) (2016); Kan.
Stat. Ann. §22–3424(c) (2014 Cum. Supp.); Ky. Rule Crim. Proc.
11.02(1) (2016); La. Code Crim. Proc. Ann., Art. 874 (West 2016); Me.
Rule Crim. Proc. 32(a)(1) (2015); Mass. Rule Crim. Proc. 28(b) (2016);
Mich. Ct. Rule 6.425(E)(1) (2011); Mo. Sup. Ct. Rule 29.07(b)(1) (2011);
Mont. Code Ann. §46–18–115 (2015); Nev. Rev. Stat. §176.015(1)
(2013); N. H. Rule Crim. Proc. 29(a)(1) (2016); N. J. Ct. Rule 3:21–4(a)
(2016); N. Y. Crim. Proc. Law Ann. §380.30(1) (West Cum. Supp. 2016);
N. D. Rule Crim. Proc. 32(a)(1) (2011); Ohio Rule Crim. Proc. 32(A)
(2013); R. I. Super. Ct. Rule 32(a)(1) (2015); S. D. Codified Laws §23A–
27–1 (Cum. Supp. 2015); Vt. Rule Crim. Proc. 32(a)(1) (2010); Va. Sup.
Ct. Rule 3A:17.1(b) (2012); W. Va. Rule Crim. Proc. 32(a) (2006); Wyo.
Rule Crim. Proc. 32(c)(1) (2015).
11 See, e.g., Ariz. Rule Crim. Proc. 26.3(a)(1) (2011); Ark. Rule Crim.
Proc. 33.2 (2015); Cal. Penal Code Ann. §1191 (West 2015); Ind. Rule
Crim. Proc. 11 (2016); N. M. Rule Crim. Proc. 5–701(B) (2016); Ore.
Rev. Stat. §137.020(3) (2015); Pa. Rule Crim. Proc. 704(A)(1) (2016);
Tenn. Code Ann. §40–35–209(a) (2014); Utah Rule Crim. Proc. 22(a)
(2015); Wash. Rev. Code §9.94A.500(1) (2016 Cum. Supp.). These
sentencing provisions are separate from state analogues to the Speedy
Trial Act. See supra, at 8, and n. 7.
Cite as: 578 U. S. ____ (2016)
11
Opinion of the Court
He retains an interest in a sentencing proceeding that is
fundamentally fair. But because Betterman advanced no
due process claim here, see supra, at 1, we express no
opinion on how he might fare under that more pliable
standard. See, e.g., United States v. $8,850, 461 U. S. 555,
562–565 (1983).12
*
*
*
The course of a criminal prosecution is composed of
discrete segments. During the segment between accusation and conviction, the Sixth Amendment’s Speedy Trial
Clause protects the presumptively innocent from long
enduring unresolved criminal charges.
The Sixth
Amendment speedy trial right, however, does not extend
beyond conviction, which terminates the presumption of
innocence. The judgment of the Supreme Court of Montana is therefore
Affirmed.
——————
12 Relevant considerations may include the length of and reasons for
delay, the defendant’s diligence in requesting expeditious sentencing,
and prejudice.
Cite as: 578 U. S. ____ (2016)
1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–1457
_________________
BRANDON THOMAS BETTERMAN, PETITIONER v.
MONTANA ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA
[May 19, 2016] JUSTICE THOMAS, with whom JUSTICE ALITO joins,
concurring.
I agree with the Court that the Sixth Amendment’s
Speedy Trial Clause does not apply to sentencing proceedings, except perhaps to bifurcated sentencing proceedings
where sentencing enhancements operate as functional
elements of a greater offense. See ante, at 2–3, and n. 2. I
also agree with the Court’s decision to reserve judgment
on whether sentencing delays might violate the Due Process Clause. Ante, at 11. Brandon Betterman’s counsel
repeatedly disclaimed that he was raising in this Court a
challenge under the Due Process Clause. See Tr. of Oral
Arg. 7–8 (“We haven’t included that. We didn’t include
that in the question presented, Your Honor”); id., at 8
(“[W]e are not advancing that claim here”); id., at 19
(“[W]e didn’t preserve a—a due process challenge. Our
challenge is solely under the Sixth Amendment”).
We have never decided whether the Due Process Clause
creates an entitlement to a reasonably prompt sentencing
hearing. Today’s opinion leaves us free to decide the
proper analytical framework to analyze such claims if and
when the issue is properly before us.
JUSTICE SOTOMAYOR suggests that, for such claims, we
should adopt the factors announced in Barker v. Wingo,
407 U. S. 514, 530–533 (1972). Post, at 2 (concurring
2
BETTERMAN v. MONTANA
THOMAS, J., concurring
opinion). I would not prejudge that matter. The factors
listed in Barker may not necessarily translate to the delayed sentencing context. The Due Process Clause can be
satisfied where a State has adequate procedures to redress
an improper deprivation of liberty or property. See Parratt v. Taylor, 451 U. S. 527, 537 (1981). In unusual cases
where trial courts fail to sentence a defendant within a
reasonable time, a State might fully satisfy due process by
making traditional extraordinary legal remedies, such as
mandamus, available. Or, much like the federal Speedy
Trial Act regulates trials, see 18 U. S. C. §3161, a State
might remedy improper sentencing delay by statute.* And
a person who sleeps on these remedies, as Betterman did,
may simply have no right to complain that his sentencing
was delayed. We should await a proper presentation, full
briefing, and argument before taking a position on this
issue.
The Court thus correctly “express[es] no opinion on how
[Betterman] might fare” under the Due Process Clause.
Ante, at 11.
——————
* Montana law, for example, secures the right to a prompt sentencing
hearing. See Mont. Code Ann. §46–18–101(3)(a) (2015) (“Sentencing
and punishment must be certain, timely, consistent, and understandable”); §46–18–102(3)(a) (“[I]f the verdict or finding is guilty, sentence
must be pronounced and judgment rendered within a reasonable time”);
§46–18–115 (“[T]he court shall conduct a sentencing hearing, without
unreasonable delay”).
Cite as: 578 U. S. ____ (2016)
1
SOTOMAYOR, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–1457
_________________
BRANDON THOMAS BETTERMAN, PETITIONER v.
MONTANA ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA
[May 19, 2016] JUSTICE SOTOMAYOR, concurring.
I agree with the Court that petitioner cannot bring a
claim under the Speedy Trial Clause for a delay between
his guilty plea and his sentencing. As the majority notes,
however, a defendant may have “other recourse” for such a
delay, “including, in appropriate circumstances, tailored
relief under the Due Process Clauses of the Fifth and
Fourteenth Amendments.” Ante, at 1. The Court has no
reason to consider today the appropriate test for such a
Due Process Clause challenge because petitioner has
forfeited any such claim. See Tr. of Oral Arg. 19. I write
separately to emphasize that the question is an open one.
The Due Process Clause is “flexible and calls for such
procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U. S. 471, 481 (1972).
This Court thus uses different tests to consider whether
different kinds of delay run afoul of the Due Process
Clause. In evaluating whether a delay in instituting
judicial proceedings following a civil forfeiture violated the
Due Process Clause, the Court applied the test from Barker
v. Wingo, 407 U. S. 514 (1972)—the same test that the
Court applies to violations of the Speedy Trial Clause. See
United States v. $8,850, 461 U. S. 555, 564 (1983). Under
the Barker test, courts consider four factors—the length of
the delay, the reason for the delay, the defendant’s asser-
2
BETTERMAN v. MONTANA
SOTOMAYOR, J., concurring
tion of his right, and prejudice to the defendant. Ibid.
None of the four factors is “either necessary or sufficient,”
and no one factor has a “talismanic qualit[y].” Barker, 407
U. S., at 533.
The Montana Supreme Court did not use the Barker test
in evaluating petitioner’s Due Process Clause claim. 378
Mont. 182, 193–194, 342 P. 3d 971, 979 (2015). But it
seems to me that the Barker factors capture many of the
concerns posed in the sentencing delay context and that
because the Barker test is flexible, it will allow courts to
take account of any differences between trial and sentencing delays. See 407 U. S., at 531. The majority of the
Circuits in fact use the Barker test for that purpose. See
United States v. Sanders, 452 F. 3d 572, 577 (CA6 2006)
(collecting cases).
In the appropriate case, I would thus consider the correct test for a Due Process Clause delayed sentencing
challenge.
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
135 S.Ct. 2269
Supreme Court of the United States
Kevan BRUMFIELD, Petitioner
v.
Burl CAIN, Warden.
No. 13–1433.
|
Argued March 30, 2015.
|
Decided June 18, 2015.
Synopsis
Background: State prisoner petitioned for writ of habeas corpus after his conviction on charge of first-degree murder and
sentence of death was affirmed on direct appeal, 737 So.2d 660, and his state petition for postconviction relief was denied. The
United States District Court for the Middle District of Louisiana, James J. Brady, J., 854 F.Supp.2d 366, granted the petition
on ground that the Eighth Amendment barred the prisoner's execution because he was intellectually disabled. State appealed.
The United States Court of Appeals for the Fifth Circuit, Carl E. Stewart, Chief Judge, 744 F.3d 918, reversed, and certiorari
was granted.
Holdings: The Supreme Court, Justice Sotomayor, held that:
[1] state postconviction court's determination that prisoner's IQ score of 75 demonstrated that he could not possess subaverage
intelligence reflected an unreasonable determination of the facts, and
[2] state postconviction court's determination that record failed to raise any question as to prisoner's impairment in adaptive
skills, as defined by Louisiana law, was unreasonable.
Vacated and remanded.
Justice Thomas filed dissenting opinion in which Chief Justice Roberts, Justice Scalia, and Justice Alito joined in part.
Justice Alito filed dissenting opinion in which Chief Justice Roberts joined.
*2271 Syllabus *
Petitioner Kevan Brumfield was convicted of murder in a Louisiana court and sentenced to death before this Court held that
the Eighth Amendment prohibits execution of the intellectually disabled, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242,
153 L.Ed.2d 335. Implementing Atkins ' mandate, see id., at 317, 122 S.Ct. 2242 the Louisiana Supreme Court determined
that an evidentiary hearing is required when a defendant “provide[s] objective factors” sufficient to raise a “ ‘a reasonable
ground’ ” to believe that he has an intellectual disability, which the court defined as “(1) subaverage intelligence, as measured
by objective standardized IQ tests; (2) significant impairment in several areas of adaptive skills; and (3) manifestations of this
neuro-psychological disorder in the developmental stage.” State v. Williams, 2001–1650 (La.11/1/02), 831 So.2d 835, 857,
861, 854.
*2272 Soon after the Williams decision, Brumfield amended his pending state postconviction petition to raise an Atkins claim.
Seeking an evidentiary hearing, he pointed to evidence introduced at sentencing that he had an IQ of 75, had a fourth-grade
reading level, had been prescribed numerous medications and treated at psychiatric hospitals as a child, had been identified as
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
1
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
having a learning disability, and had been placed in special education classes. The trial court dismissed Brumfield's petition
without holding a hearing or granting funds to conduct additional investigation. Brumfield subsequently sought federal habeas
relief. The District Court found that the state court's rejection of Brumfield's claim was both “contrary to, or involved an
unreasonable application of clearly established Federal law, as determined by” this Court and “based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1), (2). The
court went on to determine that Brumfield was intellectually disabled. The Fifth Circuit found that Brumfield's petition failed
to satisfy either of § 2254(d)'s requirements and reversed.
Held : Because Brumfield satisfied § 2254(d)(2)'s requirements, he was entitled to have his Atkins claim considered on the
merits in federal court. Pp. 2276 – 2283.
(a) The two underlying factual determinations on which the state trial court's decision was premised—that Brumfield's IQ score
was inconsistent with a diagnosis of intellectual disability and that he presented no evidence of adaptive impairment—were
unreasonable under § 2254(d)(2). Because that standard is satisfied, the Court need not address § 2254(d)(1). Pp. 2276 – 2282.
(1) Expert trial testimony that Brumfield scored a 75 on an IQ test is entirely consistent with intellectual disability. Every IQ
score has a margin of error. Accounting for that margin of error, the sources on which the Williams court relied in defining
subaverage intelligence describe a score of 75 as consistent with an intellectual disability diagnosis. There was no evidence
presented to the trial court of any other IQ test that was sufficiently rigorous to preclude the possibility that Brumfield possessed
subaverage intelligence. Pp. 2277 – 2279.
(2) The state-court record contains sufficient evidence to suggest that Brumfield would meet the criteria for adaptive impairment.
Under the test most favorable to the State, an individual like Brumfield must show a “substantial functional limitation” in three
of six “areas of major life activity.” Williams, 831 So.2d, at 854. Brumfield—who was placed in special education classes at an
early age, was suspected of having a learning disability, and can barely read at a fourth-grade level—would seem to be deficient
in two of those areas: “[u]nderstanding and use of language” and “[l]earning.” Ibid. His low birth weight, his commitment to
mental health facilities at a young age, and officials' administration of antipsychotic and sedative drugs to him at that time all
indicate that he may well have had significant deficits in at least one of the remaining four areas. In light of that evidence, the fact
that the record contains some contrary evidence cannot be said to foreclose all reasonable doubt as to his intellectual disability.
And given that Brumfield's trial occurred before Atkins, the trial court should have taken into account that the evidence before
it was sought and introduced at a time when Brumfield's intellectual disability was not at issue. Pp. 2278 – 2282.
(b) The State's two additional arguments are rejected. Because the State did not press below the theory that *2273 § 2254(e)
(1) supplies the governing standard when evaluating whether a habeas petitioner has satisfied § 2254(d)(2)'s requirements, that
issue is not addressed here. And because the state trial court made no finding that Brumfield had failed to produce evidence
suggesting he could meet the “manifestations ... in the developmental stage” requirement for intellectual disability, there is no
determination on that point to which a federal court must defer in assessing whether Brumfield satisfied § 2254(d). In any event,
the state court record contained ample evidence creating a reasonable doubt as to whether Brumfield's disability manifested
before adulthood. Pp. 2282 – 2283.
744 F.3d 918, vacated and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined.
THOMAS, J., filed a dissenting opinion, in all but Part I–C of which ROBERTS, C.J., and SCALIA and ALITO, JJ., joined.
ALITO, J., filed a dissenting opinion, in which ROBERTS, C.J., joined.
Attorneys and Law Firms
Michael B. DeSanctis, Washington, DC, for Petitioner.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
2
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
Premila Burns, Baton Rouge, LA, for Respondent.
Nicholas J. Trenticosta, Susan Herrero, Attorneys at Law, New Orleans, LA, Michael B. DeSanctis, Counsel of Record, Amir
H. Ali, Adam G. Unikowsky, R. Trent McCotter, Leah J. Tulin, David A. Wishnick, Jan E. Messerschmidt, Jenner & Block
LLP, Washington, DC, for Petitioner.
Thomas R. McCarthy, William S. Consovoy, J. Michael Connolly, Consovoy McCarthy PLLC, Arlington, VA, Hillar C. Moore,
III, District Attorney, Premila Burns, Counsel of Record, Assistant District Attorney, Monisa L. Thompson, Assistant District
Attorney, Baton Rouge, LA, for Respondent.
Opinion
Justice SOTOMAYOR delivered the opinion of the Court.
In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), this Court recognized that the execution of the
intellectually disabled contravenes the Eighth Amendment's prohibition on cruel and unusual punishment. After Atkins was
decided, petitioner, a Louisiana death-row inmate, requested an opportunity to prove he was intellectually disabled in state
court. Without affording him an evidentiary hearing or granting him time or funding to secure expert evidence, the state court
rejected petitioner's claim. That decision, we hold, was “based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Petitioner was therefore entitled to have his Atkins
claim considered on the merits in federal court.
I
Petitioner Kevan Brumfield was sentenced to death for the 1993 murder of off-duty Baton Rouge police officer Betty Smothers.
Brumfield, accompanied by another individual, shot and killed Officer Smothers while she was escorting the manager of a
grocery store to the bank.
At the time of Brumfield's trial, this Court's precedent permitted the imposition of the death penalty on intellectually disabled
persons. See Penry v. Lynaugh, 492 U.S. 302, 340, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (opinion of O'Connor, *2274
J.). But in Atkins, this Court subsequently held that “in light of ... ‘evolving standards of decency,’ ” the Eighth Amendment
“ ‘places a substantive restriction on the State's power to take the life’ of a mentally retarded offender.” 536 U.S., at 321, 122
S.Ct. 2242 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)). 1 Acknowledging the
“disagreement” regarding how to “determin[e] which offenders are in fact” intellectually disabled, the Court left “to the State[s]
the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” 536 U.S.,
at 317, 122 S.Ct. 2242 (internal quotation marks omitted; some alterations in original).
The Louisiana Supreme Court took up the charge of implementing Atkins ' mandate in State v. Williams, 2001–1650
(La.11/1/02), 831 So.2d 835. The court held that “a diagnosis of mental retardation has three distinct components: (1) subaverage
intelligence, as measured by objective standardized IQ tests; (2) significant impairment in several areas of adaptive skills; and
(3) manifestations of this neuro-psychological disorder in the developmental stage.” Id., at 854 (relying on, inter alia, American
Association of Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Supports (10th ed. 2002)
(AAMR), and American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (rev. 4th ed. 2000)
(DSM–IV)); see also La.Code Crim. Proc. Ann., Art. 905.5.1(H)(1) (West Cum. Supp. 2015) (subsequently enacted statute
governing Atkins claims adopting the three Williams criteria). The Williams court also clarified that “not everyone faced with a
death penalty sentence” would “automatically be entitled to a post-Atkins hearing”; rather, it would “be an individual defendant's
burden to provide objective factors that will put at issue the fact of mental retardation.” 831 So.2d, at 857. Borrowing from
the state statutory standard for determining when a pretrial competency inquiry is necessary, the court held that an Atkins
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
3
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
evidentiary hearing is required when an inmate has put forward sufficient evidence to raise a “ ‘reasonable ground’ ” to believe
him to be intellectually disabled. See id., at 861; see also id., at 858, n. 33 (characterizing the requisite showing as one raising
a “ ‘reasonable doubt’ ”). 2
Shortly after the Williams decision, Brumfield amended his pending state postconviction petition to raise an Atkins claim. He
sought an evidentiary hearing on the issue, asserting that his case was “accompanied by a host of objective facts which raise
the issue of mental retardation.” App. 203a.
In support, Brumfield pointed to mitigation evidence introduced at the sentencing phase of his trial. He focused on the testimony
of three witnesses in particular: his mother; Dr. Cecile Guin, a social worker who had compiled a history of Brumfield by
consulting available records and conducting interviews with family members *2275 and teachers; and Dr. John Bolter, a
clinical neuropsychologist who had performed a number of cognitive tests on Brumfield. A psychologist, Dr. Brian Jordan,
had also examined Brumfield and prepared a report, but did not testify at trial. Brumfield contended that this evidence showed,
among other things, that he had registered an IQ score of 75, had a fourth-grade reading level, had been prescribed numerous
medications and treated at psychiatric hospitals as a child, had been identified as having some form of learning disability, and
had been placed in special education classes. See id., at 203a–204a. Brumfield further requested “all the resources necessary
to the proper presentation of his case,” asserting that until he was able to “retain the services of various experts,” it would be
“premature for [the court] to address [his] claims.” Id., at 207a.
Without holding an evidentiary hearing or granting funds to conduct additional investigation, the state trial court dismissed
Brumfield's petition. With respect to the request for an Atkins hearing, the court stated:
“I've looked at the application, the response, the record, portions of the transcript on that issue, and the evidence presented,
including Dr. Bolter's testimony, Dr. Guinn's [sic ] testimony, which refers to and discusses Dr. Jordan's report, and based
on those, since this issue—there was a lot of testimony by all of those in Dr. Jordan's report.
“Dr. Bolter in particular found he had an IQ of over—or 75. Dr. Jordan actually came up with a little bit higher IQ. I do
not think that the defendant has demonstrated impairment based on the record in adaptive skills. The doctor testified that he
did have an anti-social personality or sociopath, and explained it as someone with no conscience, and the defendant hadn't
carried his burden placing the claim of mental retardation at issue. Therefore, I find he is not entitled to that hearing based
on all of those things that I just set out.” App. to Pet. for Cert. 171a–172a.
After the Louisiana Supreme Court summarily denied his application for a supervisory writ to review the trial court's ruling,
Brumfield v. State, 2004–0081 (La.10/29/04), 885 So.2d 580, Brumfield filed a petition for habeas corpus in federal court, again
pressing his Atkins claim. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Brumfield could
secure relief only if the state court's rejection of his claim was either “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States,” or was “based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1), (2).
The District Court found that both of these requirements had been met. 854 F.Supp.2d 366, 383–384 (M.D.La.2012). First,
the District Court held that denying Brumfield an evidentiary hearing without first granting him funding to develop his Atkins
claim “represented an unreasonable application of then-existing due process law,” thus satisfying § 2254(d)(1). Id., at 379.
Second, and in the alternative, the District Court found that the state court's decision denying Brumfield a hearing “suffered
from an unreasonable determination of the facts in light of the evidence presented in the state habeas proceeding in violation
of § 2254(d)(2).” Ibid.
The District Court further determined Brumfield to be intellectually disabled based on the extensive evidence it received during
an evidentiary hearing. Id., at 406; *2276 see Cullen v. Pinholster, 563 U.S. 170, ––––, 131 S.Ct. 1388, 1401, 179 L.Ed.2d
557 (2011) (recognizing that federal habeas courts may “take new evidence in an evidentiary hearing” when § 2254(d) does not
bar relief). This evidence included the results of various IQ tests—which, when adjusted to account for measurement errors,
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
4
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
indicated that Brumfield had an IQ score between 65 and 70, 854 F.Supp.2d, at 392—testimony and expert reports regarding
Brumfield's adaptive behavior and “significantly limited conceptual skills,” id., at 401, and proof that these deficits in intellectual
functioning had exhibited themselves before Brumfield reached adulthood, id., at 405. Thus, the District Court held, Brumfield
had “demonstrated he is mentally retarded as defined by Louisiana law” and was “ineligible for execution.” Id., at 406.
The United States Court of Appeals for the Fifth Circuit reversed. 744 F.3d 918, 927 (2014). It held that Brumfield's federal
habeas petition failed to satisfy either of § 2254(d)'s requirements. With respect to the District Court's conclusion that the state
court had unreasonably applied clearly established federal law, the Fifth Circuit rejected the notion that any of this Court's
precedents required a state court to grant an Atkins claimant the funds necessary to make a threshold showing of intellectual
disability. See 744 F.3d, at 925–926. As for the District Court's holding that the state court's decision rested on an unreasonable
determination of the facts, the Fifth Circuit declared that its “review of the record persuad[ed it] that the state court did not abuse
its discretion when it denied Brumfield an evidentiary hearing.” Id., at 926. Having found that Brumfield's petition failed to
clear § 2254(d)'s hurdle, the Fifth Circuit did not review the District Court's conclusion that Brumfield is, in fact, intellectually
disabled. See id., at 927, and n. 8.
We granted certiorari on both aspects of the Fifth Circuit's § 2254(d) analysis, 574 U.S. ––––, 135 S.Ct. 752, 190 L.Ed.2d 474
(2014), and now vacate its decision and remand for further proceedings.
II
Before this Court, Brumfield advances both of the rationales on which the District Court relied in holding § 2254(d) to be
satisfied. Because we agree that the state court's rejection of Brumfield's request for an Atkins hearing was premised on an
“unreasonable determination of the facts” within the meaning of § 2254(d)(2), we need not address whether its refusal to grant
him expert funding, or at least the opportunity to seek pro bono expert assistance to further his threshold showing, reflected an
“unreasonable application of ... clearly established Federal law,” § 2254(d)(1).
In conducting the § 2254(d)(2) inquiry, we, like the courts below, “look through” the Louisiana Supreme Court's summary
denial of Brumfield's petition for review and evaluate the state trial court's reasoned decision refusing to grant Brumfield an
Atkins evidentiary hearing. See Johnson v. Williams, 568 U.S. ––––, ––––, n. 1, 133 S.Ct. 1088, 1094, n. 1, 185 L.Ed.2d 105
(2013); Ylst v. Nunnemaker, 501 U.S. 797, 806, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Like Brumfield, we do not question
the propriety of the legal standard the trial court applied, and presume that a rule according an evidentiary hearing only to those
capital defendants who raise a “reasonable doubt” as to their intellectual disability is consistent with our decision in Atkins.
Instead, we train our attention on the two underlying factual determinations on which the trial court's decision was premised
—that Brumfield's IQ score was inconsistent with a diagnosis of intellectual *2277 disability and that he had presented no
evidence of adaptive impairment. App. to Pet. for Cert. 171a–172a. 3
[1] [2] [3] We may not characterize these state-court factual determinations as unreasonable “merely because [we] would
have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 175 L.Ed.2d
738 (2010). Instead, § 2254(d)(2) requires that we accord the state trial court substantial deference. If “ ‘[r]easonable minds
reviewing the record might disagree’ about the finding in question, ‘on habeas review that does not suffice to supersede the trial
court's ... determination.’ ” Ibid. (quoting Rice v. Collins, 546 U.S. 333, 341–342, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006)). As
we have also observed, however, “[e]ven in the context of federal habeas, deference does not imply abandonment or abdication
of judicial review,” and “does not by definition preclude relief.” Miller–El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154
L.Ed.2d 931 (2003). Here, our examination of the record before the state court compels us to conclude that both of its critical
factual determinations were unreasonable.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
5
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
A
[4] The state trial court's rejection of Brumfield's request for an Atkins hearing rested, first, on Dr. Bolter's testimony that
Brumfield scored 75 on an IQ test and may have scored higher on another test. See App. to Pet. for Cert. 171a. These scores, the
state court apparently believed, belied the claim that Brumfield was intellectually disabled because they necessarily precluded
any possibility that he possessed subaverage intelligence—the first of the three criteria necessary for a finding of intellectual
disability. But in fact, this evidence was entirely consistent with intellectual disability.
[5] To qualify as “significantly subaverage in general intellectual functioning” in Louisiana, “one must be more than two
standard deviations below the mean for the test of intellectual functioning.” Williams, 831 So.2d, at 853 (internal quotation
marks omitted). On the Wechsler scale for IQ—the scale employed by Dr. Bolter—that would equate to a score of 70 or less.
See id., at 853–854, n. 26.
As the Louisiana Supreme Court cautioned in Williams, however, an IQ test result cannot be assessed in a vacuum. In accord
with sound statistical methods, the court explained: “[T]he assessment of intellectual functioning through the primary reliance
on IQ tests must be tempered with attention to possible errors in measurement.” *2278 Ibid. Thus, Williams held, “[a]lthough
Louisiana's definition of significantly subaverage intellectual functioning does not specifically use the word ‘approximately,’
because of the SEM [ (standard error of measurement) ], any IQ test score has a margin of error and is only a factor in assessing
mental retardation.” Id., at 855, n. 29.
Accounting for this margin of error, Brumfield's reported IQ test result of 75 was squarely in the range of potential intellectual
disability. The sources on which Williams relied in defining subaverage intelligence both describe a score of 75 as being
consistent with such a diagnosis. See AAMR, at 59; DSM–IV, at 41–42; see also State v. Dunn, 2001–1635 (La.5/11/10), 41
So.3d 454, 470 (“The ranges associated with the two scores of 75 brush the threshold score for a mental retardation diagnosis”). 4
Relying on similar authorities, this Court observed in Atkins that “an IQ between 70 and 75 or lower ... is typically considered
the cutoff IQ score for the intellectual function prong of the mental retardation definition.” 536 U.S., at 309, n. 5, 122 S.Ct.
2242. Indeed, in adopting these definitions, the Louisiana Supreme Court anticipated our holding in Hall v. Florida, 572 U.S.
––––, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), that it is unconstitutional to foreclose “all further exploration of intellectual
disability” simply because a capital defendant is deemed to have an IQ above 70. Id., at ––––, 134 S.Ct., at 1990; see also
id., at ––––, 134 S.Ct., at 1996 (“For professionals to diagnose—and for the law then to determine—whether an intellectual
disability exists once the SEM applies and the individual's IQ score is 75 or below the inquiry would consider factors indicating
whether the person had deficits in adaptive functioning”). To conclude, as the state trial court did, that Brumfield's reported
IQ score of 75 somehow demonstrated that he could not possess subaverage intelligence therefore reflected an unreasonable
determination of the facts.
Nor was there evidence of any higher IQ test score that could render the state court's determination reasonable. The state court
claimed that Dr. Jordan, who examined Brumfield but never testified at trial, “came up with a little bit higher IQ.” App. to Pet.
for Cert. 171a. At trial, the existence of such a test score was mentioned only during the cross-examination of Dr. Bolter, who
had simply acknowledged the following: “Dr. Jordan rated his intelligence just a little higher than I did. But Dr. Jordan also
only did a screening test and I gave a standardized measure of intellectual functioning.” App. 133a. And in fact, Dr. Jordan's
written report provides no IQ score. See id., at 429a. 5 The state court therefore could not reasonably *2279 infer from this
evidence that any examination Dr. Jordan had performed was sufficiently rigorous to preclude definitively the possibility that
Brumfield possessed subaverage intelligence. See State v. Dunn, 2001–1635 (La.11/1/02), 831 So.2d 862, 886, n. 9 (ordering
Atkins evidentiary hearing even though “prison records indicate[d]” the defendant had an “ ‘estimated IQ of 76,’ ” emphasizing
testimony that prison officials “did not do the formal IQ testing”).
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
6
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
B
[6] The state court's refusal to grant Brumfield's request for an Atkins evidentiary hearing rested, next, on its conclusion that
the record failed to raise any question as to Brumfield's “impairment ... in adaptive skills.” App. to Pet. for Cert. 171a. That
determination was also unreasonable.
The adaptive impairment prong of an intellectual disability diagnosis requires an evaluation of the individual's ability to function
across a variety of dimensions. The Louisiana Supreme Court in Williams described three separate sets of criteria that may be
utilized in making this assessment. See 831 So.2d, at 852–854. Although Louisiana courts appear to utilize all three of these
tests in evaluating adaptive impairment, see Dunn, 41 So.3d, at 458–459, 463, for the sake of simplicity we will assume that the
third of these tests, derived from Louisiana statutory law, governed here, as it appears to be the most favorable to the State. 6
Under that standard, an individual may be intellectually disabled if he has “substantial functional limitations in three or more of
the following areas of major life activity: (i) Self-care. (ii) Understanding and use of language. (iii) Learning. (iv) Mobility. (v)
Self-direction. (vi) Capacity for independent living.” Williams, 831 So.2d, at 854 (quoting then La.Rev.Stat. Ann. § 28:381(12)
(repealed 2005)).
The record before the state court contained sufficient evidence to raise a question as to whether Brumfield met these criteria.
During the sentencing hearing, Brumfield's mother testified that Brumfield had been born prematurely at a very low birth weight.
App. 28a. She also recounted that he had been taken out of school in the fifth grade and hospitalized due to his behavior, and
recalled an incident in which he suffered a seizure. Id., at 34a–38a, 41a, 47a.
Social worker Dr. Guin elaborated on this testimony, explaining that Brumfield's low birth weight indicated “that something
ha[d] gone wrong during the pregnancy,” that medical records suggested Brumfield had “slower responses than normal babies,”
and that “they knew that something was wrong at that point.” Id., at 75a–76a. Dr. Guin also confirmed that, beginning in fifth
grade, Brumfield had been placed in special classes in school and in multiple mental health facilities, and had been prescribed
antipsychotics and sedatives. Id., at 89a, 93a–94a. 7 Moreover, one report *2280 Dr. Guin reviewed from a facility that treated
Brumfield as a child “questioned his intellectual functions,” and opined that “he probably had a learning disability related to
some type of slowness in motor development, some type of physiological [problem].” Id., at 89a. Dr. Guin herself reached
a similar conclusion, stating that Brumfield “obviously did have a physiologically linked learning disability that he was born
with,” and that his “basic problem was that he ... could not process information.” Id., at 90a, 98a.
Finally, Dr. Bolter, who had performed “a comprehensive battery of tests,” confirmed that Brumfield had a “borderline general
level of intelligence.” Id., at 127a–128a. His low intellect manifested itself in a fourth-grade reading level—and he reached
that level, Dr. Bolter elaborated, only with respect to “simple word recognition,” and “not even comprehension.” Id., at 128a;
see also id., at 134a. In a written report submitted to the state court, Dr. Bolter further noted that Brumfield had deficiencies
“frequently seen in individuals with a history of learning disabilities,” and “clearly” had “learning characteristics that make it
more difficult for him to acquire new information.” Id., at 418a, 420a. Dr. Bolter also testified that Brumfield's low birth weight
had “place[d] him [at] a risk of some form of potential neurological trauma,” and affirmed that the medications administered
to Brumfield as a child were generally reserved for “severe cases.” Id., at 130a, 132a.
All told, then, the evidence in the state-court record provided substantial grounds to question Brumfield's adaptive functioning.
An individual, like Brumfield, who was placed in special education classes at an early age, was suspected of having a learning
disability, and can barely read at a fourth-grade level, certainly would seem to be deficient in both “[u]nderstanding and use
of language” and “[l]earning”—two of the six “areas of major life activity” identified in Williams, 831 So.2d, at 854. And the
evidence of his low birth weight, of his commitment to mental health facilities at a young age, and of officials' administration
of antipsychotic and sedative drugs to him at that time, all indicate that Brumfield may well have had significant deficits in at
least one of the remaining four areas. See ibid.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
7
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
In advancing its contrary view of the record, the state court noted that Dr. Bolter had described Brumfield as someone with
“an antisocial personality.” App. 127a; see App. to Pet. for Cert. 171a. The relevance of this diagnosis is, however, unclear, as
an antisocial personality is not inconsistent with any of the above-mentioned areas of adaptive impairment, or with intellectual
disability more generally. The DSM–IV—one of the sources on which the Williams court relied in defining intellectual disability
—provides: “The diagnostic criteria for Mental Retardation do not include an exclusion criterion; therefore, the diagnosis should
be made ... regardless of and in addition to the presence of another disorder.” DSM–IV, at 47; see also AAMR, at 172 (noting
that individuals with intellectual disability also tend to have a number of other mental health disorders, including personality
disorders).
To be sure, as the dissent emphasizes, post, at 2289 – 2290, 2292 – 2293, other evidence in the record before the state court may
have cut against Brumfield's claim of intellectual disability. Perhaps most significant, *2281 in his written report Dr. Bolter
stated that Brumfield “appears to be normal from a neurocognitive perspective,” with a “normal capacity to learn and acquire
information when given the opportunity for repetition,” and “problem solving and reasoning skills” that were “adequate.” App.
421a. Likewise, the underlying facts of Brumfield's crime might arguably provide reason to think that Brumfield possessed
certain adaptive skills, as the murder for which he was convicted required a degree of advanced planning and involved the
acquisition of a car and guns. But cf. AAMR, at 8 (intellectually disabled persons may have “strengths in social or physical
capabilities, strengths in some adaptive skill areas, or strengths in one aspect of an adaptive skill in which they otherwise show
an overall limitation”).
[7] It is critical to remember, however, that in seeking an evidentiary hearing, Brumfield was not obligated to show that he
was intellectually disabled, or even that he would likely be able to prove as much. Rather, Brumfield needed only to raise a
“reasonable doubt” as to his intellectual disability to be entitled to an evidentiary hearing. See Williams, 831 So.2d, at 858, n. 33.
The Louisiana Supreme Court's decision in Williams illustrated how low the threshold for an evidentiary hearing was intended
to be: There, the court held that the defendant was entitled to a hearing on his Atkins claim notwithstanding the fact that “the
defense's own expert testified unequivocally, at both the guilt and penalty phases of trial, that [the] defendant is not mentally
retarded,” an assessment “based on the fact that [the] defendant [was] not deficient in adaptive functioning.” 831 So.2d, at 855;
see also Dunn, 831 So.2d, at 885, 887 (ordering hearing despite expert testimony that the defendant “had never been identified
as a child who was a slow learner,” and had “received college credit for courses completed during his incarceration”). Similarly,
in light of the evidence of Brumfield's deficiencies, none of the countervailing evidence could be said to foreclose all reasonable
doubt. An individual who points to evidence that he was at risk of “neurological trauma” at birth, was diagnosed with a learning
disability and placed in special education classes, was committed to mental health facilities and given powerful medication,
reads at a fourth-grade level, and simply cannot “process information,” has raised substantial reason to believe that he suffers
from adaptive impairments.
That these facts were alone sufficient to raise a doubt as to Brumfield's adaptive impairments is all the more apparent given
that Brumfield had not yet had the opportunity to develop the record for the purpose of proving an intellectual disability claim.
At his pre-Atkins trial, Brumfield had little reason to investigate or present evidence relating to intellectual disability. In fact,
had he done so at the penalty phase, he ran the risk that it would “enhance the likelihood ... future dangerousness [would] be
found by the jury.” Atkins, 536 U.S., at 321, 122 S.Ct. 2242. Thus, given that the evidence from trial provided good reason to
think Brumfield suffered from an intellectual disability, there was even greater cause to believe he might prove such a claim in
a full evidentiary hearing. Indeed, the Louisiana Supreme Court had made clear that a capital defendant in Brumfield's position
should be accorded this additional benefit of the doubt when it defined the standard for assessing whether a hearing is required.
Echoing Atkins ' observation that penalty-phase evidence of intellectual disability can be a “two-edged sword,” ibid., Williams
noted that where a trial “was conducted prior to Atkins,” the defense's “trial strategy may have been to shift the focus away from
any diagnosis of mental retardation.” *2282 831 So.2d, at 856, n. 31. For that reason, the Williams court considered the fact
that the defendant “ha[d] not had the issue of mental retardation put before the fact finder in light of the Atkins restriction on
the death penalty” as a factor supporting the requisite threshold showing that “entitled [him] to an evidentiary hearing.” Id., at
857; accord, Dunn, 831 So.2d, at 886. Here, the state trial court should have taken into account that the evidence before it was
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
8
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
sought and introduced at a time when Brumfield's intellectual disability was not at issue. The court's failure to do so resulted
in an unreasonable determination of the facts.
III
A
Urging affirmance of the decision below, the State advances two additional arguments that we need discuss only briefly.
[8] First, the State suggests that rather than being evaluated pursuant to § 2254(d)(2)'s “unreasonable determination of the
facts” standard, Brumfield's attack on the state trial court's decision should instead be “ ‘reviewed under the arguably more
deferential standard set out in § 2254(e)(1).’ ” Brief for Respondent 30 (quoting Wood, 558 U.S., at 301, 130 S.Ct. 841). 8 We
have not yet “defined the precise relationship between § 2254(d)(2) and § 2254(e)(1),” Burt v. Titlow, 571 U.S. ––––, ––––, 134
S.Ct. 10, 15, 187 L.Ed.2d 348 (2013), and we need not do so here. The State did not press below the theory that § 2254(e)(1)
supplies the governing standard when a court evaluates whether a habeas petitioner has satisfied § 2254(d)(2)'s requirements,
the Fifth Circuit did not address that possibility, and the State in its brief in opposition to certiorari failed to advance any specific
argument that the decision below could be supported by invocation of that statutory provision. See Brief in Opposition 60–64.
The argument is therefore “properly ‘deemed waived.’ ” Granite Rock Co. v. Teamsters, 561 U.S. 287, 306, 130 S.Ct. 2847,
177 L.Ed.2d 567 (2010) (quoting this Court's Rule 15.2).
[9] Second, the State contends that Brumfield's request for an Atkins hearing was properly rejected because the record evidence
failed to show that Brumfield's intellectual deficiencies manifested while he was in the “developmental stage”—that is, before
he reached adulthood. Williams, 831 So.2d, at 854. But the state trial court never made any finding that Brumfield had failed
to produce evidence suggesting he could meet this age-of-onset requirement. There is thus no determination on that point to
which a federal court must defer in assessing whether Brumfield satisfied § 2254(d). See Panetti v. Quarterman, 551 U.S. 930,
953–954, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007); compare, e.g., Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156
L.Ed.2d 471 (2003) (reviewing de novo the question whether petitioner had suffered prejudice where state court's reasoned
decision rejecting claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), was premised
solely on conclusion that attorney's performance had not been constitutionally deficient), with Harrington v. Richter, 562 U.S.
86, 98, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (requiring federal *2283 habeas court to defer to hypothetical reasons state
court might have given for rejecting federal claim where there is no “opinion explaining the reasons relief has been denied”).
In any event, the state-court record contained ample evidence creating a reasonable doubt as to whether Brumfield's disability
manifested before adulthood: Both Dr. Guin and Dr. Bolter testified at length about Brumfield's intellectual shortcomings as a
child and their possible connection to his low birth weight. If Brumfield presented sufficient evidence to suggest that he was
intellectually limited, as we have made clear he did, there is little question that he also established good reason to think that
he had been so since he was a child.
B
Finally, we offer a few additional words in response to Justice THOMAS' dissent. We do not deny that Brumfield's crimes were
terrible, causing untold pain for the victims and their families. But we are called upon today to resolve a different issue. There
has already been one death that society rightly condemns. The question here is whether Brumfield cleared AEDPA's procedural
hurdles, and was thus entitled to a hearing to show that he so lacked the capacity for self-determination that it would violate the
Eighth Amendment to permit the State to impose the “law's most severe sentence,” Hall, 572 U.S., at ––––, 134 S.Ct., at 1993,
and take his life as well. That question, and that question alone, we answer in the affirmative.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
9
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
***
We hold that Brumfield has satisfied the requirements of § 2254(d). The judgment of the United States Court of Appeals for
the Fifth Circuit is therefore vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice THOMAS, with whom THE CHIEF JUSTICE, Justice SCALIA, and Justice ALITO join as to all but Part I–C,
dissenting.
Federal collateral review of state convictions interrupts the enforcement of state criminal laws and undermines the finality of
state-court judgments. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) addresses that interference by
constraining the ability of federal courts to grant relief to state prisoners. Today, the Court oversteps those limits in a decision
that fails to respect the Louisiana state courts and our precedents. I respectfully dissent.
I
This case is a study in contrasts. On the one hand, we have Kevan Brumfield, a man who murdered Louisiana police officer
Betty Smothers and who has spent the last 20 years claiming that his actions were the product of circumstances beyond his
control. On the other hand, we have Warrick Dunn, the eldest son of Corporal Smothers, who responded to circumstances
beyond his control by caring for his family, building a professional football career, and turning his success on the field into
charitable work off the field.
A
Given that the majority devotes a single sentence to a description of the crime for which a Louisiana jury sentenced Brumfield
to death, I begin there.
Corporal Smothers, a 14–year veteran of the Baton Rouge Police Department, was working a second job to support her family
when she was murdered just after midnight on January 7, 1993. Following a 10– *2284 hour shift at the department on
January 6, Corporal Smothers reported to a local grocery store, where she served as a uniformed security officer with the official
authorization of the department. She monitored the security of the grocery store and waited to escort the assistant manager,
Kimen Lee, to a local bank to make the store's nightly deposit.
Corporal Smothers followed her usual practice of driving Lee to the bank in her police cruiser. Shortly after midnight, they
arrived at the bank's night depository. As Lee leaned out of the passenger side door to make the deposit, she heard the racking
of the slide on a handgun. Brumfield and his accomplice, Henri Broadway, then opened fire on the two women.
Brumfield fired seven rounds from a .380–caliber handgun at close range from the left side of the cruiser, while Broadway fired
five rounds from a .25–caliber handgun from the right rear of the cruiser. Brumfield hit Corporal Smothers five times in the
forearm, chest, and head. Lee was hit multiple times as well, causing 11 entrance and exit wounds, but she somehow managed
to slide over on the bench seat and take control of the police car. She drove to a nearby convenience store, where she was able
to call for help and to describe Broadway to police. Emergency responders transported both women to the hospital. Corporal
Smothers was pronounced dead on arrival. Lee survived.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
10
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
On January 11, 1993, Baton Rouge police arrested Brumfield for Corporal Smothers' murder. After several hours of police
interrogation, during which he denied involvement in the murder, Brumfield eventually gave a videotaped confession. 1 He
admitted that, after riding around at night looking for a “hustle,” he had come up with the idea to steal the grocery store's deposit.
He described how he and Broadway hid in the bushes waiting for the car to arrive, and how, when Lee looked back while
trying to make the deposit, he started shooting. He admitted that he had fired seven rounds from his .380–caliber handgun, that
Broadway had fired five shots with the .25–caliber handgun, and that a third man had served as the getaway driver.
A Louisiana jury convicted Brumfield of first-degree murder. In addition to his videotaped confession, the State introduced
evidence that Brumfield had spoken about committing a robbery to several people in the weeks leading up to the murder. He
was facing sentencing on unrelated charges and had promised his pregnant girlfriend that he would obtain money to support her,
their baby, and her child from a previous relationship while he was in jail. The State also introduced evidence that Brumfield
had told an acquaintance right after the murder that he had just killed “a son of a bitch.” Record 3566.
B
At the penalty phase, the State sought a death sentence. It reintroduced the evidence from the guilt phase, along with evidence
of Brumfield's other criminal acts. 2 The felony convictions for which *2285 Brumfield was awaiting sentencing when he
murdered Corporal Smothers were for attempted possession of cocaine and felony theft of a gun. Brumfield had worked only
three months in his adult life because, as he had admitted to his psychologist, he found drug dealing a far more effective way to
make money. In fact, he had been involved a few years earlier in the fatal shooting of a fellow drug dealer in a deal gone bad.
And 10 months after he murdered Corporal Smothers, Brumfield battered another police officer while in prison.
The State also explained that Brumfield's murder of Corporal Smothers was the culmination of a 2–week crime spree. On
Christmas Day 1992, Brumfield robbed Anthony Miller at gunpoint after giving him a ride. He forced Miller out of the car,
put a gun to Miller's head, and pulled the trigger. Fortunately for Miller, the gun misfired, and he survived. One week later,
Brumfield robbed Edna Marie Perry and her daughter Trina Perkins at gunpoint as they were walking along the side of the
road. Brumfield pulled alongside them, pointed a sawed-off shotgun at Perry, and said, “Hand it over, bitch.” Id., at 3790. Perry
turned over her purse, but pleaded with Brumfield to give back the pictures from her deceased son's funeral that she carried in
the purse. He responded none too courteously, “Bitch, you dead,” and drove away. Ibid.
The State also introduced evidence about the murder's broader impact. In addition to serving as a police officer, Corporal
Smothers was a single mother to six children and a volunteer coach at a local track club. Her children, who ranged from 10 to
18 years old, went to live with their grandmother after the murder. The loss of their mother weighed heavily on all of them.
It was particularly hard on Corporal Smothers' eldest son, Warrick, who had been especially close to his mother, and on her
second eldest son, Derrick Green, who had been hoping to spend more time with her after Warrick went off to college. Derrick
was deprived of that chance, and he and Warrick had to take on extra responsibilities to care for their younger siblings.
For his part, Brumfield introduced evidence that his crimes were “beyond his control,” a product of his disadvantaged
background. Id., at 3927. He was born at a low birth weight, and his mother testified that he spent several months in the hospital
shortly after his birth. His father left the family, and his stepfather would make him sit in the corner on hot rice, whip him, and
hit him over the head with a telephone book. His brother eventually decided to go live with their biological father. Brumfield
opted to stay with his mother and stepfather.
When he was around seven or eight years old, Brumfield began to have behavioral problems. He had trouble staying in his seat
at school, was disruptive, easily distracted, and prone to fighting. He was eventually taken to a psychiatric hospital to address
his hyperactivity. Although he was a straight-A student until the third grade, his time in four or five group homes educated him
in the criminal lifestyle, and his grades began to suffer.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
11
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
Dr. Cecile Guin, a social worker, testified that Brumfield's hyperactivity and acting out could be traced largely to his low
birth weight, lack of a supportive home environment, and abusive stepfather. Although she was not a medical doctor, she
*2286 concluded that Brumfield had a “neurologically based hyperactive or learning disability problem.” Id., at 3886.
She acknowledged, however, that his school records described him as having a behavior disorder—“a pattern situation or
inappropriate behavior extended over a long period of time which cannot be explained by intellectual, sensory, neurological
or other general factors.” Id., at 3882. She also admitted on cross-examination that a psychologist, Brian T. Jordan, had not
diagnosed Brumfield as suffering from any neurological disorder, but instead from “a sociopathic personality disorder, antisocial
type, poor impulse control, especially in the area of aggression.” Id., at 3897–3898.
Dr. John Bolter, a clinical neuropsychologist, testified on behalf of the defense that Brumfield suffered from an antisocial
personality disorder. Based on a battery of tests employed to determine whether Brumfield suffered from “any kind of
neurological deficits in cognitive functions,” Dr. Bolter concluded that Brumfield early on in life “manifest[ed] ... a conduct
disorder with extreme levels of aggressivity and a disregard for the basic rights of others,” along with “an attention deficit
disorder of some type.” Id., at 3904. Over time, he “emerged into what looks more like an antisocial personality,” and he
continued to have “attention difficulty” and “borderline general level of intelligence.” Ibid. Brumfield's IQ score was a 75,
placing him at about the seventh percentile of the general population or “on the low end of intelligence.” Ibid. His reading skills
were at about a fourth-grade level, while his math and spelling skills were at about a sixth-grade level. On the other hand, Dr.
Bolter concluded that Brumfield's “problem solving, judgment and reasoning skills [we]re sufficient to meet the demands of
everyday adulthood and he [wa]s not showing any decrement in the types of problems one would assume to see if they were
suffering from an underlying organic basis or mental illness.” Id., at 275. Dr. Bolter had also reviewed Dr. Jordan's report,
and he testified that the only inconsistency in their conclusions was that Dr. Jordan rated Brumfield's intelligence “just a little
higher than” he did. Id., at 3907.
The jury unanimously recommended that Brumfield be sentenced to death. It found three statutory aggravators that made him
eligible for that penalty: He was engaged in the attempted perpetration of an armed robbery; he knowingly created a risk of
death or great bodily harm to more than one person; and the victim was a peace officer engaged in her lawful duties. The jury
found no statutory mitigators.
C
Brumfield's argument that his actions were the product of his disadvantaged background is striking in light of the conduct of
Corporal Smothers' children following her murder. Most widely known is that of Warrick. Though he had turned 18 just two
days before Brumfield murdered his mother, he quickly stepped into the role of father figure to his younger siblings. 3 In his
view, it “was up to [him] to make sure that everybody grew up to be somebody.” W. Dunn & D. Yaeger, Running for my Life:
My Journey in the Game of Football and Beyond 37 (2008).
*2287 To that end, Warrick led by example, becoming a star running back at Florida State University and then in the National
Football League (NFL). During his time at Florida State, he set records on the field while coping with the loss of his mother. Id.,
at 71, 111, 117. Though separated from his family in Louisiana, he called his brothers and sisters regularly, 4 sought parenting
advice from his coach, and returned home when he could. Id., at 111–113. He kept his mother's pearl earrings, stained with her
blood from the night she was murdered, in a box on his dresser. Id., at 71. After four years at Florida State, Dunn was drafted by
the Tampa Bay Buccaneers. Concerned that some of his siblings were struggling in Baton Rouge, he moved the three youngest
into his home in Tampa Bay. Id., at 139. Although the strain of playing for the Buccaneers and raising his family weighed on
him, he “accepted it as [his] responsibility ... to make sure they stayed on the right path.” Ibid.
While balancing football and family, Dunn still found time for others. He started Homes for the Holidays, a charitable
organization that decorates and fully furnishes—down to the toothbrush—homes obtained by single mothers through first-time
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
12
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
homeowner assistance programs. Dunn was inspired by his own mother, who spent years working toward the purchase of a
home for her family, but, thanks to Brumfield, did not live to reach her goal. Id., at 152.
Dunn's contributions did not end there. After joining the Atlanta Falcons in 2002, he expanded the reach of Homes for the
Holidays, id., at 157; traveled overseas to visit our Armed Forces, id., at 200–201; led an effort to raise money from the NFL to
help respond to the tragic effects of Hurricane Katrina, id., at 202–205; and became a founding member of Athletes for Hope,
an organization dedicated to helping athletes find and pursue charitable opportunities, id., at 207–208. Following his retirement
from professional football in 2008, Dunn launched two more charitable organizations in honor of his mother: Betty's Hope, a
mobile bereavement program that offers no-cost grief counseling services to children in the Baton Rouge area, and Homes for
Service, a program dedicated to helping service members, police officers, and firefighters achieve home ownership. As Dunn
once remarked, “I knew that was what my mother would have been most proud of: not my records, not my awards, but the way
I used my worldly success to give something back.” Id., at 157.
D
Brumfield, meanwhile, has spent the last 20 years engaged in a ceaseless campaign of review proceedings. He raised numerous
challenges on direct appeal to the trial court's discovery orders, admission of evidence, jury instructions, and preservation of
the record; the prosecutor's references during the penalty phase; and the alleged deficiencies of his trial counsel. The Louisiana
Supreme Court rejected each of these claims, State v. Brumfield, 96–2667 (La.10/20/98), 737 So.2d 660, and this Court denied
his petition for a writ of certiorari, *2288 Brumfield v. Louisiana, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999).
In 2000, Brumfield filed his first petition for state post-conviction relief. In that petition, among other things, he alleged 9
instances of prosecutorial misconduct, over 18 instances of ineffective assistance of counsel, and at least 17 constitutional errors
in the jury instructions at the guilt phase of his trial.
Brumfield sought and received multiple extensions of time before finally filing his amended petition for state postconviction
relief in 2003. He raised many of the same claims as he had in his initial petition, but also asserted for the first time that he
was mentally retarded and therefore ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153
L.Ed.2d 335 (2002). In support of that claim, he alleged that his IQ score was 75, that his reading level was that of a fourth
grader, that he was born prematurely with a low birth weight and indications of slower responses than normal babies, that he
had suffered seizures and been prescribed a variety of medications since childhood, that he was twice treated in psychiatric
hospitals during childhood and adolescence, and that he had been diagnosed with a learning disability.
The state court denied Brumfield's petition. In a ruling from the bench, the court explained that not every defendant who requests
an evidentiary hearing on an Atkins claim is entitled to one. Based on its review of “the application, the response, the record,
portions of the transcript on that issue, and the evidence presented, including Dr. Bolter's testimony, Dr. Guin's testimony, which
refers to and discusses Dr. Jordan's report,” App. to Pet. for Cert. 171a, it concluded that Brumfield had not met his burden to
make a threshold showing of mental retardation. In particular, the court noted that Brumfield had an IQ score of 75 or higher
and had demonstrated no impairment in adaptive skills. Although Brumfield had requested fees to develop his Atkins claim, the
trial court did not explicitly rule on the motion, and Brumfield's counsel did not prompt him to do so.
Brumfield then sought federal collateral review. In his first habeas application, he repeated many of his claims, including the
claim that he is ineligible to be executed under Atkins. He requested funds to develop that claim in an evidentiary hearing.
The District Court dismissed all of his claims except for the Atkins one and ordered an evidentiary hearing. As the majority
describes, the District Court eventually granted a writ of habeas corpus. It concluded that the state court had based its denial
of Brumfield's Atkins claim on an unreasonable determination of the facts and had unreasonably applied clearly established
Supreme Court precedent in denying him funds to develop the claim. The U.S. Court of Appeals for the Fifth Circuit reversed,
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
13
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
concluding that the District Court should not have conducted an evidentiary hearing and that AEDPA did not afford relief on
either of the grounds identified by the District Court. 744 F.3d 918, 926–927 (2014).
II
AEDPA limits “the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner.”
Cullen v. Pinholster, 563 U.S. 170, ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). As relevant here, 28 U.S.C. § 2254(d)
provides that a federal court may not grant an application
“with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
*2289 “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States; or
“(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.”
In applying this “highly deferential standard for evaluating state-court rulings, ... state-court decisions [must] be given the benefit
of the doubt.” Pinholster, 563 U.S., at ––––, 131 S.Ct., at 1398 (internal quotation marks omitted). They must be reviewed
solely on “the record that was before the state court that adjudicated the claim on the merits.” Id., at ––––, ––––, and n. 7, 131
S.Ct., at 1398, 1418, and n. 7. And the prisoner must rebut any state court factual findings he seeks to challenge by clear and
convincing evidence under § 2254(e)(1). Burt v. Titlow, 571 U.S. ––––, ––––, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013).
Brumfield presents two grounds for relief under this framework. First, he argues that the Louisiana state court denied his Atkins
claim based on an unreasonable determination of the facts, § 2254(d)(2). 5 Second, he argues that the Louisiana state court
violated clearly established federal law as determined by this Court when it denied him funding to develop evidence for that
claim, § 2254(d)(1).
III
The majority resolves the case solely on Brumfield's first ground, so I begin there.
A
The Louisiana state court's decision to deny Brumfield's Atkins claim was not based on an unreasonable determination of the
facts. “[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a
different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010). Where the
record supports a state court's factual determinations, the prisoner cannot make that showing. See, e.g., Titlow, supra, at ––––
– ––––, 134 S.Ct., at 15–16. Here, the state court rejected Brumfield's Atkins claim in an oral ruling as follows:
“Dr. Bolter in particular found [Brumfield] had an IQ of over—or 75. Dr. Jordan actually came up with a little bit higher
IQ. I do not think that the defendant has demonstrated impairment based on the record in adaptive skills. The doctor testified
that he did have an anti-social personality or sociopath, and explained it as someone with no conscience, and the defendant
hadn't carried his burden [of] placing the claim of mental retardation at issue.” App. to Pet. for Cert. 171a–172a.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
14
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
That statement contains three factual determinations: (1) Brumfield's IQ was at least 75; (2) Brumfield had not demonstrated
impairment in adaptive skills; and *2290 (3) Brumfield has an antisocial personality disorder. Each of these facts is amply
supported by the state-court record.
To begin, the record justifies a finding that Brumfield's IQ is 75, if not a bit higher. Dr. Bolter testified, without contradiction,
that Brumfield scored a 75 on the IQ test he administered and that “Dr. Jordan rated [Brumfield's] intelligence just a little higher
than I did.” Record 3907. Dr. Bolter's report similarly shows that Brumfield's test results were “lower than estimated by Dr.
Jordan in January of this year,” but it notes that “Dr. Jordan was using a screening measure which proves to be less reliable.”
Id., at 272. The parties dispute whether Dr. Jordan's report was made part of the record, but to the extent it was, it confirms Dr.
Bolter's testimony. Although it does not specify an IQ score, Dr. Jordan's report states that Brumfield's “intellectual function
is slightly limited but generally close to the Average Range” and that a psychological test showed him “to be intellectually
functioning generally in the low Average Range.” App. 428a–429a. Because two thirds of all IQs are expected to lie between
85 and 115, a fair reading of Dr. Jordan's statements would suggest an IQ score closer to 85. See American Association on
Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Supports 37 (9th ed. 1992).
The record likewise supports the state court's finding that Brumfield is not impaired in adaptive skills. Under Atkins, the relevant
adaptive skill areas are “ ‘communication, self-care, home living, social skills, community use, self-direction, health and safety,
functional academics, leisure, and work.’ ” 536 U.S., at 308, n. 3, 122 S.Ct. 2242. Dr. Bolter reported that Brumfield's speech
was “intelligible and prosodic” without “evidence of thought derailment,” Record 271, and that his writing appeared “normal,”
id., at 273. Brumfield lived independently before his arrest, often staying with his pregnant girlfriend and had been able to
maintain a job for approximately three months before quitting “because his earnings were better through distributing drugs and
selling firearms.” Id., at 271. Although Brumfield reads at a fourth-grade level and spells and performs arithmetic at a sixthgrade level, Dr. Bolter concluded that he “has a normal capacity to learn and acquire information when given the opportunity
for repetition.” Id., at 276.
Finally, the record supports a finding that Brumfield has an antisocial personality disorder. Dr. Bolter testified, without
contradiction, that what manifested in childhood as a conduct disorder had developed in adulthood into an antisocial personality
disorder. He described that disorder as “an absence of a conscience” and “the ability to disregard the rights and feelings of
others in favor of what you want” without any “sense of compunction or remorse.” Id., at 3909. Dr. Guin acknowledged that
Dr. Jordan had reached a similar diagnosis. Brumfield presented no medical evidence disputing it. That the majority disputes
“[t]he relevance of this diagnosis,” ante, at 2280, does not make it any less supported by the record.
Brumfield thus not only has failed to rebut the state court's factual findings by clear and convincing evidence, § 2254(e)(1),
he has failed to show that they were anything other than eminently reasonable. Under any fairminded application of § 2254(d)
(2), he would not be entitled to relief.
B
1
The majority reaches the opposite result with a bit of legerdemain, recasting legal determinations as factual ones. It contends
*2291 that the state court erred in denying Brumfield's claim because the evidence Brumfield presented “was entirely
consistent with intellectual disability” as defined in Louisiana and thus sufficient to entitle him to an evidentiary hearing. Ante,
at 2277 – 2278. That argument betrays the legal nature of the majority's dispute with the state court's decision: The majority
does not—because it cannot—disagree that each of the state court's factual findings was supported by the record. See ante,
at 2278 – 2279 (not disputing Brumfield's IQ score); ante, at 2280 – 2281 (not disputing Brumfield's diagnosed antisocial
personality disorder); ibid. (acknowledging that “evidence in the record before the state court may have cut against Brumfield's
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
15
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
claim of intellectual disability”); ante, at 2281 (acknowledging that “the underlying facts of Brumfield's crime might arguably
provide reason to think that Brumfield possessed certain adaptive skills”). Instead, the majority disagrees with the state court's
conclusion that Brumfield had not made a sufficient threshold showing of mental retardation to be entitled to an evidentiary
hearing on his claim. Ante, at 2281 – 2282.
That conclusion, however, is properly characterized as one based on the application of law to fact, not on the determination of
the facts themselves. 6 As we have explained, “The question whether a state court errs in determining the facts is a different
question from whether it errs in applying the law.” Rice v. Collins, 546 U.S. 333, 342, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006).
No one can dispute that Brumfield's IQ score, adaptive skills, and antisocial personality disorder are facts. By contrast, the
question whether Brumfield has met the legal standard for relief on, or at least an evidentiary hearing with regard to, his Atkins
claim requires the application of law to those facts. See Panetti v. Quarterman, 551 U.S. 930, 948–952, 127 S.Ct. 2842, 168
L.Ed.2d 662 (2007) (applying § 2254(d)(1) to conclude that a state court unreasonably applied clearly established federal law
when it failed to provide a prisoner with a competency hearing after he made “ ‘a substantial threshold showing of insanity’
”). 7 Indeed, in discussing each of these “factual determinations,” the majority turns first to state law to determine what showing
a prisoner must make to qualify as mentally retarded. Ante, at 2277 – 2278, 2278 – 2279 (citing State v. Williams, 2001–
165 (La.11/1/02), 831 So.2d 835). If the majority's disagreement with the state court's decision were truly based on “factual
determinations,” *2292 it is hard to understand what relevance state law would have.
2
Even on its own terms, the majority's so-called “factual” analysis fails. The majority holds that the record supported a finding
that Brumfield qualified for a hearing on mental retardation under state law. To reiterate, even if true, this state-law-based
legal analysis cannot overcome AEDPA's bar to relief under § 2254(d)(2). To make matters worse, the majority gets the state
law wrong.
The Louisiana Supreme Court's decision in Williams instructed state courts to use the statutory standard for determining when
a pretrial competency hearing is necessary—when there is “ ‘reasonable ground to doubt the defendant's mental capacity to
proceed.’ ” 831 So.2d, at 858, n. 33 (quoting La.Code Crim. Proc. Ann., Art. 643 (West 2003)). 8 It made clear that “reasonable
ground to doubt” is “not a reference to proof beyond a reasonable doubt in the guilt phase of the trial,” 831 So.2d, at 858, n. 33
(emphasis added), 9 and that the burden was on the prisoner to bring forward objective evidence to put his mental retardation
at issue.
Brumfield's IQ test score failed to meet the standard for significantly subaverage intellectual functioning under Louisiana law.
As Williams explained, Louisiana statutes defined “ ‘significantly subaverage general intellectual functioning’ ” as “ ‘more than
two standard deviations below the mean for the test of intellectual functioning,’ ” and a person with intellectual functioning
two standard deviations below the mean “would have an IQ of 70 using the Wechsler scale.” Id., at 853, and n. 26. Accounting
for the standard error of measurement, Williams explained that the requisite IQ could range “from 66 to 74.” Id., at 854, n.
26. 10 The majority prefers to avoid this language, focusing instead on “[t]he sources on which Williams relied in defining
subaverage intelligence.” Ante, at 2278. But the way to apply a state court's decision is to apply what the state court said, and,
at 75 and higher, Brumfield's IQ scores exceeded the cutoff for significantly subaverage general intellectual functioning under
that decision.
Brumfield's evidence of alleged deficits in adaptive skills similarly failed to meet the requisite standards under Louisiana law.
Williams defined deficits in adaptive skills as “ ‘substantial functional limitations in three or more of the following areas of
major life activity:’ ” (1) self-care, (2) understanding and use of language, (3) learning, (4) mobility, (5) self-direction, and
(6) *2293 capacity for independent living. 831 So.2d, at 853 (quoting then La.Rev.Stat. Ann. 28:381(12) (repealed 2005)).
The only evidence Brumfield presented that is even potentially relevant to these factors was evidence of his poor reading skills
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
16
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
and behavioral problems in school. But, once again, Dr. Bolter's report confirmed that he had “a normal capacity to learn and
acquire information when given the opportunity for repetition” and that Brumfield's behavioral problems were attributable to
“a conduct disorder that ... progressed into an antisocial personality disorder.” Record 276. The majority places special weight
on Brumfield's placement in “special education” classes, ante, at 2275, 2279 – 2280, n. 7, 2280, 2281, but the record explains
that he was placed in behavioral disorder classes not because he had a low capacity to learn, but because he had a high capacity
to make trouble, Record 3846–3847. 11 The state court could reasonably have found that Brumfield had not provided evidence
of “substantial functional limitations” in any of these categories, let alone the three required by state law.
Absent objective evidence of either significantly subaverage intellectual functioning or deficits in adaptive behavior, Brumfield
was not entitled to an evidentiary hearing under Williams. The majority's analysis is erroneous: It takes a meritless state-law
claim, recasts it as two factual determinations, and then awards relief, despite ample evidence in the record to support each of
the state court's actual factual determinations.
C
The majority engages in such maneuvering because Brumfield argued only that the state court based its decision to deny his
Atkins claim on an unreasonable determination of the facts, § 2254(d)(2), not an unreasonable application of clearly established
federal law as determined by this Court, § 2254(d)(1). Brumfield, for his part, presented his claim in this way to avoid AEDPA's
additional restrictions on relief for alleged legal errors. As explained below, overcoming § 2254(d)(1)'s bar based on an alleged
legal error is particularly demanding. Brumfield's arguments, even if presented properly as legal ones, would not meet the bar.
Under § 2254(d)(1), a federal court may not award relief for a claim adjudicated on the merits in state court unless that
adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” “Clearly established Federal law for purposes of § 2254(d)
(1) includes only the holdings, as opposed to the dicta, of this Court's decisions.” White v. Woodall, 572 U.S. ––––, ––––,
134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014) (internal quotation marks and alteration omitted). A state court's decision is
therefore not “contrary to” our decisions unless its holding contradicts our holdings, or it “ ‘confronts a set of facts that are
materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.’ ”
Mitchell v. Esparza, 540 U.S. 12, 15–16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam ). A state court's decision is not “
‘an unreasonable application’ ” of our decisions if it merely “ ‘decline[s] to apply a specific legal rule that has not been *2294
squarely established by this Court.’ ” Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Instead,
the Court must evaluate the application of our holdings in the context of the rule's specificity: “The more general the rule,
the more leeway courts have in reaching outcomes in case-by-case determinations.” Ibid. (internal quotation mark omitted).
“[W]here the precise contours of [a] right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's
claims.” Woodall, supra, at ––––, 134 S.Ct., at 1705 (internal quotation marks omitted).
“If this standard is difficult to meet, that is because it was meant to be.” Richter, 562 U.S., at 102, 131 S.Ct. 770. “ ‘Federal
habeas review of state convictions ... disturbs the State's significant interest in repose for concluded litigation, denies society
the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal
judicial authority.’ ” Id., at 103, 131 S.Ct. 770. Although AEDPA “stops short of imposing a complete bar” on this type of
review, it does require “a state prisoner [to] show that the state court's ruling on the claim being presented in federal court was
so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id., at 102–103, 131 S.Ct. 770. Brumfield cannot meet this standard.
1
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
17
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
The state court's decision to deny Brumfield's Atkins claim was not contrary to any holding of this Court. The state court
recognized that Atkins precludes the execution of mentally retarded offenders and then concluded that Brumfield did not qualify
as a mentally retarded offender. Because this Court has never confronted a set of facts that are materially indistinguishable
from the facts in this case and arrived at a different result, the state court's decision was not “contrary to” clearly established
federal law as determined by this Court.
Nor is the decision of the state court to deny a hearing on the claim contrary to such clearly established law. In Atkins, this
Court held that the Eighth Amendment precludes the execution of mentally retarded offenders, but “le[ft] to the States the task
of developing appropriate ways to enforce the constitutional restrictions upon their execution of sentences.” 536 U.S., at 317,
122 S.Ct. 2242 (internal quotation mark and brackets omitted). This Court did not so much as mention an evidentiary hearing,
let alone hold that prisoners raising Atkins claims are entitled to one. To be sure, Atkins cited this Court's decision in Ford v.
Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), when it explained that it was leaving the enforcement of
the right to the States. See 536 U.S., at 316–317, 122 S.Ct. 2242. Justice Powell's controlling concurrence in Ford required a
court to afford a prisoner a hearing on the claim that he is insane and therefore ineligible to be executed after a prisoner made
a “substantial threshold showing of insanity.” 477 U.S., at 426, 106 S.Ct. 2595 (opinion concurring in part and concurring in
judgment). The citation in Atkins, however, not only was not to that portion of Ford, it was not even to Justice Powell's opinion
in Ford. Compare Atkins, supra, at 317, 122 S.Ct. 2242 (citing Ford, supra, at 405, 106 S.Ct. 2595 (majority opinion), 416–
417, 106 S.Ct. 2595 (opinion of Marshall, J.)), with Ford, supra, at 426, 106 S.Ct. 2595 (opinion of Powell, J.). Atkins thus
did not imply—let alone hold—that a prisoner is entitled to a hearing on an Atkins claim. There being no mention of a hearing,
the state court's decision to deny Brumfield such a hearing *2295 could not be “contrary to ... clearly established Federal
law.” § 2254(d)(1).
Even if Atkins did establish a right to an evidentiary hearing upon a threshold showing of mental retardation, the state court's
decision to deny Brumfield a hearing would not be contrary to that rule. After all, the state court took the position that Brumfield
would have been entitled to an evidentiary hearing if he had made a threshold showing of mental retardation; it simply concluded
that he had not made that showing. This Court has never confronted a set of materially indistinguishable facts and found the
threshold showing satisfied. Thus, as with its rejection of the Atkins claim itself, the state court's decision to deny Brumfield an
Atkins hearing was not contrary to clearly established federal law as determined by this Court.
2
The state court's decision here likewise was not an unreasonable application of Atkins. The Atkins Court did not clearly define
the category “of mentally retarded offenders about whom there is a national consensus.” 536 U.S., at 317, 122 S.Ct. 2242.
It offered guidance in the form of several clinical definitions of mental retardation as “ ‘subaverage intellectual functioning’
” accompanied by “significant limitations in adaptive skills such as communication, self-care, and self-direction that became
manifest before age 18.” Id., at 318, 122 S.Ct. 2242. It gave conflicting indications of the IQ score necessary for “subaverage
intellectual functioning,” defining mild mental retardation as the term used to describe “people with an IQ level of 50–55 to
approximately 70,” id., at 308, n. 3, 122 S.Ct. 2242; and citing one source that reports 70 or less as the statistical criterion for
mental retardation, id., at 309, n. 5, 122 S.Ct. 2242; see 2 Kaplan & Sadock's Comprehensive Textbook of Psychiatry 2589 (B.
Sadock & V. Sadock eds., 7th ed. 2000); but commenting that “an IQ between 70 and 75 or lower ... is typically considered
the cutoff IQ score for the intellectual function prong of the mental retardation definition,” 536 U.S., at 309, n. 5, 122 S.Ct.
2242. It offered no greater specificity with respect to “significant limitations in adaptive skills,” though it remarked that, “by
definition,” mentally retarded offenders “have diminished capacities to understand and process information, to communicate,
to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the
reactions of others.” Id., at 318, 122 S.Ct. 2242.
The state court here reasonably applied the general rule announced in Atkins when it rejected Brumfield's claim. Brumfield
achieved a 75 on the IQ test administered to him by Dr. Bolter, 5 points above the score identified by Atkins as the upper
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
18
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
end of “ ‘[m]ild’ ” mental retardation, id., at 308, n. 3, 122 S.Ct. 2242 and by clinical definitions as the criterion for mental
retardation. He also scored somewhat higher on the IQ tests administered to him by Dr. Jordan. In addition, he demonstrated
no impairment in adaptive skills. To the contrary, his test results “indicate[d] that his problem solving, judgment and reasoning
skills are sufficient to meet the demands of everyday adulthood and he is not showing any decrement in the types of problems
one would assume to see if they were suffering from an underlying organic basis or mental illness.” Record 275. Based on this
record, the state court reasonably concluded that Brumfield had not come forward with evidence that he fell within the category
of mentally retarded offenders about whom a national consensus against execution had developed.
*2296 For the same reasons, even if one were to mischaracterize Atkins as clearly establishing a right to an evidentiary hearing
upon a substantial threshold showing of mental retardation, the state court did not unreasonably apply that rule. Atkins did not
define the showing necessary, and the state court reasonably concluded that, on this record, Brumfield had not met it. 12
D
In sum, § 2254(d) bars Brumfield's Atkins claim. The facts upon which the state court rejected his claim are amply supported
by the record and thus not unreasonable. In concluding otherwise, the majority conflates questions of fact with questions about
the application of law to fact. That conflation may help it get around the inconveniences of “clearly established Federal law
as determined by th[is Court],” § 2254(d)(1), but it does violence to the statute and to our ordinary understanding of “facts.”
Indeed, we have summarily reversed lower courts for making that same error. See, e.g., Lopez v. Smith, 574 U.S. ––––, ––––,
135 S.Ct. 1, 5, 190 L.Ed.2d 1 (2014) (per curiam ) (“Although the Ninth Circuit claimed its disagreement with the state court
was factual in nature, in reality its grant of relief was based on a legal conclusion about the adequacy of the notice provided”).
We should hold ourselves to the same standard.
IV
The majority's willingness to afford relief on Brumfield's first ground of alleged error in the state court's dismissal of his Atkins
claim obviates its need to resolve his second, which focuses on the state court's denial of funding to develop that claim. Because
I would conclude that AEDPA bars relief on the first ground, I must also address the second. AEDPA's standards make short
work of that ground as well.
The state court's denial of funding to Brumfield was neither contrary to, nor an unreasonable application of, clearly established
federal law as determined by this Court. No precedent of this Court addresses whether and under what circumstances a state
prisoner must be afforded funds to develop an Atkins claim. Atkins left “to the States the task of developing appropriate ways
to enforce the constitutional restriction upon their execution of sentences.” 536 U.S., at 317, 122 S.Ct. 2242 (internal quotation
marks and brackets omitted). None of our decisions since Atkins have even purported to address constitutional requirements
for funding of these claims.
Brumfield believes that the decision was contrary to, and involved an unreasonable application of Ake v. Oklahoma, 470 U.S.
68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335, but neither
of those decisions even involved protections for mentally retarded offenders. Instead, both decisions addressed protections for
prisoners asserting insanity—Ake in the context of insanity as a defense to a crime, 470 U.S., at 70, 77, 105 S.Ct. 1087 and
*2297 Ford in the context of insanity as a limitation on the State's power to execute a prisoner, 477 U.S., at 418, 106 S.Ct.
2595 (Powell, J., concurring in part and concurring in judgment). Neither involved the question whether a prisoner is entitled
to funds to develop an insanity claim before he has made a substantial threshold showing of that claim. Only Ake addressed the
question of funds at all, and it held that an indigent defendant has a right of “access” to a competent psychiatrist to assist in
the preparation of his insanity defense, not that an “indigent defendant has a constitutional right to choose a psychiatrist of his
personal liking or to receive funds to hire his own.” 470 U.S., at 83, 105 S.Ct. 1087.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
19
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
The state court fully complied with this Court's decisions when it declined to award Brumfield funds. Brumfield did not meet
his burden to make a substantial threshold showing of mental retardation. No decision of this Court requires a State to afford
a defendant funds to do so.
***
Over 20 years ago, Brumfield deprived the people of Baton Rouge of one of their police officers and six children of their mother.
A jury of his peers found Brumfield guilty of the crime and sentenced him to death. The Louisiana courts afforded him full
appellate and collateral-review proceedings.
Today, the majority tosses those proceedings aside, concluding that the state court based its decision to deny Brumfield's Atkins
claim on an “unreasonable determination of the facts,” even as it concedes that the record includes evidence supporting that
court's factual findings. Under AEDPA, that concession should bar relief for Brumfield. In concluding otherwise, the majority
distorts federal law and intrudes upon Louisiana's sovereign right to enforce its criminal laws and its courts' judgments. Such
willfulness is disheartening.
What is perhaps more disheartening than the majority's disregard for both AEDPA and our precedents is its disregard for the
human cost of its decision. It spares not a thought for the 20 years of judicial proceedings that its decision so casually extends.
It spares no more than a sentence to describe the crime for which a Louisiana jury sentenced Brumfield to death. It barely
spares the two words necessary to identify Brumfield's victim, Betty Smothers, by name. She and her family—not to mention
our legal system—deserve better.
I respectfully dissent.
APPENDIX *2298
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
20
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
W. Dunn & D. Yaeger, Running for My Life: My Journey in the Game of Football and Beyond (2008).
Justice ALITO, with whom THE CHIEF JUSTICE joins, dissenting.
I join all but Part I–C of Justice THOMAS' dissent. The story recounted in that Part is inspiring and will serve a very beneficial
purpose if widely read, but I do not want to suggest that it is essential to the legal analysis in this case.
All Citations
135 S.Ct. 2269, 192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268, 2015 Daily Journal D.A.R. 6767, 25 Fla.
L. Weekly Fed. S 355
Footnotes
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience
*
1
2
3
of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
While this Court formerly employed the phrase “mentally retarded,” we now “us[e] the term ‘intellectual disability’ to describe the
identical phenomenon.” Hall v. Florida, 572 U.S. ––––, ––––, 134 S.Ct. 1986, 1990, 188 L.Ed.2d 1007 (2014).
Although Louisiana subsequently adopted a statute governing the adjudication of Atkins claims, see La.Code Crim. Proc. Ann., Art.
905.5.1 (West Cum. Supp. 2015), the parties agree that the procedures set forth in Williams governed this case. See Brief for Petitioner
26, n. 7; Brief for Respondent 13, n. 6; see also State v. Dunn, 2007–0878 (La.1/25/08), 974 So.2d 658, 662 (holding that this statute
does not “establis[h] a procedure to be used for Atkins hearings conducted post-trial and/or post-sentencing”).
The dissent accuses us of “recasting legal determinations as factual ones.” Post, at 2290 (opinion of THOMAS, J.) (emphasis deleted)
(hereinafter the dissent). But we subject these determinations to review under § 2254(d)(2) instead of § 2254(d)(1) because we are
concerned here not with the adequacy of the procedures and standards the state court applied in rejecting Brumfield's Atkins claim,
but with the underlying factual conclusions the court reached when it determined that the record evidence was inconsistent with
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
21
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
4
5
6
7
8
1
2
3
4
5
6
intellectual disability. See Maggio v. Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983) (per curiam ) (reviewing
under the predecessor to § 2254(d)(2) the “factual conclusions” underlying a state court's conclusion that a criminal defendant had
raised no doubt as to his competency to stand trial). We look to Louisiana case law only because it provides the framework in
which these factual determinations were made, and makes clear that the state court's decision rejecting Brumfield's Atkins claim
was premised on those determinations. And we apply § 2254(d)(2) at the behest of the State itself, which invokes that provision
(and § 2254(e)(1)'s similarly fact-focused standard) in contending that AEDPA bars Brumfield's Atkins claim, and characterizes the
determinations we review here as “highly factual.” Brief for Respondent 25.
The dissent insists that we have ignored language in Williams establishing that “the requisite IQ could range ‘from 66 to 74.’ ” Post,
at 2292 (quoting Williams, 831 So.2d, at 854, n. 26). But the dissent wrenches the quoted language out of context. The Williams Court
actually said: “One SEM is plus or minus a specified number of IQ points. Thus, an IQ of 70 could range from 66 to 74 assuming
an SEM of 4.” 831 So.2d, at 854, n. 26. Williams did not thereby hold that an SEM of 4, and a resultant range of 66 to 74, must be
used; it was simply using this example to illustrate the concept of SEM.
There is some question whether Dr. Jordan's report, which was introduced in federal habeas proceedings, was ever entered into the
state-court record. See 854 F.Supp.2d 366, 380, n. 13 (M.D.La.2012) (accepting counsel's representation that the report was not in the
state-court record); but see Tr. of Oral Arg. 50 (State's counsel asserting that it was). We see no need to resolve this dispute, though
we note that the report is not currently contained in the state-court record lodged with the District Court.
The other two standards set forth in Williams were: the AAMR criteria, which require “ ‘limitations in two or more of the following
applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety,
functional academics, leisure, and work,’ ” 831 So.2d, at 852, n. 22; and the DSM–IV criteria, which similarly require “ ‘significant
limitations' ” in “ ‘at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of
community resources, self-direction, functional academic skills, work, leisure, health, and safety,’ ” id., at 853, n. 25.
While the dissent contends that the record shows Brumfield's placement in special education classes was simply due to his
misbehavior, post, at 2293, Dr. Guin testified that Brumfield's behavioral problems were in part a function of a learning disability,
see App. 86a.
Section 2254(e)(1) provides: “In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”
The videotaped confession can be found at http://www. supremecourt.gov/media/media.aspx.
Although not introduced at trial, it is worth noting that the night of Corporal Smothers' murder was apparently not her first interaction
with Brumfield. Six years earlier, she had caught him stealing and had given him a chance to turn his life around, a chance he
unfortunately did not take. See W. Dunn & D. Yaeger, Running for My Life: My Journey in the Game of Football and Beyond 12
(2008). As Corporal Smothers' eldest son recounted, “[Brumfield] told me a story that in 1987, my mother, working security at a
store, caught him stealing and made him put back whatever he took.... Brumfield said my mom could have made an example of him
that day, but she elected not to. I thought to myself, that was Mom—always giving people second chances to do right.” Ibid.
Like Brumfield, Warrick's father was not a part of his life. Id., at 51. But, unlike Brumfield, Warrick did not use the absence of a
father figure as a justification for murder. Ibid. Instead, he recognized that his mother had been “the family patriarch” when she was
alive, ibid. and that he had a responsibility to take on that role after her death, id., at 37.
In a letter to Brumfield, one of Corporal Smothers' daughters, Summer, later wrote: “Can you imagine life at 14 without your mother,
no father to step up and take responsibility for his seed? Not knowing where your next meal will come from, or where you are going
to lay your head at night, or even who's going to sacrifice their life to raise six children because of someone's selfish acts? Do you
know what this can [do to] a 14–year–old's physical, emotional, and mental state of mind?” Id., at 13 (italics deleted).
Although this question presented in his petition is framed as one of law—“[w]hether a state court that considers the evidence presented
at a petitioner's penalty phase proceeding as determinative of the petitioner's claim of mental retardation under Atkins v. Virginia,
536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), has based its decision on an unreasonable determination of the facts under
28 U.S.C. § 2254(d)(2),” Pet. for Cert. i—Brumfield reframed his question at oral argument as purely one based on the factual
determinations made in his case, Tr. of Oral Arg. 27–28. He properly conceded that a court does not necessarily make its decision
based on an unreasonable determination of the facts when it rejects an Atkins claim based on a record developed before Atkins. Tr.
of Oral Arg. 7–8.
The majority attempts to defend its recharacterization of the inquiry on the ground that the State invoked § 2254(d)(2). The State
invoked that provision because that is the basis upon which Brumfield sought federal collateral relief. But, Brumfield is not entitled to
that relief unless he can show that the state court based its decision to deny his Atkins claim on unreasonable factual determinations.
Rather than address those determinations, the majority addresses something else entirely.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
22
Brumfield v. Cain, 135 S.Ct. 2269 (2015)
192 L.Ed.2d 356, 83 USLW 4490, 15 Cal. Daily Op. Serv. 6268...
7
8
9
10
11
12
To be sure, the question whether someone is mentally retarded is one of fact. But that is not the question at issue in an Atkins claim.
Atkins held that a category of mentally retarded offenders could not be executed consistent with the Eighth Amendment because a
national consensus had developed against such executions. It acknowledged that there was disagreement about how to define mentally
retarded offenders and clarified that “[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range
of mentally retarded offenders about whom there is a national consensus.” 536 U.S., at 317, 122 S.Ct. 2242. Thus, when a prisoner
brings an Atkins claim, he bears the burden to establish not just the “fact” of his mental retardation, but also that he is sufficiently
impaired to fall within the category of persons identified in Atkins as legally beyond a State's power to execute.
It is unclear whether Williams even continued to supply the governing state law at the time the state court acted, for the Louisiana
Legislature had established a procedure for adjudicating claims of mental retardation in capital cases three months before Brumfield's
hearing. See 2003 La. Acts p. 698 (enacting La.Code Crim. Proc. Ann., Art. 905.5.1 (West Supp.2015)). Because that law did not
specifically address the circumstances under which capital defendants would be entitled to a hearing on such claims, however, I
assume for the sake of argument that Williams supplies the applicable state law.
The majority's persistent characterization of this standard as a “reasonable doubt” standard is quite misleading. Ante, at 2276 – 2277,
2281, 2282 – 2283.
As the majority points out, the Court in Williams was “using this example to illustrate the concept of [the standard error of
measurement],” ante at 2278, n. 4, but it was illustrating the standard error of measurement as it related to the Louisiana law defining
significantly subaverage general intellectual functioning as “ ‘more than two standard deviations below the mean for the test of
intellectual functioning,’ ” Williams, supra, at 853, and n. 26 (quoting then La.Rev.Stat. Ann. 28:381(42) (repealed 2005)).
The majority places great reliance on the testimony of Dr. Guin, who was not a medical doctor, that Brumfield's “out of control
behavior” in the classroom, Record 3879, was a function in part of a learning disability, ante, at 2281. But, Dr. Guin was not qualified
to make that diagnosis, and she acknowledged that the school had diagnosed him only with a behavioral disorder. Record 3882.
It is worth reiterating that the majority's analysis of state law would afford no basis for relief under § 2254(d)(1), even if Brumfield
had requested relief under that provision. Section 2254(d)(1) serves as a basis for relief only when a state court reached a decision
that involved an “unreasonable application of ... clearly established Federal law, as determined by [this ] Court.” (Emphasis added.)
And even if Brumfield could show a violation of state law, which he cannot for the reasons I discussed above, such a violation would
“provide no basis for federal habeas relief.” Estelle v. McGuire, 502 U.S. 62, 68, n. 2, 112 S.Ct. 475, 116 L.Ed.2d 385. (1991).
End of Document
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
23
(Slip Opinion)
OCTOBER TERM, 2014
1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CITY OF LOS ANGELES, CALIFORNIA v. PATEL ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 13–1175. Argued March 3, 2015—Decided June 22, 2015
Petitioner, the city of Los Angeles (City), requires hotel operators to
record and keep specific information about their guests on the premises for a 90-day period. Los Angeles Municipal Code §41.49. These
records “shall be made available to any officer of the Los Angeles Police Department for inspection . . . at a time and in a manner that
minimizes any interference with the operation of the business,”
§41.49(3)(a), and a hotel operator’s failure to make the records available is a criminal misdemeanor, §11.00(m). Respondents, a group of
motel operators and a lodging association, brought a facial challenge
to §41.49(3)(a) on Fourth Amendment grounds. The District Court
entered judgment for the City, finding that respondents lacked a reasonable expectation of privacy in their records. The Ninth Circuit
subsequently reversed, determining that inspections under
§41.49(3)(a) are Fourth Amendment searches and that such searches
are unreasonable under the Fourth Amendment because hotel owners are subjected to punishment for failure to turn over their records
without first being afforded the opportunity for precompliance review.
Held:
1. Facial challenges under the Fourth Amendment are not categorically barred or especially disfavored. Pp. 4–8.
(a) Facial challenges to statutes—as opposed to challenges to
particular applications of statutes—have been permitted to proceed
under a diverse array of constitutional provisions. See, e.g., Sorrell v.
IMS Health Inc., 564 U. S. ___ (First Amendment); District of Columbia v. Heller, 554 U. S. 570 (Second Amendment). The Fourth
Amendment is no exception. Sibron v. New York, 392 U. S. 40, distinguished. This Court has entertained facial challenges to statutes
2
LOS ANGELES v. PATEL
Syllabus
authorizing warrantless searches, declaring them, on several occasions, facially invalid, see, e.g., Chandler v. Miller, 520 U. S. 305,
308–309. Pp. 4–7.
(b) Petitioner contends that facial challenges to statutes authorizing warrantless searches must fail because they will never be unconstitutional in all applications, but this Court’s precedents demonstrate that such challenges can be brought, and can succeed. Under
the proper facial-challenge analysis, only applications of a statute in
which the statute actually authorizes or prohibits conduct are considered. See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833. When addressing a facial challenge to a statute authorizing warrantless searches, the proper focus is on searches that the law
actually authorizes and not those that could proceed irrespective of
whether they are authorized by the statute, e.g., where exigent circumstances, a warrant, or consent to search exists. Pp. 7–8.
2. Section 41.49(3)(a) is facially unconstitutional because it fails to
provide hotel operators with an opportunity for precompliance review. Pp. 9–17.
(a) “ ‘[S]earches conducted outside the judicial process . . . are
per se unreasonable under the Fourth Amendment—subject only to a
few . . . exceptions.’ ” Arizona v. Gant, 556 U. S. 332, 338. One exception is for administrative searches. See Camara v. Municipal
Court of City and County of San Francisco, 387 U. S. 523, 534. To be
constitutional, the subject of an administrative search must, among
other things, be afforded an opportunity to obtain precompliance review before a neutral decisionmaker. See See v. Seattle, 387 U. S.
541, 545. Assuming the administrative search exception otherwise
applies here, §41.49 is facially invalid because it fails to afford hotel
operators any opportunity for precompliance review. To be clear, a
hotel owner must only be afforded an opportunity for precompliance
review; actual review need occur only when a hotel operator objects to
turning over the records. This opportunity can be provided without
imposing onerous burdens on law enforcement. For instance, officers
in the field can issue administrative subpoenas without probable
cause that a regulation is being infringed. This narrow holding does
not call into question those parts of §41.49 requiring hotel operators
to keep records nor does it prevent police from obtaining access to
those records where a hotel operator consents to the search, where
the officer has a proper administrative warrant, or where some other
exception to the warrant requirement applies. Pp. 9–13.
(b) Petitioner’s argument that the ordinance is facially valid under the more relaxed standard for closely regulated industries is rejected. See Marshall v. Barlow’s, Inc., 436 U. S. 307, 313. This Court
has only recognized four such industries, and nothing inherent in the
Cite as: 576 U. S. ____ (2015)
3
Syllabus
operation of hotels poses a comparable clear and significant risk to
the public welfare. Additionally, because the majority of regulations
applicable to hotels apply to many businesses, to classify hotels as
closely regulated would permit what has always been a narrow exception to swallow the rule. But even if hotels were closely regulated,
§41.49 would still contravene the Fourth Amendment as it fails to
satisfy the additional criteria that must be met for searches of closely
regulated industries to be reasonable. See New York v. Burger, 482
U. S. 691, 702–703. Pp. 13–17.
738 F. 3d 1058, affirmed.
SOTOMAYOR, J., delivered the opinion of the Court, in which KENNEGINSBURG, BREYER, and KAGAN, JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS, J., joined.
ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined.
DY,
Cite as: 576 U. S. ____ (2015)
1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1175
_________________
CITY OF LOS ANGELES, CALIFORNIA, PETITIONER
v. NARANJIBHAI PATEL, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 22, 2015] JUSTICE SOTOMAYOR delivered the opinion of the Court.
Respondents brought a Fourth Amendment challenge to
a provision of the Los Angeles Municipal Code that compels “[e]very operator of a hotel to keep a record” containing specified information concerning guests and to make
this record “available to any officer of the Los Angeles
Police Department for inspection” on demand. Los Angeles Municipal Code §§41.49(2), (3)(a), (4) (2015). The
questions presented are whether facial challenges to statutes can be brought under the Fourth Amendment and, if
so, whether this provision of the Los Angeles Municipal
Code is facially invalid. We hold facial challenges can be
brought under the Fourth Amendment. We further hold
that the provision of the Los Angeles Municipal Code that
requires hotel operators to make their registries available
to the police on demand is facially unconstitutional because it penalizes them for declining to turn over their
records without affording them any opportunity for precompliance review.
2
LOS ANGELES v. PATEL
Opinion of the Court
I
A
Los Angeles Municipal Code (LAMC) §41.49 requires
hotel operators to record information about their guests,
including: the guest’s name and address; the number of
people in each guest’s party; the make, model, and license
plate number of any guest’s vehicle parked on hotel property; the guest’s date and time of arrival and scheduled
departure date; the room number assigned to the guest;
the rate charged and amount collected for the room; and
the method of payment. §41.49(2). Guests without reservations, those who pay for their rooms with cash, and any
guests who rent a room for less than 12 hours must present photographic identification at the time of check-in,
and hotel operators are required to record the number and
expiration date of that document. §41.49(4). For those
guests who check in using an electronic kiosk, the hotel’s
records must also contain the guest’s credit card information. §41.49(2)(b). This information can be maintained
in either electronic or paper form, but it must be “kept on
the hotel premises in the guest reception or guest check-in
area or in an office adjacent” thereto for a period of 90
days. §41.49(3)(a).
Section 41.49(3)(a)—the only provision at issue here—
states, in pertinent part, that hotel guest records “shall be
made available to any officer of the Los Angeles Police
Department for inspection,” provided that “[w]henever
possible, the inspection shall be conducted at a time and in
a manner that minimizes any interference with the operation of the business.” A hotel operator’s failure to make
his or her guest records available for police inspection is a
misdemeanor punishable by up to six months in jail and a
$1,000 fine. §11.00(m) (general provision applicable to
entire LAMC).
Cite as: 576 U. S. ____ (2015)
3
Opinion of the Court B
In 2003, respondents, a group of motel operators along
with a lodging association, sued the city of Los Angeles
(City or petitioner) in three consolidated cases challenging
the constitutionality of §41.49(3)(a). They sought declaratory and injunctive relief. The parties “agree[d] that the
sole issue in the . . . action [would be] a facial constitutional challenge” to §41.49(3)(a) under the Fourth Amendment. App. 195. They further stipulated that respondents
have been subjected to mandatory record inspections
under the ordinance without consent or a warrant. Id., at
194–195.
Following a bench trial, the District Court entered
judgment in favor of the City, holding that respondents’
facial challenge failed because they lacked a reasonable
expectation of privacy in the records subject to inspection.
A divided panel of the Ninth Circuit affirmed on the same
grounds. 686 F. 3d 1085 (2012). On rehearing en banc,
however, the Court of Appeals reversed. 738 F. 3d 1058,
1065 (2013).
The en banc court first determined that a police officer’s
nonconsensual inspection of hotel records under §41.49 is
a Fourth Amendment “search” because “[t]he business
records covered by §41.49 are the hotel’s private property”
and the hotel therefore “has the right to exclude others
from prying into the[ir] contents.” Id., at 1061. Next, the
court assessed “whether the searches authorized by §41.49
are reasonable.” Id., at 1063. Relying on Donovan v. Lone
Steer, Inc., 464 U. S. 408 (1984), and See v. Seattle, 387
U. S. 541 (1967), the court held that §41.49 is facially
unconstitutional “as it authorizes inspections” of hotel
records “without affording an opportunity to ‘obtain judicial review of the reasonableness of the demand prior to
suffering penalties for refusing to comply.’ ” 738 F. 3d, at
1065 (quoting See, 387 U. S., at 545).
Two dissenting opinions were filed. The first dissent
4
LOS ANGELES v. PATEL
Opinion of the Court
argued that facial relief should rarely be available for
Fourth Amendment challenges, and was inappropriate
here because the ordinance would be constitutional in
those circumstances where police officers demand access
to hotel records with a warrant in hand or exigent circumstances justify the search. 738 F. 3d, at 1065–1070 (opinion of Tallman, J.). The second dissent conceded that
inspections under §41.49 constitute Fourth Amendment
searches, but faulted the majority for assessing the reasonableness of these searches without accounting for the
weakness of the hotel operators’ privacy interest in the
content of their guest registries. Id., at 1070–1074 (opinion of Clifton, J.).
We granted certiorari, 574 U. S. ___ (2014), and now
affirm.
II
We first clarify that facial challenges under the Fourth
Amendment are not categorically barred or especially
disfavored.
A
A facial challenge is an attack on a statute itself as
opposed to a particular application. While such challenges
are “the most difficult . . . to mount successfully,” United
States v. Salerno, 481 U. S. 739, 745 (1987), the Court has
have never held that these claims cannot be brought
under any otherwise enforceable provision of the Constitution. Cf. Fallon, Fact and Fiction About Facial Challenges, 99 Cal. L. Rev. 915, 918 (2011) (pointing to several
Terms in which “the Court adjudicated more facial challenges on the merits than it did as-applied challenges”).
Instead, the Court has allowed such challenges to proceed
under a diverse array of constitutional provisions. See,
e.g., Sorrell v. IMS Health Inc., 564 U. S. ___ (2011) (First
Amendment); District of Columbia v. Heller, 554 U. S. 570
Cite as: 576 U. S. ____ (2015)
5
Opinion of the Court
(2008) (Second Amendment); Chicago v. Morales, 527 U. S.
41 (1999) (Due Process Clause of the Fourteenth Amendment); Kraft Gen. Foods, Inc. v. Iowa Dept. of Revenue and
Finance, 505 U. S. 71 (1992) (Foreign Commerce Clause).
Fourth Amendment challenges to statutes authorizing
warrantless searches are no exception. Any claim to the
contrary reflects a misunderstanding of our decision in
Sibron v. New York, 392 U. S. 40 (1968). In Sibron, two
criminal defendants challenged the constitutionality of a
statute authorizing police to, among other things, “ ‘stop
any person abroad in a public place whom [they] reasonably suspec[t] is committing, has committed or is about to
commit a felony.” Id., at 43 (quoting then N. Y. Code
Crim. Proc. §180–a). The Court held that the search of
one of the defendants under the statute violated the
Fourth Amendment, 392 U. S., at 59, 62, but refused to
opine more broadly on the statute’s validity, stating that
“[t]he constitutional validity of a warrantless search is
pre-eminently the sort of question which can only be decided in the concrete factual context of the individual
case.” Id., at 59.
This statement from Sibron—which on its face might
suggest an intent to foreclose all facial challenges to statutes authorizing warrantless searches—must be understood in the broader context of that case. In the same
section of the opinion, the Court emphasized that the
“operative categories” of the New York law at issue were
“susceptible of a wide variety of interpretations,” id., at 60,
and that “[the law] was passed too recently for the State’s
highest court to have ruled upon many of the questions
involving potential intersections with federal constitutional
guarantees,” id., at 60, n. 20. Sibron thus stands for the
simple proposition that claims for facial relief under the
Fourth Amendment are unlikely to succeed when there is
substantial ambiguity as to what conduct a statute authorizes: Where a statute consists of “extraordinarily
6
LOS ANGELES v. PATEL
Opinion of the Court
elastic categories,” it may be “impossible to tell” whether
and to what extent it deviates from the requirements of
the Fourth Amendment. Id., at 59, 61, n. 20.
This reading of Sibron is confirmed by subsequent precedents. Since Sibron, the Court has entertained facial
challenges under the Fourth Amendment to statutes
authorizing warrantless searches. See, e.g., Vernonia
School District 47J v. Acton, 515 U. S. 646, 648 (1995)
(“We granted certiorari to decide whether” petitioner’s
student athlete drug testing policy “violates the Fourth
and Fourteenth Amendments to the United States Constitution”); Skinner v. Railway Labor Executives’ Assn., 489
U. S. 602, 633, n. 10 (1989) (“[R]espondents have challenged the administrative scheme on its face. We deal
therefore with whether the [drug] tests contemplated by
the regulation can ever be conducted”); cf. Illinois v. Krull,
480 U. S. 340, 354 (1987) (“[A] person subject to a statute
authorizing searches without a warrant or probable cause
may bring an action seeking a declaration that the statute
is unconstitutional and an injunction barring its implementation”). Perhaps more importantly, the Court has on
numerous occasions declared statutes facially invalid
under the Fourth Amendment. For instance, in Chandler
v. Miller, 520 U. S. 305, 308–309 (1997), the Court struck
down a Georgia statute requiring candidates for certain
state offices to take and pass a drug test, concluding that
this “requirement . . . [did] not fit within the closely
guarded category of constitutionally permissible suspicionless searches.” Similar examples abound. See, e.g., Ferguson v. Charleston, 532 U. S. 67, 86 (2001) (holding that
a hospital policy authorizing “nonconsensual, warrantless,
and suspicionless searches” contravened the Fourth
Amendment); Payton v. New York, 445 U. S. 573, 574, 576
(1980) (holding that a New York statute “authoriz[ing]
police officers to enter a private residence without a warrant and with force, if necessary, to make a routine felony
Cite as: 576 U. S. ____ (2015)
7
Opinion of the Court
arrest” was “not consistent with the Fourth Amendment”);
Torres v. Puerto Rico, 442 U. S. 465, 466, 471 (1979) (holding that a Puerto Rico statute authorizing “police to search
the luggage of any person arriving in Puerto Rico from the
United States” was unconstitutional because it failed to
require either probable cause or a warrant).
B
Petitioner principally contends that facial challenges to
statutes authorizing warrantless searches must fail because such searches will never be unconstitutional in all
applications. Cf. Salerno, 481 U. S., at 745 (to obtain
facial relief the party seeking it “must establish that no
set of circumstances exists under which the [statute]
would be valid”). In particular, the City points to situations where police are responding to an emergency, where
the subject of the search consents to the intrusion, and
where police are acting under a court-ordered warrant.
See Brief for Petitioner 19–20. While petitioner frames
this argument as an objection to respondents’ challenge in
this case, its logic would preclude facial relief in every
Fourth Amendment challenge to a statute authorizing
warrantless searches. For this reason alone, the City’s
argument must fail: The Court’s precedents demonstrate
not only that facial challenges to statutes authorizing
warrantless searches can be brought, but also that they
can succeed. See Part II–A, supra.
Moreover, the City’s argument misunderstands how
courts analyze facial challenges. Under the most exacting
standard the Court has prescribed for facial challenges, a
plaintiff must establish that a “law is unconstitutional in
all of its applications.” Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 449 (2008).
But when assessing whether a statute meets this standard, the Court has considered only applications of the
8
LOS ANGELES v. PATEL
Opinion of the Court
statute in which it actually authorizes or prohibits conduct. For instance, in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court struck
down a provision of Pennsylvania’s abortion law that
required a woman to notify her husband before obtaining
an abortion. Those defending the statute argued that
facial relief was inappropriate because most women voluntarily notify their husbands about a planned abortion and
for them the law would not impose an undue burden. The
Court rejected this argument, explaining: The
“[l]egislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. . . .
The proper focus of the constitutional inquiry is the group
for whom the law is a restriction, not the group for whom
the law is irrelevant.” Id., at 894.
Similarly, when addressing a facial challenge to a statute authorizing warrantless searches, the proper focus of
the constitutional inquiry is searches that the law actually
authorizes, not those for which it is irrelevant. If exigency
or a warrant justifies an officer’s search, the subject of the
search must permit it to proceed irrespective of whether it
is authorized by statute. Statutes authorizing warrantless
searches also do no work where the subject of a search has
consented. Accordingly, the constitutional “applications”
that petitioner claims prevent facial relief here are irrelevant to our analysis because they do not involve actual
applications of the statute.1
——————
1 Relatedly, the United States claims that a statute authorizing warrantless searches may still have independent force if it imposes a
penalty for failing to cooperate in a search conducted under a warrant
or in an exigency. See Brief for United States as Amicus Curiae 19.
This argument gets things backwards. An otherwise facially unconstitutional statute cannot be saved from invalidation based solely on the
existence of a penalty provision that applies when searches are not
actually authorized by the statute. This argument is especially unconvincing where, as here, an independent obstruction of justice statute
imposes a penalty for “willfully, resist[ing], delay[ing], or obstruct[ing]
Cite as: 576 U. S. ____ (2015)
9
Opinion of the Court
III
Turning to the merits of the particular claim before us,
we hold that §41.49(3)(a) is facially unconstitutional because it fails to provide hotel operators with an opportunity for precompliance review.
A
The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” It
further provides that “no Warrants shall issue, but upon
probable cause.” Based on this constitutional text, the
Court has repeatedly held that “ ‘searches conducted outside the judicial process, without prior approval by [a]
judge or [a] magistrate [judge], are per se unreasonable . . .
subject only to a few specifically established and welldelineated exceptions.’ ” Arizona v. Gant, 556 U. S. 332,
338 (2009) (quoting Katz v. United States, 389 U. S. 347,
357 (1967)). This rule “applies to commercial premises as
well as to homes.” Marshall v. Barlow’s, Inc., 436 U. S.
307, 312 (1978).
Search regimes where no warrant is ever required may
be reasonable where “ ‘special needs . . . make the warrant
and probable-cause requirement impracticable,’ ” Skinner,
489 U. S., at 619 (quoting Griffin v. Wisconsin, 483 U. S.
868, 873 (1987) (some internal quotation marks omitted)),
and where the “primary purpose” of the searches is
“[d]istinguishable from the general interest in crime control,” Indianapolis v. Edmond, 531 U. S. 32, 44 (2000).
Here, we assume that the searches authorized by §41.49
serve a “special need” other than conducting criminal
investigations: They ensure compliance with the record—————— any public officer . . . in the discharge or attempt to discharge any duty
of his or her office of employment.” Cal. Penal Code Ann. §148(a)(1)
(West 2014).
10
LOS ANGELES v. PATEL
Opinion of the Court
keeping requirement, which in turn deters criminals from
operating on the hotels’ premises.2 The Court has referred
to this kind of search as an “administrative searc[h].”
Camara v. Municipal Court of City and County of San
Francisco, 387 U. S. 523, 534 (1967). Thus, we consider
whether §41.49 falls within the administrative search
exception to the warrant requirement.
The Court has held that absent consent, exigent circumstances, or the like, in order for an administrative search
to be constitutional, the subject of the search must be
afforded an opportunity to obtain precompliance review
before a neutral decisionmaker. See See, 387 U. S., at 545;
Lone Steer, 464 U. S., at 415 (noting that an administrative search may proceed with only a subpoena where the
subpoenaed party is sufficiently protected by the opportunity to “question the reasonableness of the subpoena,
before suffering any penalties for refusing to comply with
it, by raising objections in an action in district court”).
And, we see no reason why this minimal requirement is
inapplicable here. While the Court has never attempted to
prescribe the exact form an opportunity for precompliance
review must take, the City does not even attempt to argue
that §41.49(3)(a) affords hotel operators any opportunity
whatsoever. Section 41.49(3)(a) is, therefore, facially
invalid.
A hotel owner who refuses to give an officer access to his
or her registry can be arrested on the spot. The Court has
held that business owners cannot reasonably be put to this
kind of choice. Camara, 387 U. S., at 533 (holding that
“broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may
——————
2 Respondents contend that §41.49’s principal purpose instead is to
facilitate criminal investigation. Brief for Respondents 44–47. Because
we find that the searches authorized by §41.49 are unconstitutional
even if they serve the City’s asserted purpose, we decline to address
this argument.
Cite as: 576 U. S. ____ (2015)
11
Opinion of the Court
only be invoked at the risk of a criminal penalty”). Absent
an opportunity for precompliance review, the ordinance
creates an intolerable risk that searches authorized by it
will exceed statutory limits, or be used as a pretext to
harass hotel operators and their guests. Even if a hotel
has been searched 10 times a day, every day, for three
months, without any violation being found, the operator
can only refuse to comply with an officer’s demand to turn
over the registry at his or her own peril.
To be clear, we hold only that a hotel owner must be
afforded an opportunity to have a neutral decisionmaker
review an officer’s demand to search the registry before he
or she faces penalties for failing to comply. Actual review
need only occur in those rare instances where a hotel
operator objects to turning over the registry. Moreover,
this opportunity can be provided without imposing onerous burdens on those charged with an administrative
scheme’s enforcement. For instance, respondents accept
that the searches authorized by §41.49(3)(a) would be
constitutional if they were performed pursuant to an
administrative subpoena. Tr. of Oral Arg. 36–37. These
subpoenas, which are typically a simple form, can be
issued by the individual seeking the record—here, officers
in the field—without probable cause that a regulation is
being infringed. See See, 387 U. S., at 544 (“[T]he demand
to inspect may be issued by the agency”). Issuing a subpoena will usually be the full extent of an officer’s burden
because “the great majority of businessmen can be expected in normal course to consent to inspection without
warrant.” Barlow’s, Inc., 436 U. S., at 316. Indeed, the
City has cited no evidence suggesting that without an
ordinance authorizing on-demand searches, hotel operators would regularly refuse to cooperate with the police.
In those instances, however, where a subpoenaed hotel
operator believes that an attempted search is motivated
by illicit purposes, respondents suggest it would be suffi-
12
LOS ANGELES v. PATEL
Opinion of the Court
cient if he or she could move to quash the subpoena before
any search takes place. Tr. of Oral Arg. 38–39. A neutral
decisionmaker, including an administrative law judge,
would then review the subpoenaed party’s objections
before deciding whether the subpoena is enforceable.
Given the limited grounds on which a motion to quash can
be granted, such challenges will likely be rare. And, in the
even rarer event that an officer reasonably suspects that a
hotel operator may tamper with the registry while the
motion to quash is pending, he or she can guard the registry until the required hearing can occur, which ought not
take long. Riley v. California, 573 U. S. ___ (2014) (slip
op., at 12) (police may seize and hold a cell phone “to
prevent destruction of evidence while seeking a warrant”);
Illinois v. McArthur, 531 U. S. 326, 334 (2001) (citing
cases upholding the constitutionality of “temporary restraints where [they are] needed to preserve evidence until
police could obtain a warrant”). Cf. Missouri v. McNeely,
569 U. S. ___ (2013) (slip op., at 12) (noting that many
States have procedures in place for considering warrant
applications telephonically).3
Procedures along these lines are ubiquitous. A 2002
report by the Department of Justice “identified
approximately 335 existing administrative subpoena
authorities held by various [federal] executive branch
entities.” Office of Legal Policy, Report to Congress
on the Use of Administrative Subpoena Authorities by
Executive Branch Agencies and Entities 3, online
at http://www.justice.gov/archive/olp/rpt_to_congress.htm
(All Internet materials as visited June 19, 2015, and
available in Clerk of Court’s case file). Their prevalence
——————
3 JUSTICE SCALIA professes to be baffled at the idea that we could
suggest that in certain circumstances, police officers may seize something that they cannot immediately search. Post, at 10–11 (dissenting
opinion). But that is what this Court’s cases have explicitly endorsed,
including Riley just last Term.
Cite as: 576 U. S. ____ (2015)
13
Opinion of the Court
confirms what common sense alone would otherwise lead
us to conclude: In most contexts, business owners can be
afforded at least an opportunity to contest an administrative search’s propriety without unduly compromising the
government’s ability to achieve its regulatory aims.
Of course administrative subpoenas are only one way in
which an opportunity for precompliance review can be
made available. But whatever the precise form, the availability of precompliance review alters the dynamic between the officer and the hotel to be searched, and reduces
the risk that officers will use these administrative searches
as a pretext to harass business owners.
Finally, we underscore the narrow nature of our holding. Respondents have not challenged and nothing in our
opinion calls into question those parts of §41.49 that require hotel operators to maintain guest registries containing certain information. And, even absent legislative
action to create a procedure along the lines discussed
above, see supra, at 11, police will not be prevented from
obtaining access to these documents. As they often do,
hotel operators remain free to consent to searches of their
registries and police can compel them to turn them over
if they have a proper administrative warrant—including
one that was issued ex parte—or if some other exception
to the warrant requirement applies, including exigent
circumstances.4
B
Rather than arguing that §41.49(3)(a) is constitutional
——————
4 In suggesting that our holding today will somehow impede law enforcement from achieving its important aims, JUSTICE SCALIA relies on
instances where hotels were used as “prisons for migrants smuggled
across the border and held for ransom” or as “rendezvous sites where
child sex workers meet their clients on threat of violence from their
procurers.” See post, at 2. It is hard to imagine circumstances more
exigent than these.
14
LOS ANGELES v. PATEL
Opinion of the Court
under the general administrative search doctrine, the City
and JUSTICE SCALIA contend that hotels are “closely regulated,” and that the ordinance is facially valid under the
more relaxed standard that applies to searches of this
category of businesses. Brief for Petitioner 28–47; post, at
5. They are wrong on both counts.
Over the past 45 years, the Court has identified only
four industries that “have such a history of government
oversight that no reasonable expectation of privacy . . .
could exist for a proprietor over the stock of such an enterprise,” Barlow’s, Inc., 436 U. S., 313. Simply listing
these industries refutes petitioner’s argument that hotels
should be counted among them. Unlike liquor sales, Colonnade Catering Corp. v. United States, 397 U. S. 72
(1970), firearms dealing, United States v. Biswell, 406
U. S. 311, 311–312 (1972), mining, Donovan v. Dewey, 452
U. S. 594 (1981), or running an automobile junkyard, New
York v. Burger, 482 U. S. 691 (1987), nothing inherent in
the operation of hotels poses a clear and significant risk to
the public welfare. See, e.g., id., at 709 (“Automobile
junkyards and vehicle dismantlers provide the major
market for stolen vehicles and vehicle parts”); Dewey, 452
U. S., at 602 (describing the mining industry as “among
the most hazardous in the country”).5
Moreover, “[t]he clear import of our cases is that the
closely regulated industry . . . is the exception.” Barlow’s,
Inc., 436 U. S., at 313. To classify hotels as pervasively
regulated would permit what has always been a narrow
exception to swallow the rule. The City wisely refrains
from arguing that §41.49 itself renders hotels closely
regulated. Nor do any of the other regulations on which
——————
5 JUSTICE SCALIA’s effort to depict hotels as raising a comparable degree of risk rings hollow. See post, at 1, 14. Hotels—like practically all
commercial premises or services—can be put to use for nefarious ends.
But unlike the industries that the Court has found to be closely regulated, hotels are not intrinsically dangerous.
Cite as: 576 U. S. ____ (2015)
15
Opinion of the Court
petitioner and JUSTICE SCALIA rely—regulations requiring
hotels to, inter alia, maintain a license, collect taxes,
conspicuously post their rates, and meet certain sanitary
standards—establish a comprehensive scheme of regulation that distinguishes hotels from numerous other businesses. See Brief for Petitioner 33–34 (citing regulations);
post, at 7 (same). All businesses in Los Angeles need a
license to operate. LAMC §§21.03(a), 21.09(a). While
some regulations apply to a smaller set of businesses, see
e.g. Cal. Code Regs., tit. 25, §40 (2015) (requiring linens
to be changed between rental guests), online at
http://www.oal.ca.gov/ccr.htm, these can hardly be said to
have created a “ ‘comprehensive’ ” scheme that puts hotel
owners on notice that their “ ‘property will be subject to
periodic inspections undertaken for specific purposes,’ ”
Burger, 482 U. S., at 705, n. 16 (quoting Dewey, 452 U. S.,
at 600). Instead, they are more akin to the widely applicable minimum wage and maximum hour rules that the
Court rejected as a basis for deeming “the entirety of
American interstate commerce” to be closely regulated in
Barlow’s, Inc. 436 U. S., at 314. If such general regulations were sufficient to invoke the closely regulated industry exception, it would be hard to imagine a type of business that would not qualify. See Brief for Google Inc. as
Amicus Curiae 16–17; Brief for the Chamber of Commerce
of United States of America as Amicus Curiae 12–13.
Petitioner attempts to recast this hodgepodge of regulations as a comprehensive scheme by referring to a
“centuries-old tradition” of warrantless searches of hotels.
Brief for Petitioner 34–36. History is relevant when determining whether an industry is closely regulated. See,
e.g., Burger, 482 U. S., at 707. The historical record here,
however, is not as clear as petitioner suggests. The City
and JUSTICE SCALIA principally point to evidence that
hotels were treated as public accommodations. Brief for
Petitioner 34–36; post, at 5–6, and n. 1. For instance, the
16
LOS ANGELES v. PATEL
Opinion of the Court
Commonwealth of Massachusetts required innkeepers to
“ ‘furnish[ ] . . . suitable provisions and lodging, for the
refreshment and entertainment of strangers and travellers, pasturing and stable room, hay and provender . . . for
their horses and cattle.’ ” Brief for Petitioner 35 (quoting
An Act For The Due Regulation Of Licensed Houses
(1786), reprinted in Acts and Laws of the Commonwealth
of Massachusetts 209 (1893)). But laws obligating inns to
provide suitable lodging to all paying guests are not the
same as laws subjecting inns to warrantless searches.
Petitioner also asserts that “[f]or a long time, [hotel] owners left their registers open to widespread inspection.”
Brief for Petitioner 51. Setting aside that modern hotel
registries contain sensitive information, such as driver’s
licenses and credit card numbers for which there is no
historic analog, the fact that some hotels chose to make
registries accessible to the public has little bearing on
whether government authorities could have viewed these
documents on demand without a hotel’s consent.
Even if we were to find that hotels are pervasively
regulated, §41.49 would need to satisfy three additional
criteria to be reasonable under the Fourth Amendment:
(1) “[T]here must be a ‘substantial’ government interest
that informs the regulatory scheme pursuant to which the
inspection is made”; (2) “the warrantless inspections must
be ‘necessary’ to further [the] regulatory scheme”; and (3)
“the statute’s inspection program, in terms of the certainty
and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.” Burger, 482
U. S., at 702–703 (internal quotation marks omitted). We
assume petitioner’s interest in ensuring that hotels maintain accurate and complete registries might fulfill the first
of these requirements, but conclude that §41.49 fails the
second and third prongs of this test.
The City claims that affording hotel operators any opportunity for precompliance review would fatally under-
Cite as: 576 U. S. ____ (2015)
17
Opinion of the Court
mine the scheme’s efficacy by giving operators a chance to
falsify their records. Brief for Petitioner 41–42. The
Court has previously rejected this exact argument, which
could be made regarding any recordkeeping requirement.
See Barlow’s, Inc., 436 U. S., at 320 (“[It is not] apparent
why the advantages of surprise would be lost if, after
being refused entry, procedures were available for the
[Labor] Secretary to seek an ex parte warrant to reappear
at the premises without further notice to the establishment being inspected”); cf. Lone Steer, 464 U. S., at 411,
415 (affirming use of administrative subpoena which
provided an opportunity for precompliance review as a
means for obtaining “payroll and sales records”). We see
no reason to accept it here.
As explained above, nothing in our decision today precludes an officer from conducting a surprise inspection by
obtaining an ex parte warrant or, where an officer reasonably suspects the registry would be altered, from guarding
the registry pending a hearing on a motion to quash. See
Barlow’s, Inc., 436 U. S., at 319–321; Riley, 573 U. S., at
___ (slip op., at 12). JUSTICE SCALIA’s claim that these
procedures will prove unworkable given the large number
of hotels in Los Angeles is a red herring. See post, at 11.
While there are approximately 2,000 hotels in Los Angeles, ibid., there is no basis to believe that resort to such
measures will be needed to conduct spot checks in the vast
majority of them. See supra, at 11.
Section 41.49 is also constitutionally deficient under the
“certainty and regularity” prong of the closely regulated
industries test because it fails sufficiently to constrain
police officers’ discretion as to which hotels to search and
under what circumstances. While the Court has upheld
inspection schemes of closely regulated industries that
called for searches at least four times a year, Dewey, 452
U. S., at 604, or on a “regular basis,” Burger, 482 U. S., at
711, §41.49 imposes no comparable standard.
18
LOS ANGELES v. PATEL
Opinion of the Court
*
*
*
For the foregoing reasons, we agree with the Ninth
Circuit that §41.49(3)(a) is facially invalid insofar as it
fails to provide any opportunity for precompliance review
before a hotel must give its guest registry to the police for
inspection. Accordingly, the judgment of the Ninth Circuit
is affirmed.
It is so ordered.
Cite as: 576 U. S. ____ (2015)
1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1175
_________________
CITY OF LOS ANGELES, CALIFORNIA, PETITIONER
v. NARANJIBHAI PATEL, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 22, 2015] JUSTICE SCALIA, with whom THE CHIEF JUSTICE and
JUSTICE THOMAS join, dissenting.
The city of Los Angeles, like many jurisdictions across
the country, has a law that requires motels, hotels, and
other places of overnight accommodation (hereinafter
motels) to keep a register containing specified information
about their guests. Los Angeles Municipal Code (LAMC)
§41.49(2) (2015). The purpose of this recordkeeping requirement is to deter criminal conduct, on the theory that
criminals will be unwilling to carry on illicit activities in
motel rooms if they must provide identifying information
at check-in. Because this deterrent effect will only be
accomplished if motels actually do require guests to provide the required information, the ordinance also authorizes police to conduct random spot checks of motels’ guest
registers to ensure that they are properly maintained.
§41.49(3). The ordinance limits these spot checks to the
four corners of the register, and does not authorize police
to enter any nonpublic area of the motel. To the extent
possible, police must conduct these spot checks at times
that will minimize any disruption to a motel’s business.
The parties do not dispute the governmental interests at
stake. Motels not only provide housing to vulnerable
transient populations, they are also a particularly attractive site for criminal activity ranging from drug dealing
2
LOS ANGELES v. PATEL
SCALIA, J., dissenting
and prostitution to human trafficking. Offering privacy
and anonymity on the cheap, they have been employed
as prisons for migrants smuggled across the border and
held for ransom, see Sanchez, Immigrant Smugglers Become More Ruthless, Washington Post, June 28, 2004,
p. A3; Wagner, Human Smuggling, Arizona Republic,
July 23, 2006, p. A1, and rendezvous sites where child sex
workers meet their clients on threat of violence from their
procurers.
Nevertheless, the Court today concludes that Los Angeles’s ordinance is “unreasonable” inasmuch as it permits
police to flip through a guest register to ensure it is being
filled out without first providing an opportunity for the
motel operator to seek judicial review. Because I believe
that such a limited inspection of a guest register is eminently reasonable under the circumstances presented, I
dissent.
I
I assume that respondents may bring a facial challenge
to the City’s ordinance under the Fourth Amendment.
Even so, their claim must fail because, as discussed infra,
the law is constitutional in most, if not all, of its applications. See United States v. Salerno, 481 U. S. 739, 751
(1987). But because the Court discusses the propriety of a
facial challenge at some length, I offer a few thoughts.
Article III limits our jurisdiction to “Cases” and “Controversies.” Accordingly, “[f]ederal courts may not ‘decide
questions that cannot affect the rights of litigants in the
case before them’ or give ‘opinion[s] advising what the law
would be upon a hypothetical state of facts.’ ” Chafin v.
Chafin, 568 U. S. ___, ___ (2013) (slip op., at 5). To be
sure, the reasoning of a decision may suggest that there is
no permissible application of a particular statute, Chicago
v. Morales, 527 U. S. 41, 77 (1999) (SCALIA, J., dissenting),
and under the doctrine of stare decisis, this reasoning—to
Cite as: 576 U. S. ____ (2015)
3
SCALIA, J., dissenting
the extent that it is necessary to the holding—will be
binding in all future cases. But in this sense, the facial
invalidation of a statute is a logical consequence of the
Court’s opinion, not the immediate effect of its judgment.
Although we have at times described our holdings as
invalidating a law, it is always the application of a law,
rather than the law itself, that is before us.
The upshot is that the effect of a given case is a function
not of the plaintiff ’s characterization of his challenge, but
the narrowness or breadth of the ground that the Court
relies upon in disposing of it. If a plaintiff elects not to
present any case-specific facts in support of a claim that a
law is unconstitutional—as is the case here—he will limit
the grounds on which a Court may find for him to highly
abstract rules that would have broad application in future
cases. The decision to do this might be a poor strategic
move, especially in a Fourth Amendment case, where the
reasonableness of a search is a highly factbound question
and general, abstract rules are hard to come by. Cf.
Sibron v. New York, 392 U. S. 40, 59 (1968). But even had
the plaintiffs in this case presented voluminous facts in a
self-styled as-applied challenge, nothing would force this
Court to rely upon those facts rather than the broader
principle that the Court has chosen to rely upon. I see no
reason why a plaintiff ’s self-description of his challenge as
facial would provide an independent reason to reject it
unless we were to delegate to litigants our duty to say
what the law is.
II
The Fourth Amendment provides, in relevant part, that
“[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause.” Grammatically, the two
clauses of the Amendment seem to be independent—and
4
LOS ANGELES v. PATEL
SCALIA, J., dissenting
directed at entirely different actors. The former tells the
executive what it must do when it conducts a search, and
the latter tells the judiciary what it must do when it issues
a search warrant. But in an effort to guide courts in applying the Search-and-Seizure Clause’s indeterminate
reasonableness standard, and to maintain coherence in
our case law, we have used the Warrant Clause as a
guidepost for assessing the reasonableness of a search,
and have erected a framework of presumptions applicable
to broad categories of searches conducted by executive
officials. Our case law has repeatedly recognized, however, that these are mere presumptions, and the only constitutional requirement is that a search be reasonable.
When, for example, a search is conducted to enforce an
administrative regime rather than to investigate criminal
wrongdoing, we have been willing to modify the probablecause standard so that a warrant may issue absent individualized suspicion of wrongdoing. Thus, our cases say a
warrant may issue to inspect a structure for fire-code
violations on the basis of such factors as the passage of
time, the nature of the building, and the condition of the
neighborhood. Camara v. Municipal Court of City and
County of San Francisco, 387 U. S. 523, 538–539 (1967).
As we recognized in that case, “reasonableness is still the
ultimate standard. If a valid public interest justifies the
intrusion contemplated, then there is probable cause to
issue a suitably restricted search warrant.” Id., at 539.
And precisely “because the ultimate touchstone of the
Fourth Amendment is ‘reasonableness,’ ” even the presumption that the search of a home without a warrant is
unreasonable “is subject to certain exceptions.” Brigham
City v. Stuart, 547 U. S. 398, 403 (2006).
One exception to normal warrant requirements applies
to searches of closely regulated businesses. “[W]hen an
entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of
Cite as: 576 U. S. ____ (2015)
5
SCALIA, J., dissenting
governmental regulation,” and so a warrantless search to
enforce those regulations is not unreasonable. Marshall v.
Barlow’s, Inc., 436 U. S. 307, 313 (1978). Recognizing that
warrantless searches of closely regulated businesses may
nevertheless become unreasonable if arbitrarily conducted,
we have required laws authorizing such searches to satisfy
three criteria: (1) There must be a “ ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made”; (2) “the warrantless
inspections must be ‘necessary to further [the] regulatory
scheme’ ”; and (3) “ ‘the statute’s inspection program, in
terms of the certainty and regularity of its application,
[must] provid[e] a constitutionally adequate substitute for
a warrant.’ ” New York v. Burger, 482 U. S. 691, 702–703
(1987).
Los Angeles’s ordinance easily meets these standards.
A
In determining whether a business is closely regulated,
this Court has looked to factors including the duration of
the regulatory tradition, id., at 705–707, Colonnade Catering Corp. v. United States, 397 U. S. 72, 75–77 (1970),
Donovan v. Dewey, 452 U. S. 594, 606 (1981); the comprehensiveness of the regulatory regime, Burger, supra, at
704–705, Dewey, supra, at 606; and the imposition of
similar regulations by other jurisdictions, Burger, supra,
at 705. These factors are not talismans, but shed light on
the expectation of privacy the owner of a business may
reasonably have, which in turn affects the reasonableness
of a warrantless search. See Barlow’s, supra, at 313.
Reflecting the unique public role of motels and their
commercial forebears, governments have long subjected
these businesses to unique public duties, and have established inspection regimes to ensure compliance. As Blackstone observed, “Inns, in particular, being intended for the
lodging and receipt of travellers, may be indicted, sup-
6
LOS ANGELES v. PATEL
SCALIA, J., dissenting
pressed, and the inn-keepers fined, if they refuse to entertain a traveller without a very sufficient cause: for thus to
frustrate the end of their institution is held to be disorderly
behavior.” 4 W. Blackstone, Commentaries on the Laws
of England 168 (1765). Justice Story similarly recognized
“[t]he soundness of the public policy of subjecting particular classes of persons to extraordinary responsibility, in
cases where an extraordinary confidence is necessarily
reposed in them, and there is an extraordinary temptation
to fraud, or danger of plunder.” J. Story, Commentaries
on the Law of Bailments §464, pp. 487–488 (5th ed. 1851).
Accordingly, in addition to the obligation to receive any
paying guest, “innkeepers are bound to take, not merely
ordinary care, but uncommon care, of the goods, money,
and baggage of their guests,” id., §470, at 495, as travellers “are obliged to rely almost implicitly on the good faith
of innholders, whose education and morals are none of the
best, and who might have frequent opportunities of associating with ruffians and pilferers,” id., §471, at 498.
These obligations were not merely aspirational. At the
time of the founding, searches—indeed, warrantless
searches—of inns and similar places of public accommodation were commonplace. For example, although Massachusetts was perhaps the State most protective against
government searches, “the state code of 1788 still allowed
tithingmen to search public houses of entertainment on
every Sabbath without any sort of warrant.” W. Cuddihy,
Fourth Amendment: Origins and Original Meaning 602–
1791, 743 (2009).1
As this evidence demonstrates, the regulatory tradition
governing motels is not only longstanding, but comprehen——————
1 As Beale helpfully confirms, “[f ]rom the earliest times the fundamental characteristic of an inn has been its public nature. It is a public
house, a house of public entertainment, or, as it is legally phrased, a
common inn.” J. Beale, The Law of Innkeepers and Hotels §11, p. 10
(1906).
Cite as: 576 U. S. ____ (2015)
7
SCALIA, J., dissenting
sive. And the tradition continues in Los Angeles. The
City imposes an occupancy tax upon transients who stay
in motels, LAMC §21.7.3, and makes the motel owner
responsible for collecting it, §21.7.5. It authorizes city
officials “to enter [a motel], free of charge, during business
hours” in order to “inspect and examine” them to determine whether these tax provisions have been complied
with. §§21.7.9, 21.15. It requires all motels to obtain a
“Transient Occupancy Registration Certificate,” which
must be displayed on the premises. §21.7.6. State law
requires motels to “post in a conspicuous place . . . a
statement of rate or range of rates by the day for lodging,”
and forbids any charges in excess of those posted rates.
Cal. Civ. Code Ann. §1863 (West 2010). Hotels must
change bed linens between guests, Cal. Code Regs., tit. 25,
§40 (2015), and they must offer guests the option not to
have towels and linens laundered daily, LAMC §121.08.
“Multiuse drinking utensils” may be placed in guest rooms
only if they are “thoroughly washed and sanitized after
each use” and “placed in protective bags.” Cal. Code Regs.,
tit. 17, §30852. And state authorities, like their municipal
counterparts, “may at reasonable times enter and inspect
any hotels, motels, or other public places” to ensure compliance. §30858.
The regulatory regime at issue here is thus substantially more comprehensive than the regulations governing
junkyards in Burger, where licensing, inventory-recording,
and permit-posting requirements were found sufficient to
qualify the industry as closely regulated. 482 U. S., at
704–705. The Court’s suggestion that these regulations
are not sufficiently targeted to motels, and are “akin to . . .
minimum wage and maximum hour rules,” ante, at 15, is
simply false. The regulations we have described above
reach into the “minutest detail[s]” of motel operations,
Barlow’s, supra, at 314, and those who enter that business
today (like those who have entered it over the centuries)
8
LOS ANGELES v. PATEL
SCALIA, J., dissenting
do so with an expectation that they will be subjected to
especially vigilant governmental oversight.
Finally, this ordinance is not an outlier. The City has
pointed us to more than 100 similar register-inspection
laws in cities and counties across the country, Brief for
Petitioner 36, and n. 3, and that is far from exhaustive. In
all, municipalities in at least 41 States have laws similar
to Los Angeles’s, Brief for National League of Cities et al.
as Amici Curiae 16–17, and at least 8 States have their
own laws authorizing register inspections, Brief for California et al. as Amici Curiae 12–13.
This copious evidence is surely enough to establish that
“[w]hen a [motel operator] chooses to engage in this pervasively regulated business . . . he does so with the
knowledge that his business records . . . will be subject to
effective inspection.” United States v. Biswell, 406 U. S.
311, 316 (1972). And that is the relevant constitutional
test—not whether this regulatory superstructure is “the
same as laws subjecting inns to warrantless searches,” or
whether, as an historical matter, government authorities
not only required these documents to be kept but permitted them to be viewed on demand without a motel’s consent. Ante, at 16.
The Court’s observation that “[o]ver the past 45 years,
the Court has identified only four industries” as closely
regulated, ante, at 14, is neither here nor there. Since we
first concluded in Colonnade Catering that warrantless
searches of closely regulated businesses are reasonable,
we have only identified one industry as not closely regulated, see Barlow’s, 436 U. S., at 313–314. The Court’s
statistic thus tells us more about how this Court exercises
its discretionary review than it does about the number of
industries that qualify as closely regulated. At the same
time, lower courts, which do not have the luxury of picking
the cases they hear, have identified many more businesses
as closely regulated under the test we have announced:
Cite as: 576 U. S. ____ (2015)
9
SCALIA, J., dissenting
pharmacies, United States v. Gonsalves, 435 F. 3d 64, 67
(CA1 2006); massage parlors, Pollard v. Cockrell, 578
F. 2d 1002, 1014 (CA5 1978); commercial-fishing operations, United States v. Raub, 637 F. 2d 1205, 1208–1209
(CA9 1980); day-care facilities, Rush v. Obledo, 756 F. 2d
713, 720–721 (CA9 1985); nursing homes, People v. Firstenberg, 92 Cal. App. 3d 570, 578–580, 155 Cal. Rptr. 80,
84–86 (1979); jewelers, People v. Pashigian, 150 Mich.
App. 97, 100–101, 388 N. W. 2d 259, 261–262 (1986) (per
curiam); barbershops, Stogner v. Kentucky, 638 F. Supp. 1,
3 (WD Ky. 1985); and yes, even rabbit dealers, Lesser v.
Espy, 34 F. 3d 1301, 1306–1307 (CA7 1994). Like automobile junkyards and catering companies that serve alcohol, many of these businesses are far from “intrinsically
dangerous,” cf. ante, at 14, n. 5. This should come as no
surprise. The reason closely regulated industries may be
searched without a warrant has nothing to do with the
risk of harm they pose; rather, it has to do with the expectations of those who enter such a line of work. See Barlow’s, supra, at 313.
B
The City’s ordinance easily satisfies the remaining
Burger requirements: It furthers a substantial governmental interest, it is necessary to achieving that interest,
and it provides an adequate substitute for a search
warrant.
Neither respondents nor the Court question the substantial interest of the City in deterring criminal activity.
See Brief for Respondents 34–41; ante, at 15. The private
pain and public costs imposed by drug dealing, prostitution, and human trafficking are beyond contention, and
motels provide an obvious haven for those who trade in
human misery.
Warrantless inspections are also necessary to advance
this interest. Although the Court acknowledges that law
10
LOS ANGELES v. PATEL
SCALIA, J., dissenting
enforcement can enter a motel room without a warrant
when exigent circumstances exist, see ante, at 13, n. 4, the
whole reason criminals use motel rooms in the first place
is that they offer privacy and secrecy, so that police will
never come to discover these exigencies. The recordkeeping requirement, which all parties admit is permissible,
therefore operates by deterring crime. Criminals, who
depend on the anonymity that motels offer, will balk when
confronted with a motel’s demand that they produce identification. And a motel’s evasion of the recordkeeping
requirement fosters crime. In San Diego, for example,
motel owners were indicted for collaborating with members of the Crips street gang in the prostitution of underage girls; the motel owners “set aside rooms apart from
the rest of their legitimate customers where girls and
women were housed, charged the gang members/pimps a
higher rate for the rooms where ‘dates’ or ‘tricks’ took
place, and warned the gang members of inquiries by law
enforcement.” Office of the Attorney General, Cal. Dept. of
Justice, The State of Human Trafficking in California 25
(2012). The warrantless inspection requirement provides
a necessary incentive for motels to maintain their registers thoroughly and accurately: They never know when
law enforcement might drop by to inspect.
Respondents and the Court acknowledge that inspections are necessary to achieve the purposes of the recordkeeping regime, but insist that warrantless inspections are
not. They have to acknowledge, however, that the motel
operators who conspire with drug dealers and procurers
may demand precompliance judicial review simply as a
pretext to buy time for making fraudulent entries in their
guest registers. The Court therefore must resort to arguing that warrantless inspections are not “necessary” because other alternatives exist.
The Court suggests that police could obtain an administrative subpoena to search a guest register and, if a motel
Cite as: 576 U. S. ____ (2015)
11
SCALIA, J., dissenting
moves to quash, the police could “guar[d] the registry
pending a hearing” on the motion. Ante, at 17. This proposal is equal parts 1984 and Alice in Wonderland. It
protects motels from government inspection of their registers by authorizing government agents to seize the registers2 (if “guarding” entails forbidding the register to be
moved) or to upset guests by a prolonged police presence
at the motel. The Court also notes that police can obtain
an ex parte warrant before conducting a register inspection. Ante, at 17. Presumably such warrants could issue
without probable cause of wrongdoing by a particular
motel, see Camara, 387 U. S., at 535–536; otherwise, this
would be no alternative at all. Even so, under this regime
police would have to obtain an ex parte warrant before
every inspection. That is because law enforcement would
have no way of knowing ahead of time which motels would
refuse consent to a search upon request; and if they wait
to obtain a warrant until consent is refused, motels will
have the opportunity to falsify their guest registers while
the police jump through the procedural hoops required to
obtain a warrant. It is quite plausible that the costs of
this always-get-a-warrant “alternative” would be prohibitive for a police force in one of America’s largest cities,
juggling numerous law-enforcement priorities, and confronting more than 2,000 motels within its jurisdiction.
E. Wallace, K. Pollock, B. Horth, S. Carty, & N. Elyas, Los Angeles Tourism: A Domestic and International Analysis 7 (May 2014 online at http:
//www.lachamber.com/clientuploads/Global_Programs/
WTW/2014/LATourism_LMU_May2014.pdf
(as
visited
June 19, 2015, and available in Clerk of Court’s
——————
2 We
are not at all “baffled at the idea that . . . police officers may
seize something that they cannot immediately search.” Ante, at 12,
n. 3. We are baffled at the idea that anyone would think a seizure of
required records less intrusive than a visual inspection.
12
LOS ANGELES v. PATEL
SCALIA, J., dissenting
case file). To be sure, the fact that obtaining a warrant
might be costly will not by itself render a warrantless
search reasonable under the Fourth Amendment; but it
can render a warrantless search necessary in the context
of an administrative-search regime governing closely
regulated businesses.
But all that discussion is in any case irrelevant. The
administrative search need only be reasonable. It is not
the burden of Los Angeles to show that there are no less
restrictive means of achieving the City’s purposes. Sequestration or ex parte warrants were possible alternatives
to the warrantless search regimes approved by this Court
in Colonnade Catering, Biswell, Dewey, and Burger. By
importing a least-restrictive-means test into Burger’s
Fourth Amendment framework, today’s opinion implicitly
overrules that entire line of cases.
Finally, the City’s ordinance provides an adequate
substitute for a warrant. Warrants “advise the owner of
the scope and objects of the search, beyond which limits
the inspector is not expected to proceed.” Barlow’s, 436
U. S., at 323. Ultimately, they aim to protect against
“devolv[ing] almost unbridled discretion upon executive
and administrative officers, particularly those in the field,
as to when to search and whom to search.” Ibid.
Los Angeles’s ordinance provides that the guest register
must be kept in the guest reception or guest check-in area,
or in an adjacent office, and that it “be made available to
any officer of the Los Angeles Police Department for inspection. Whenever possible, the inspection shall be conducted at a time and in a manner that minimizes any
interference with the operation of the business.” LAMC
§41.49(3). Nothing in the ordinance authorizes law enforcement to enter a nonpublic part of the motel. Compare
this to the statute upheld in Colonnade Catering, which
provided that “ ‘[t]he Secretary or his delegate may enter,
in the daytime, any building or place where any articles or
Cite as: 576 U. S. ____ (2015)
13
SCALIA, J., dissenting
objects subject to tax are made, produced, or kept, so far as
it may be necessary for the purpose of examining said
articles or objects,’ ” 397 U. S., at 73, n. 2 (quoting 26
U. S. C. §7606(a) (1964 ed.)); or the one in Biswell, which
stated that “ ‘[t]he Secretary may enter during business
hours the premises (including places of storage) of any
firearms or ammunition importer . . . for the purpose of
inspecting or examining (1) any records or documents
required to be kept . . . , and (2) any firearms or ammunition kept or stored,’ ” 406 U. S., at 312, n. 1 (quoting 18
U. S. C. §923(g) (1970 ed.)); or the one in Dewey, which
granted federal mine inspectors “ ‘a right of entry to, upon,
or through any coal or other mine,’ ” 452 U. S., at 596
(quoting 30 U. S. C. §813(a) (1976 ed., Supp. III)); or the
one in Burger, which compelled junkyard operators to
“ ‘produce such records and permit said agent or police
officer to examine them and any vehicles or parts of vehicles which are subject to the record keeping requirements
of this section and which are on the premises,’ ” 482 U. S.,
at 694, n. 1 (quoting N. Y. Veh. & Traf. Law §415–a5
(McKinney 1986)). The Los Angeles ordinance—which
limits warrantless police searches to the pages of a guest
register in a public part of a motel—circumscribes police
discretion in much more exacting terms than the laws we
have approved in our earlier cases.
The Court claims that Los Angeles’s ordinance confers
too much discretion because it does not adequately limit
the frequency of searches. Without a trace of irony, the
Court tries to distinguish Los Angeles’s law from the laws
upheld in Dewey and Burger by pointing out that the
latter regimes required inspections at least four times a
year and on a “ ‘regular basis,’ ” respectively. Ante, at 17.
But the warrantless police searches of a business “10
times a day, every day, for three months” that the Court
envisions under Los Angeles’s regime, ante, at 11, are
entirely consistent with the regimes in Dewey and Burger;
14
LOS ANGELES v. PATEL
SCALIA, J., dissenting
10 times a day, every day, is “at least four times a year,”
and on a (much too) “ ‘regular basis.’ ” Ante, at 17.
That is not to say that the Court’s hypothetical searches
are necessarily constitutional. It is only to say that Los
Angeles’s ordinance presents no greater risk that such a
hypothetical will materialize than the laws we have already upheld. As in our earlier cases, we should leave it to
lower courts to consider on a case-by-case basis whether
warrantless searches have been conducted in an unreasonably intrusive or harassing manner.
III
The Court reaches its wrongheaded conclusion not
simply by misapplying our precedent, but by mistaking
our precedent for the Fourth Amendment itself. Rather
than bother with the text of that Amendment, the Court
relies exclusively on our administrative-search cases,
Camara, See v. Seattle, 387 U. S. 541 (1967), and Barlow’s.
But the Constitution predates 1967, and it remains the
supreme law of the land today. Although the categorical
framework our jurisprudence has erected in this area may
provide us guidance, it is guidance to answer the constitutional question at issue: whether the challenged search is
reasonable.
An administrative, warrantless-search ordinance that
narrowly limits the scope of searches to a single business
record, that does not authorize entry upon premises not
open to the public, and that is supported by the need to
prevent fabrication of guest registers, is, to say the least,
far afield from the laws at issue in the cases the Court
relies upon. The Court concludes that such minor intrusions, permissible when the police are trying to tamp down
the market in stolen auto parts, are “unreasonable” when
police are instead attempting to stamp out the market in
child sex slaves.
Because I believe that the limited warrantless searches
Cite as: 576 U. S. ____ (2015)
15
SCALIA, J., dissenting
authorized by Los Angeles’s ordinance are reasonable
under the circumstances, I respectfully dissent.
Cite as: 576 U. S. ____ (2015)
1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1175
_________________
CITY OF LOS ANGELES, CALIFORNIA, PETITIONER
v. NARANJIBHAI PATEL, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 22, 2015] JUSTICE ALITO, with whom JUSTICE THOMAS joins,
dissenting.
After today, the city of Los Angeles can never, under any
circumstances, enforce its 116-year-old requirement that
hotels make their registers available to police officers.
That is because the Court holds that §41.49(3)(a) of the
Los Angeles Municipal Code (2015) is facially unconstitutional. Before entering a judgment with such serious
safety and federalism implications, the Court must conclude that every application of this law is unconstitutional—i.e., that “ ‘no set of circumstances exists under
which the [law] would be valid.’ ” Ante, at 7 (quoting United
States v. Salerno, 481 U. S. 739, 745 (1987)). I have
doubts about the Court’s approach to administrative
searches and closely regulated industries. Ante, at 9–17.
But even if the Court were 100% correct, it still should
uphold §41.49(3)(a) because many other applications of
this law are constitutional. Here are five examples.
Example One. The police have probable cause to believe
that a register contains evidence of a crime. They go to a
judge and get a search warrant. The hotel operator, however, refuses to surrender the register, but instead stashes
it away. Officers could tear the hotel apart looking for it.
Or they could simply order the operator to produce it. The
Fourth Amendment does not create a right to defy a war-
2
LOS ANGELES v. PATEL
ALITO, J., dissenting
rant. Hence §41.49(3)(a) could be constitutionally applied
in this scenario. Indeed, the Court concedes that it is
proper to apply a California obstruction of justice law in
such a case. See ante, at 8–9, n. 1; Brief for Respondents
49. How could applying a city law with a similar effect be
different? No one thinks that overlapping laws are unconstitutional. See, e.g., Yates v. United States, 574 U. S. ___,
___ (2015) (KAGAN, J. dissenting) (slip op., at 10–11)
(“Overlap—even significant overlap—abounds in criminal
law”) (collecting citations). And a specific law gives more
notice than a general law.
In any event, the Los Angeles ordinance is arguably
broader in at least one important respect than the California obstruction of justice statute on which the Court relies.
Ante, at 8–9, n. 1. The state law applies when a person
“willfully resists, delays, or obstructs any public officer . . .
in the discharge or attempt to discharge any duty of his or
her office.” Cal. Penal Code Ann. §148(a)(1) (West 2014).
In the example set out above, suppose that the hotel operator, instead of hiding the register, simply refused to tell
the police where it is located. The Court cites no California case holding that such a refusal would be unlawful,
and the city of Los Angeles submits that under California
law, “[o]bstruction statutes prohibit a hotel owner from
obstructing a search, but they do not require affirmative
assistance.” Reply Brief 5. The Los Angeles ordinance, by
contrast, unequivocally requires a hotel operator to make
the register available on request.
Example Two. A murderer has kidnapped a woman
with the intent to rape and kill her and there is reason to
believe he is holed up in a certain motel. The Fourth
Amendment’s reasonableness standard accounts for exigent circumstances. See, e.g., Brigham City v. Stuart, 547
U. S. 398, 403 (2006). When the police arrive, the motel
operator folds her arms and says the register is locked in a
safe. Invoking §41.49(3)(a), the police order the operator
Cite as: 576 U. S. ____ (2015)
3
ALITO, J., dissenting
to turn over the register. She refuses. The Fourth
Amendment does not protect her from arrest.
Example Three. A neighborhood of “pay by the hour”
motels is a notorious gathering spot for child-sex traffickers. Police officers drive through the neighborhood late
one night and see unusual amounts of activity at a particular motel. The officers stop and ask the motel operator
for the names of those who paid with cash to rent rooms
for less than three hours. The operator refuses to provide
the information. Requesting to see the register—and
arresting the operator for failing to provide it—would be
reasonable under the “totality of the circumstances.” Ohio
v. Robinette, 519 U. S. 33, 39 (1996). In fact, the Court has
upheld a similar reporting duty against a Fourth Amendment challenge where the scope of information required
was also targeted and the public’s interest in crime prevention was no less serious. See California Bankers Assn.
v. Shultz, 416 U. S. 21, 39, n. 15, 66–67 (1974) (having “no
difficulty” upholding a requirement that banks must
provide reports about transactions involving more than
$10,000, including the name, address, occupation, and
social security number of the customer involved, along
with a summary of the transaction, the amount of money
at issue, and the type of identification presented).
Example Four. A motel is operated by a dishonest
employee. He has been charging more for rooms than he
records, all the while pocketing the difference. The owner
finds out and eagerly consents to a police inspection of the
register. But when officers arrive and ask to see the register, the operator hides it. The Fourth Amendment does
not allow the operator’s refusal to defeat the owner’s
consent. See, e.g., Mancusi v. DeForte, 392 U. S. 364, 369–
370 (1968). Accordingly, it would not violate the Fourth
Amendment to arrest the operator for failing to make the
register “available to any officer of the Los Angeles Police
Department for inspection.” §41.49(3)(a).
4
LOS ANGELES v. PATEL
ALITO, J., dissenting
Example Five. A “mom and pop” motel always keeps its
old-fashioned guest register open on the front desk. Anyone who wants to can walk up and leaf through it. (Such
motels are not as common as they used to be, but Los
Angeles is a big place.) The motel has no reasonable
expectation of privacy in the register, and no one doubts
that police officers—like anyone else—can enter into the
lobby. See, e.g., Florida v. Jardines, 569 U. S. 1, ___
(2013) (slip op., at 6); Donovan v. Lone Steer, Inc., 464
U. S. 408, 413 (1984). But when an officer starts looking
at the register, as others do, the motel operator at the desk
snatches it away and will not give it back. Arresting that
person would not violate the Fourth Amendment.
These are just five examples. There are many more.
The Court rushes past examples like these by suggesting
that §41.49(3)(a) does no “work” in such scenarios. Ante,
at 8. That is not true. Under threat of legal sanction, this
law orders hotel operators to do things they do not want to
do. To be sure, there may be circumstances in which
§41.49(3)(a)’s command conflicts with the Fourth Amendment, and in those circumstances the Fourth Amendment
is supreme. See U. S. Const., Art VI, cl. 2. But no different from any other local law, the remedy for such circumstances should be an as-applied injunction limited to the
conflict with the Fourth Amendment. Such an injunction
would protect a hotel from being “searched 10 times a day,
every day, for three months, without any violation being
found.” Ante, at 11. But unlike facial invalidation, an asapplied injunction does not produce collateral damage.
Section 41.49(3)(a) should be enforceable in those many
cases in which the Fourth Amendment is not violated.
There are serious arguments that the Fourth Amendment’s application to warrantless searches and seizures is
inherently inconsistent with facial challenges. See Sibron
v. New York, 392 U. S. 40, 59, 62 (1968) (explaining that
because of the Fourth Amendment’s reasonableness re-
Cite as: 576 U. S. ____ (2015)
5
ALITO, J., dissenting
quirement, “[t]he constitutional validity of a warrantless
search is pre-eminently the sort of question which can only
be decided in the concrete factual context of the individual
case”); Brief for Manhattan Institute for Policy Research
as Amicus Curiae 33 (“A constitutional claim under the
first clause of the Fourth Amendment is never a ‘facial’
challenge, because it is always and inherently a challenge
to executive action”). But assuming such facial challenges
ever make sense conceptually, this particular one fails
under basic principles of facial invalidation. The Court’s
contrary holding is befuddling. I respectfully dissent.
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
135 S.Ct. 2187
Supreme Court of the United States
Ron DAVIS, Acting Warden, Petitioner
v.
Hector AYALA.
No. 13–1428.
|
Argued March 3, 2015.
|
Decided June 18, 2015.
Synopsis
Background: After his murder conviction and death sentence were affirmed, 24 Cal.4th 243, 99 Cal.Rptr.2d 532, 6 P.3d 193,
California state prisoner petitioned for federal habeas corpus relief. The United States District Court for the Southern District
of California, Irma E. Gonzalez, Chief Judge, denied relief, 2007 WL 2019538, 2007 WL 3146739, but granted certificate of
appealability (COA), 2009 WL 1357416, and prisoner appealed. On denial of rehearing en banc, the United States Court of
Appeals for the Ninth Circuit, Reinhardt, Circuit Judge, 756 F.3d 656, reversed and remanded. Certiorari was granted.
[Holding:] The United States Supreme Court, Justice Alito, held that any constitutional error in defense counsel's absence from
ex parte hearing regarding Batson challenges was harmless.
Reversed and remanded.
Justice Kennedy filed concurring opinion.
Justice Thomas filed concurring opinion.
Justice Sotomayor filed dissenting opinion in which Justices Ginsburg, Breyer, and Kagan joined.
*2191 Syllabus *
During jury selection in respondent Ayala's murder trial, Ayala, who is Hispanic, objected that seven of the prosecution's
peremptory challenges were impermissibly race-based under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.
The judge permitted the prosecution to disclose its reasons for the strikes outside the presence of the defense and concluded
that the prosecution had valid, race-neutral reasons for the strikes. Ayala was eventually convicted and sentenced to death. On
appeal, the California Supreme Court analyzed Ayala's challenge under both Batson and its state-law analogue, concluding that
it was error, as a matter of state law, to exclude Ayala from the hearings. The court held, however, that the error was harmless
under state law and that, if a federal error occurred, it too was harmless beyond a reasonable doubt under Chapman v. California,
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Ayala subsequently pressed his claims in federal court. There, the District Court held
that even if the ex parte proceedings violated federal law, the state court's harmlessness finding could not be overturned because
it was not contrary to or an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d). A divided
panel of the Ninth Circuit disagreed and granted Ayala habeas relief. The panel majority held that the ex parte proceedings
violated Ayala's federal constitutional rights and that the error was not harmless under Brecht v. Abrahamson, 507 U.S. 619,
113 S.Ct. 1710, 123 L.Ed.2d 353, as to at least three of the seven prospective jurors.
Held : Any federal constitutional error that may have occurred by excluding Ayala's attorney from part of the Batson hearing
was harmless. Pp. 2197 – 2208.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
1
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
(a) Even assuming that Ayala's federal rights were violated, he is entitled to habeas relief only if the prosecution cannot
demonstrate harmlessness. Glebe v. Frost, 574 U.S. ––––, ––––, 135 S.Ct. 429, 432, 190 L.Ed.2d 317. Under Brecht, federal
habeas petitioners “are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual
prejudice.’ ” 507 U.S., at 637, 113 S.Ct. 1710. Because Ayala seeks federal habeas corpus relief, he must meet the Brecht
standard, but that does not mean, as the Ninth Circuit thought, that a state court's harmlessness determination has no significance
under Brecht. The Brecht standard subsumes the requirements that § 2254(d) imposes when a federal habeas petitioner contests
a state court's determination that a constitutional error was harmless under Chapman. Fry v. Pliler, 551 U.S. 112, 120, 127
S.Ct. 2321, 168 L.Ed.2d 16. But Brecht did not abrogate the limitation on federal habeas relief that the Antiterrorism and
Effective Death Penalty Act of 1996 plainly sets out. There is no dispute that the California Supreme Court held that any federal
error was harmless under Chapman, and this decision was an “adjudication on the merits” of Ayala's claim. Accordingly,
a federal court cannot grant *2192 Ayala relief unless the state court's rejection of his claim was contrary to or involved
an unreasonable application of clearly established federal law as determined by the Supreme Court, or was based on an
unreasonable determination of the facts. Pp. 2197 – 2198.
(b) Any federal constitutional error was harmless with respect to all seven prospective jurors. Pp. 2199 – 2208.
(1) The prosecution stated that it struck Olanders D., an African–American man, because it was concerned that he could not
impose the death penalty and because of the poor quality of his responses. As the trial court and State Supreme Court found, the
record amply supports the prosecution's concerns, and Ayala cannot establish that the ex parte hearing prejudiced him. The Ninth
Circuit misunderstood the role of a federal court in a habeas case. That role is not to conduct de novo review of factual findings
and substitute the federal court's own opinions for the determination made on the scene by the trial judge. Pp. 2200 – 2202.
(2) The prosecution stated that it struck Gerardo O., a Hispanic man, because he had a poor grasp of English, his answers
suggested an unwillingness to impose the death penalty, and he did not appear to get along with other jurors. Each of these
reasons was amply supported by the record, and there is no basis for finding that the absence of defense counsel affected
the trial judge's evaluation of the strike. Ayala cannot establish that the ex parte hearing actually prejudiced him or that no
fairminded jurist could agree with the state court's application of Chapman. Once again, the Ninth Circuit's decision was based
on a misapplication of basic rules regarding harmless error. The inquiry is not whether the federal habeas court could definitively
say that the defense could make no winning arguments, but whether the evidence in the record raised “grave doubt[s]” about
whether the trial judge would have ruled differently. O'Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947.
That standard was not met in this case. Pp. 2202 – 2206.
(3) The prosecution stated that it struck Robert M., a Hispanic man, because it was concerned that he could not impose the
death penalty and because he had followed a controversial murder trial. Not only was the Ninth Circuit incorrect to suppose that
the presence of Ayala's counsel at the hearing would have made a difference in the trial court's evaluation of the strike, but the
Ninth Circuit failed to mention that defense counsel specifically addressed the issue during voir dire and reminded the judge
that Robert M. also made several statements favorable to the death penalty. Thus, the trial judge heard counsel's arguments
and concluded that the record supplied a legitimate basis for the prosecution's concern. That defense counsel did not have the
opportunity to repeat that argument does not create grave doubt about whether the trial court would have decided the issue
differently. Pp. 2205 – 2207.
(4) With regard to Ayala's Batson objection about the four remaining prospective jurors who were struck, he does not come close
to establishing “actual prejudice” under Brecht or that no fairminded jurist could agree with the California Supreme Court's
decision that excluding counsel was harmless. Pp. 2206 – 2208.
756 F.3d 656, reversed and remanded.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
2
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, and THOMAS, JJ., joined.
KENNEDY, J., and THOMAS, J., filed concurring opinions. SOTOMAYOR, J., filed a dissenting opinion, in which *2193
GINSBURG, BREYER, and KAGAN, JJ., joined.
Attorneys and Law Firms
Robin Urbanski, San Diego, CA, for Petitioner.
Anthony J. Dain, San Diego, CA, for Respondent.
Kamala D. Harris, Attorney General of California, Edward C. DuMont, Solicitor General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Senior Assistant Attorney General, Joshua A. Klein, Deputy Solicitor General, Holly
D. Wilkens, Supervising Deputy Attorney General, Robin Urbanski, Counsel of Record, Deputy Attorney General, State of
California Department of Justice, San Diego, CA, for Petitioner.
Anthony J. Dain, Counsel of Record, Robin L. Phillips, Procopio Cory Hargreaves & Savitch LLP, San Diego, CA, for
Respondent.
Opinion
Justice ALITO delivered the opinion of the Court.
A quarter-century after a California jury convicted Hector Ayala of triple murder and sentenced him to death, the Court of
Appeals for the Ninth Circuit granted Ayala's application for a writ of habeas corpus and ordered the State to retry or release
him. The Ninth Circuit's decision was based on the procedure used by the trial judge in ruling on Ayala's objections under
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to some of the prosecution's peremptory challenges
of prospective jurors. The trial judge allowed the prosecutor to explain the basis for those strikes outside the presence of the
defense so as not to disclose trial strategy. On direct appeal, the California Supreme Court found that if this procedure violated
any federal constitutional right, the error was harmless beyond a reasonable doubt. The Ninth Circuit, however, held that the
error was harmful.
The Ninth Circuit's decision was based on the misapplication of basic rules regarding harmless error. Assuming without deciding
that a federal constitutional error occurred, the error was harmless under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710,
123 L.Ed.2d 353 (1993), and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d).
I
A
Ayala's conviction resulted from the attempted robbery of an automobile body shop in San Diego, California, in April 1985.
The prosecution charged Ayala with three counts of murder, one count of attempted murder, one count of robbery, and three
counts of attempted robbery. The prosecution also announced that it would seek the death penalty on the murder counts.
Jury selection lasted more than three months, and during this time the court and the parties interviewed the prospective jurors
and then called back a subset for general voir dire. As part of the jury selection process, more than 200 potential jurors completed
a 77–question, 17–page questionnaire. Potential jurors were then questioned in court regarding their ability to follow the law.
Jurors who were not dismissed for cause were called back in groups for voir dire, and the parties exercised their peremptory
challenges.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
3
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
Each side was allowed 20 peremptories, and the prosecution used 18 of its allotment. It used seven peremptories to *2194 strike
all of the African–Americans and Hispanics who were available for service. Ayala, who is Hispanic, raised Batson objections
to those challenges.
Ayala first objected after the prosecution peremptorily challenged two African–Americans, Olanders D. and Galileo S. The trial
judge stated that these two strikes failed to establish a prima facie case of racial discrimination, but he nevertheless required the
prosecution to reveal the reasons for the strikes. The prosecutor asked to do this outside the presence of the defense so as not to
disclose trial strategy, and over Ayala's objection, the judge granted the request. The prosecution then offered several reasons
for striking Olanders D., including uncertainty about his willingness to impose the death penalty. The prosecution stated that
it dismissed Galileo S. primarily because he had been arrested numerous times and had not informed the court about all his
prior arrests. After hearing and evaluating these explanations, the judge concluded that the prosecution had valid, race-neutral
reasons for these strikes.
Ayala again raised Batson objections when the prosecution used peremptory challenges to dismiss two Hispanics, Gerardo
O. and Luis M. As before, the judge found that the defense had not made out a prima facie case, but ordered the prosecution
to reveal the reasons for the strikes. This was again done ex parte, but this time the defense did not expressly object. The
prosecution explained that it had challenged Gerardo O. and Luis M. in part because it was unsure that they could impose
the death penalty. The prosecution also emphasized that Gerardo O.'s English proficiency was limited and that Luis M. had
independently investigated the case. The trial court concluded a second time that the prosecution had legitimate race-neutral
reasons for the strikes.
Ayala raised Batson objections for a third and final time when the prosecution challenged Robert M., who was Hispanic; George
S., whose ethnicity was disputed; and Barbara S., who was African–American. At this point, the trial court agreed that Ayala
had made a prima facie Batson showing. Ayala's counsel argued that the strikes were in fact based on race. Ayala's counsel
contended that the challenged jurors were “not significantly different from the white jurors that the prosecution ha[d] chosen
to leave on the jury both in terms of their attitudes on the death penalty, their attitudes on the criminal justice system, and their
attitudes on the presumption of innocence.” App. 306. Ayala's counsel then reviewed the questionnaire answers and voir dire
testimony of Barbara S. and Robert M., as well as the statements made by three of the prospective jurors who had been the
subject of the prior Batson objections, Galileo S., Gerardo O., and Luis M. Counsel argued that their answers showed that they
could impose the death penalty. The trial court stated that it would hear the prosecution's response outside the presence of the
jury, and Ayala once more did not object to that ruling. The prosecution then explained that it had dismissed the prospective
jurors in question for several race-neutral reasons, including uncertainty that Robert M., George S., or Barbara S. would be
open to imposing the death penalty. The prosecution also emphasized (among other points) that Robert M. had followed a
controversial trial, that George S. had been a holdout on a prior jury, and that Barbara S. had given the impression during voir
dire that she was under the influence of drugs. The trial court concluded, for a third time, that the prosecution's peremptory
challenges were based on race-neutral criteria.
*2195 In August 1989, the jury convicted Ayala of all the charges except one of the three attempted robberies. With respect
to the three murder convictions, the jury found two special circumstances: Ayala committed multiple murders, and he killed
during the course of an attempted robbery. The jury returned a verdict of death on all three murder counts, and the trial court
entered judgment consistent with that verdict.
B
Ayala appealed his conviction and sentence, and counsel was appointed to represent him in January 1993. Between 1993 and
1999, Ayala filed 20 applications for an extension of time, 11 of which requested additional time to file his opening brief.
After the California Supreme Court eventually ruled that no further extensions would be granted, Ayala filed his opening brief
in April 1998, nine years after he was convicted. The State filed its brief in September 1998, and Ayala then asked for four
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
4
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
extensions of time to file his reply brief. After the court declared that it would grant him no further extensions, he filed his
reply brief in May 1999.
In August 2000, the California Supreme Court affirmed Ayala's conviction and death sentence. People v. Ayala, 24 Cal.4th
243, 99 Cal.Rptr.2d 532, 6 P.3d 193 (2000). In an opinion joined by five justices, the State Supreme Court rejected Ayala's
contention that the trial court committed reversible error by excluding the defense from part of the Batson hearing. The court
understood Ayala to challenge the peremptory strikes under both Batson and its state-law analogue, People v. Wheeler, 22
Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). The court first concluded that the prosecution had not offered matters of
trial strategy at the ex parte hearing and that, “as a matter of state law, it was [error]” to bar Ayala's attorney from the hearing.
24 Cal.4th, at 262, 99 Cal.Rptr.2d 532, 6 P.3d, at 203.
Turning to the question of prejudice, the court stated:
“We have concluded that error occurred under state law, and we have noted [the suggestion in United States v. Thompson,
827 F.2d 1254 (C.A.9 1987),] that excluding the defense from a Wheeler-type hearing may amount to a denial of due process.
We nonetheless conclude that the error was harmless under state law (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d
243] ), and that, if federal error occurred, it, too, was harmless beyond a reasonable doubt (Chapman v. California (1967)
386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] ) as a matter of federal law. On the record before us, we are confident that
the challenged jurors were excluded for proper, race-neutral reasons.” Id., at 264 [99 Cal.Rptr.2d 532], 6 P.3d, at 204.
The court then reviewed the prosecution's reasons for striking the seven prospective jurors and found that “[o]n this welldeveloped record, ... we are confident that defense counsel could not have argued anything substantial that would have changed
the court's rulings. Accordingly, the error was harmless.” Id., at 268, 99 Cal.Rptr.2d 532, 6 P.3d, at 207. The court concluded
that the record supported the trial judge's implicit determination that the prosecution's justifications were not fabricated and
were instead “grounded in fact.” Id., at 267, 99 Cal.Rptr.2d 532, 6 P.3d, at 206. And the court emphasized that the “trial court's
rulings in the ex parte hearing indisputably reflect both its familiarity with the record of voir dire of the challenged prospective
jurors and its critical assessment of the prosecutor's proffered justifications.” Id., at 266–267, 99 Cal.Rptr.2d 532, 6 P.3d, at 206.
*2196 The California Supreme Court also rejected Ayala's argument that his conviction should be vacated because most of
the questionnaires filled out by prospective jurors who did not serve had been lost at some point during the decade that had
passed since the end of the trial. The court wrote that “the record is sufficiently complete for us to be able to conclude that
[the prospective jurors who were the subject of the contested peremptories] were not challenged and excused on the basis of
forbidden group bias.” Id., at 270, 99 Cal.Rptr.2d 532, 6 P.3d, at 208. And even if the loss of the questionnaires was error under
federal or state law, the court held, the error was harmless under Chapman and its state-law analogue. Two justices of the State
Supreme Court dissented. We then denied certiorari. 532 U.S. 1029, 121 S.Ct. 1978, 149 L.Ed.2d 770 (2001).
C
After the California Supreme Court summarily denied a habeas petition, Ayala turned to federal court. He filed his initial federal
habeas petition in 2002, but then went back to state court to exhaust several claims. In December 2004, he filed the operative
federal petition and argued, among other things, that the ex parte hearings and loss of the questionnaires violated his rights
under the Sixth, Eighth, and Fourteenth Amendments.
In 2006, the District Court denied Ayala relief on those claims. The District Court read the decision of the California Supreme
Court to mean that the state court had not decided whether the ex parte proceedings violated federal law, and the District Court
expressed doubt “whether the trial court's procedure was constitutionally defective as a matter of clearly established Federal
law.” App. to Pet. for Cert. 145a. But even if such a violation occurred, the District Court held, the state court's finding of
harmlessness was not contrary to or an unreasonable application of clearly established law and thus could not be overturned
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
5
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
under AEDPA. The District Court also rejected Ayala's argument about the lost questionnaires, concluding that, even without
them, the record was sufficient to resolve Ayala's other claims.
In 2013, a divided panel of the Ninth Circuit granted Ayala federal habeas corpus relief and required California either to
release or retry him. Ayala v. Wong, 756 F.3d 656 (2014). Because Ayala's federal petition is subject to the requirements of
AEDPA, the panel majority began its analysis by inquiring whether the state court had adjudicated Ayala's claims on the merits.
Applying de novo review, 1 the panel held that the ex parte proceedings violated the Federal Constitution, and that the loss of
the questionnaires violated Ayala's federal due process rights if that loss deprived him of “the ability to meaningfully appeal
the denial of his Batson claim.” Id., at 671. The panel folded this inquiry into its analysis of the question whether the error
regarding the ex parte proceedings was harmless.
Turning to the question of harmlessness, the panel identified the applicable standard of review as that set out in Brecht and
added: “We apply the Brecht test without regard for the state court's harmlessness determination.” 756 F.3d, at 674 (internal
quotation marks omitted). 2 The *2197 panel used the following complicated formulation to express its understanding of
Brecht 's application to Ayala's claims: “If we cannot say that the exclusion of defense counsel with or without the loss of the
questionnaires likely did not prevent Ayala from prevailing on his Batson claim, then we must grant the writ.” 756 F.3d, at
676. Applying this test, the panel majority found that the error was not harmless, at least with respect to three of the seven
prospective jurors. The panel asserted that the absence of Ayala and his counsel had interfered with the trial court's ability to
evaluate the prosecution's proffered justifications for those strikes and had impeded appellate review, and that the loss of the
questionnaires had compounded this impairment.
Judge Callahan dissented. She explained that the California Supreme Court's decision that any federal error was harmless
constituted a merits adjudication of Ayala's federal claims. She then reviewed the prosecution's explanations for its contested
peremptory challenges and concluded that federal habeas relief was barred because “fairminded jurists can concur in the
California Supreme Court's determination of harmless error.” Id., at 706.
The Ninth Circuit denied rehearing en banc, but Judge Ikuta wrote a dissent from denial that was joined by seven other judges.
Like Judge Callahan, Judge Ikuta concluded that the California Supreme Court adjudicated the merits of Ayala's federal claims.
Instead of the panel's “de novo review of the record that piles speculation upon speculation,” she would have found that the
state court's harmlessness determination was not an unreasonable application of Chapman. 756 F.3d, at 723.
We granted certiorari. 574 U.S. ––––, 135 S.Ct. 401, 190 L.Ed.2d 288 (2014).
II
[1] Ayala contends that his federal constitutional rights were violated when the trial court heard the prosecution's justifications
for its strikes outside the presence of the defense, but we find it unnecessary to decide that question. We assume for the sake
of argument that Ayala's federal rights were violated, but that does not necessarily mean that he is entitled to habeas relief.
In the absence of “the rare type of error” that requires automatic reversal, relief is appropriate only if the prosecution cannot
demonstrate harmlessness. Glebe v. Frost, 574 U.S. ––––, ––––, 135 S.Ct. 429, 429, 190 L.Ed.2d 317 (2014) (per curiam ). The
Ninth Circuit did not hold—and Ayala does not now contend—that the error here falls into that narrow category, and therefore
Ayala is entitled to relief only if the error was not harmless.
[2] The test for whether a federal constitutional error was harmless depends on the procedural posture of the case. On direct
appeal, the harmlessness standard is the one prescribed in Chapman, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705: “[B]efore
a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a
reasonable doubt.” Id., at 24, 87 S.Ct. 824.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
6
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
[3] In a collateral proceeding, the test is different. For reasons of finality, comity, and federalism, habeas petitioners “are not
entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.’ ” Brecht, 507 U.S.,
at 637, 113 S.Ct. 1710 (quoting United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)). Under this
test, relief is proper only if the federal *2198 court has “grave doubt about whether a trial error of federal law had ‘substantial
and injurious effect or influence in determining the jury's verdict.’ ” O'Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992,
130 L.Ed.2d 947 (1995). There must be more than a “reasonable possibility” that the error was harmful. Brecht, supra, at 637,
113 S.Ct. 1710 (internal quotation marks omitted). The Brecht standard reflects the view that a “State is not to be put to th[e]
arduous task [of retrying a defendant] based on mere speculation that the defendant was prejudiced by trial error; the court
must find that the defendant was actually prejudiced by the error.” Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500,
142 L.Ed.2d 521 (1998) (per curiam ).
Because Ayala seeks federal habeas corpus relief, he must meet the Brecht standard, but that does not mean, as the Ninth Circuit
thought, that a state court's harmlessness determination has no significance under Brecht. In Fry v. Pliler, 551 U.S. 112, 120,
127 S.Ct. 2321, 168 L.Ed.2d 16 (2007), we held that the Brecht standard “subsumes” the requirements that § 2254(d) imposes
when a federal habeas petitioner contests a state court's determination that a constitutional error was harmless under Chapman.
The Fry Court did not hold—and would have had no possible basis for holding—that Brecht somehow abrogates the limitation
on federal habeas relief that § 2254(d) plainly sets out. While a federal habeas court need not “formal[ly]” apply both Brecht
and “AEDPA/Chapman,” AEDPA nevertheless “sets forth a precondition to the grant of habeas relief.” Fry, supra, at 119–
120, 127 S.Ct. 2321.
[4]
Under AEDPA, 28 U.S.C. § 2254(d):
“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication
of the claim—
“(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
“(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.”
Section 2254(d) thus demands an inquiry into whether a prisoner's “claim” has been “adjudicated on the merits” in state court;
if it has, AEDPA's highly deferential standards kick in. Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d
624 (2011).
[5] [6] At issue here is Ayala's claim that the ex parte portion of the Batson hearings violated the Federal Constitution.
There is no dispute that the California Supreme Court held that any federal error was harmless beyond a reasonable doubt under
Chapman, and this decision undoubtedly constitutes an adjudication of Ayala's constitutional claim “on the merits.” See, e.g.,
Mitchell v. Esparza, 540 U.S. 12, 17–18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam ). Accordingly, a federal habeas
court cannot grant Ayala relief unless the state court's rejection of his claim (1) was contrary to or involved an unreasonable
application of clearly established federal law, or (2) was based on an unreasonable determination of the facts. Because the
highly deferential AEDPA standard applies, we may not overturn the California Supreme Court's decision unless that court
applied Chapman “in an ‘objectively unreasonable’ manner.” Id., at 18, 124 S.Ct. 7 (quoting *2199 Lockyer v. Andrade, 538
U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). When a Chapman decision is reviewed under AEDPA, “a federal court
may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable.” Fry, supra, at 119,
127 S.Ct. 2321 (emphasis in original). And a state-court decision is not unreasonable if “ ‘fairminded jurists could disagree’
on [its] correctness.” Richter, supra, at 101, 131 S.Ct. 770 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct.
2140, 158 L.Ed.2d 938 (2004)). Ayala therefore must show that the state court's decision to reject his claim “was so lacking in
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
7
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” 562 U.S., at 103, 131 S.Ct. 770.
In sum, a prisoner who seeks federal habeas corpus relief must satisfy Brecht, and if the state court adjudicated his claim on the
merits, the Brecht test subsumes the limitations imposed by AEDPA. Fry, supra, at 119–120, 127 S.Ct. 2321.
III
With this background in mind, we turn to the question whether Ayala was harmed by the trial court's decision to receive the
prosecution's explanation for its challenged strikes without the defense present. In order for this argument to succeed, Ayala
must show that he was actually prejudiced by this procedure, a standard that he necessarily cannot satisfy if a fairminded
jurist could agree with the California Supreme Court's decision that this procedure met the Chapman standard of harmlessness.
Evaluation of these questions requires consideration of the trial court's grounds for rejecting Ayala's Batson challenges.
A
[7] [8] [9] [10] Batson held that the Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors from
exercising peremptory challenges on the basis of race. 476 U.S., at 89, 106 S.Ct. 1712. When adjudicating a Batson claim, trial
courts follow a three-step process:
“First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race;
second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question;
and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful
discrimination.” Snyder v. Louisiana, 552 U.S. 472, 476–477 [128 S.Ct. 1203, 170 L.Ed.2d 175] (2008) (internal quotation
marks and alterations omitted).
The opponent of the strike bears the burden of persuasion regarding racial motivation, Purkett v. Elem, 514 U.S. 765, 768, 115
S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam ), and a trial court finding regarding the credibility of an attorney's explanation
of the ground for a peremptory challenge is “entitled to ‘great deference,’ ” Felkner v. Jackson, 562 U.S. 594, 598, 131 S.Ct.
1305, 179 L.Ed.2d 374 (2011) (per curiam ) (quoting Batson, 476 U.S., at 98, n. 21, 106 S.Ct. 1712). On direct appeal, those
findings may be reversed only if the trial judge is shown to have committed clear error. Rice v. Collins, 546 U.S. 333, 338,
126 S.Ct. 969, 163 L.Ed.2d 824 (2006). Under AEDPA, even more must be shown. A federal habeas court must accept a statecourt finding unless it was based on “an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” § 2254(d)(2). “State-court factual findings, moreover, are presumed correct; the petitioner has *2200 the
burden of rebutting the presumption by ‘clear and convincing evidence.’ ” Collins, supra, at 338–339, 126 S.Ct. 969 (quoting
§ 2254(e)(1)).
In this case, Ayala challenged seven of the prosecution's peremptory challenges. As explained above, the Ninth Circuit granted
relief based on the dismissal of three potential jurors. The dissent discusses only one, Olanders D. We will devote most of
our analysis to the three individuals discussed by the Ninth Circuit, but we hold that any error was harmless with respect to
all seven strikes.
B
1
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
8
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
Ayala first contests the prosecution's decision to challenge Olanders D., an African–American man. The prosecution stated
that its “primary” reason for striking Olanders D. was uncertainty about whether he could impose the death penalty, and the
prosecutor noted that Olanders D. had written on his questionnaire that he did not “believe in the death penalty.” 50 Reporter's
Tr. on Appeal 6185 (hereinafter Tr.). Providing additional reasons for this strike, the prosecutor first stated that Olanders D.'s
responses “did not make a lot of sense,” “were not thought out,” and “demonstrate[d] a lack of ability to express himself well.”
App. 283. The prosecutor also voiced doubt that Olanders D. “could actively participate in a meaningful way in deliberations
with other jurors” and might have lacked the “ability to fit in with a cohesive group of 12 people.” Ibid.
The trial court concluded that the strike was race-neutral. The judge stated: “Certainly with reference to whether or not he
would get along with 12 people, it may well be that he would get along very well with 12 people. I think the other observations
of counsel are accurate and borne out by the record.” 50 Tr. 6186. The California Supreme Court found that the evidence of
Olanders D.'s views on the death penalty provided adequate support for the trial judge's finding that the strike exercised against
him was not based on race, and the court further found that defense counsel's presence would not have affected the outcome
of the Batson hearing. The Ninth Circuit reversed, but its decision rested on a misapplication of the applicable harmless-error
standards.
2
[11] As the trial court and the State Supreme Court found, Olanders D.'s voir dire responses amply support the prosecution's
concern that he might not have been willing to impose the death penalty. During voir dire, Olanders D. acknowledged that he
wrote on his questionnaire, “ ‘I don't believe in the death penalty,’ ” App. 179, and he agreed that he had at one time “thought
that [the death penalty] was completely wrong,” id., at 177. Although he stated during the voir dire that he had reconsidered his
views, it was reasonable for the prosecution and the trial court to find that he did not clearly or adequately explain the reason
or reasons for this change. When asked about this, Olanders D. gave a vague and rambling reply: “Well, I think it's—one thing
would be the—the—I mean, examining it more closely, I think, and becoming more familiar with the laws and the—and the
behavior, I mean, the change in the people, I think. All of those things contributed to the changes.” Id., at 178.
[12] The Ninth Circuit reversed because it speculated that defense counsel, if present when the prosecution explained the basis
for this strike, “could have pointed to seated white jurors who had expressed similar or greater hesitancy” in imposing the death
penalty. 756 F.3d, at 678. The Ninth Circuit wrote that a *2201 seated white juror named Ana L. was “indistinguishable from
Olanders D. in this regard” and that she had “made almost precisely the same statement in her questionnaire.” Ibid.
The responses of Olanders D. and Ana L., however, were by no means “indistinguishable.” Olanders D. initially voiced
unequivocal opposition to the death penalty, stating flatly: “I don't believe in the death penalty.” He also revealed that he had
once thought it was “completely wrong.” Ana L., by contrast, wrote on the questionnaire that she “probably would not be
able to vote for the death penalty,” App. 109 (emphasis added), and she then later said at voir dire that she could vote for a
verdict of death.
[13] In a capital case, it is not surprising for prospective jurors to express varying degrees of hesitancy about voting for a death
verdict. Few are likely to have experienced a need to make a comparable decision at any prior time in their lives. As a result,
both the prosecution and the defense may be required to make fine judgment calls about which jurors are more or less willing
to vote for the ultimate punishment. These judgment calls may involve a comparison of responses that differ in only nuanced
respects, as well as a sensitive assessment of jurors' demeanor. We have previously recognized that peremptory challenges
“are often the subjects of instinct,” Miller–El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (citing
Batson, 476 U.S., at 106, 106 S.Ct. 1712 (Marshall, J., concurring)), and that “race-neutral reasons for peremptory challenges
often invoke a juror's demeanor,” Snyder, 552 U.S., at 477, 128 S.Ct. 1203. A trial court is best situated to evaluate both the
words and the demeanor of jurors who are peremptorily challenged, as well as the credibility of the prosecutor who exercised
those strikes. As we have said, “these determinations of credibility and demeanor lie peculiarly within a trial judge's province,”
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
9
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
and “in the absence of exceptional circumstances, we [will] defer to the trial court.” Ibid. (alterations and internal quotation
marks omitted). “Appellate judges cannot on the basis of a cold record easily second-guess a trial judge's decision about likely
motivation.” Collins, 546 U.S., at 343, 126 S.Ct. 969 (BREYER, J., concurring).
The upshot is that even if “[r]easonable minds reviewing the record might disagree about the prosecutor's credibility, ... on
habeas review that does not suffice to supersede the trial court's credibility determination.” Id., at 341–342, 126 S.Ct. 969
(majority opinion). Here, any similarity between the responses of Olanders D. and Ana L. is insufficient to compel an inference
of racial discrimination under Brecht or AEDPA.
[14] Ayala contends that the presence of defense counsel might have made a difference because defense counsel might have
been able to identify white jurors who were not stricken by the prosecution even though they had “expressed similar or greater
hesitancy” about the death penalty. We see no basis for this argument. The questionnaires of all the jurors who sat and all the
alternates are in the record, and Ana L., whom we just discussed, is apparently the white juror whose answers come the closest
to those of Olanders D. Since neither Ayala nor the Ninth Circuit identified a white juror whose statements better support their
argument, there is no reason to think that defense counsel could have pointed to a superior comparator at the ex parte proceeding.
3
In rejecting the argument that the prosecutor peremptorily challenged Olanders *2202 D. because of his race, the California
Supreme Court appears to have interpreted the prosecutor's explanation of this strike to mean that Olanders D.'s views on the
death penalty were alone sufficient to convince him to exercise a strike, see 24 Cal.4th, at 266, 99 Cal.Rptr.2d 532, 6 P.3d, at
206, and this was certainly an interpretation of the record that must be sustained under 28 U.S.C. § 2254(d)(2). As a result,
it is not necessary for us to consider the prosecutor's supplementary reason for this strike—the poor quality of Olanders D.'s
responses—but in any event, the Ninth Circuit's evaluation of this reason is also flawed.
The Ninth Circuit wrote that its independent “review of the voir dire transcript reveal[ed] nothing that supports the prosecution's
claim: Olanders D.'s answers were responsive and complete.” 756 F.3d, at 679. The record, however, provides sufficient support
for the trial court's determination. Olanders D.'s incoherent explanation during voir dire of the reasons for his change of opinion
about the death penalty was quoted above. He also provided a chronology of the evolution of his views on the subject that did
not hold together. He stated that he had been “completely against the death sentence” 10 years earlier but seemed to suggest
that his views had changed over the course of the intervening decade. See App. 176–177. However, on the questionnaire, which
he had completed just a month before the voir dire, he wrote unequivocally: “I don't believe in the death penalty.” Id., at 179.
And then, at the time of the voir dire, he said that he would be willing to impose the death penalty in some cases. Id., at 180.
He explained his answer on the questionnaire as follows: “I answered that kind of fast [.] [N]ormally, I wouldn't answer that
question that way, but I mean, I really went through that kind of fast. I should have done better than that.” Id., at 179–180. These
answers during voir dire provide more than sufficient support for the prosecutor's observation, which the trial court implicitly
credited, that Olanders D.'s statements “did not make a lot of sense,” “were not thought out,” and “demonstrate[d] a lack of
ability to express himself well.”
[15] In ordering federal habeas relief based on their assessment of the responsiveness and completeness of Olanders D.'s
answers, the members of the panel majority misunderstood the role of a federal court in a habeas case. The role of a federal
habeas court is to “ ‘guard against extreme malfunctions in the state criminal justice systems,’ ” Richter, 562 U.S., at 102–
103, 131 S.Ct. 770 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J.,
concurring in judgment)), not to apply de novo review of factual findings and to substitute its own opinions for the determination
made on the scene by the trial judge.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
10
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
C
Ayala next challenges the prosecution's use of a peremptory challenge to strike Gerardo O., a Hispanic man. The prosecution
offered three reasons for this strike: Gerardo O. had a poor grasp of English; his answers during voir dire and on his questionnaire
suggested that he might not be willing to impose the death penalty; and he did not appear to get along with the other prospective
jurors. The trial judge accepted this explanation, as did the State Supreme Court.
The Ninth Circuit, however, rejected the state courts' determinations based on speculation that defense counsel, if present at
the in camera hearing, “likely could have called into question all of the prosecution's stated reasons for striking Gerardo O.”
756 F.3d, at 680. The Ninth Circuit *2203 thought that it could grant Ayala relief simply because it “[could not] say that
Ayala would not have shown that the trial court would or should have determined that the prosecution's strike of Gerardo O.
violated Batson.” Id., at 682. But that is not the test. The inquiry under Brecht is not whether the federal habeas court could
definitively say that there were no winning arguments that the defense could have made. Instead, the evidence in the record
must raise “grave doubt[s]” about whether the trial judge would have ruled differently. O'Neal, 513 U.S., at 436, 115 S.Ct. 992.
This requires much more than a “reasonable possibility” that the result of the hearing would have been different. Brecht, 507
U.S., at 637, 113 S.Ct. 1710 (internal quotation marks omitted). And on the record in this case, Ayala cannot establish actual
prejudice or that no fairminded jurist could agree with the state court's application of Chapman.
[16] We begin with the prosecution's explanation that it challenged Gerardo O. because of his limited English proficiency.
During voir dire, Gerardo O. acknowledged that someone else had written the answers for him on his questionnaire “[b]ecause
I couldn't—I cannot read—I cannot spell that well.” App. 163. He added that he “didn't get” some of the words on the
questionnaire. Ibid. Gerardo O.'s testimony also revealed that he might well have been unable to follow what was said at trial.
When asked whether he could understand spoken English, he responded: “It depends if you make long words. If you make—
if you go—if you say it straight out, then I might understand. If you beat around the bush, I won't.” Id., at 166. At that point,
defense counsel and Gerardo O. engaged in a colloquy that suggests that defense counsel recognized that he lacked the ability
to understand words not used in basic everyday speech, “legal words,” and rapid speech in English:
“Q: I'll try not to talk—use any legal words or lawyer talk—
“A: Okay.
“Q: —and talk regular with you. If you don't understand anything I say, stop me and tell me, okay?
“A: Okay.
“Q: If you're selected as a juror during the trial, and you know you're serving as a juror and listening to witnesses, can we
have your promise that if a witness uses a word you don't understand, you'll put your hand up and let us know?
“A: Yeah.
.....
“Q: There's one more problem that you're going to have with me, and that is that sometimes ... I talk real fast....” Id., at
166–167.
It is understandable for a prosecutor to strike a potential juror who might have difficulty understanding English. 3 The jurors
who were ultimately selected heard many days of testimony, and the instructions at both the guilt and the penalty phases included
“legal words” and words not common in everyday speech. The prosecution had an obvious reason to worry *2204 that service
on this jury would have strained Gerardo O.'s linguistic capability.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
11
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
The Ninth Circuit reached a contrary conclusion by distorting the record and the applicable law. The Ninth Circuit first suggested
that Gerardo O.'s English-language deficiencies were limited to reading and writing, 756 F.3d, at 680, but as the portions of
the voir dire quoted above make clear, that was not true; the record shows that his ability to understand spoken English was
also limited. The Ninth Circuit then suggested that “[t]he prosecution's purported reason for striking Gerardo O. ... was directly
related to his status as someone who spoke Spanish as his first language,” ibid., but the prosecutor voiced no concern about
Gerardo O.'s ability to speak Spanish or about the fact that Spanish was his first language. The prosecution's objection concerned
Gerardo O.'s limited proficiency in English. The Ninth Circuit quoted the following statement from Hernandez v. New York,
500 U.S. 352, 363, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion): “ ‘[T]he prosecutor's frank admission that his
ground for excusing th[is] juror [ ] related to [his] ability to speak and understand Spanish raised a plausible, though not a
necessary, inference that language might be a pretext for what in fact [was a] race-based peremptory challenge[ ].’ ” 756 F.3d, at
680 (alterations in original). This statement, however, did not concern a peremptory exercised due to a prospective juror's lack
of English proficiency. Instead, it concerned the dismissal of Spanish-speaking members of the venire for fear that, if seated,
they might not follow the English translation of testimony given in Spanish. See 500 U.S., at 360, 111 S.Ct. 1859. The Ninth
Circuit's decision regarding Gerardo O. was thus based on a misreading of the record and a distortion of our case law. And
neither Ayala nor the Ninth Circuit has identified anything that defense counsel might have done at the ex parte hearing to show
that the prosecutor's concern about Gerardo O.'s limited English proficiency was pretextual.
[17] The prosecution's second proffered reason for striking Gerardo O. was concern about his willingness to impose the death
penalty, and as the trial court found, this observation was also supported by the record. Indeed, when asked in voir dire how
he felt about imposing the death penalty, Gerardo O. responded that he was “[k]ind of shaky about it.... I'm not too sure if I
can take someone else's life in my hands and say that; say, you know, ‘death,’ or something.” App. 168. In response to another
question about his thoughts on the death penalty, he replied: “I don't know yet. It's kind of hard, you know, to pick it up like
that and say how I feel about the death penalty.” 15 Tr. 1052. Answering a question about whether his thoughts on the death
penalty would affect how he viewed the evidence presented at trial, he responded, “I don't know, sir, to tell you the truth.” App.
165. And when asked if he had “any feeling that [he] would be unable to vote for the death penalty if [he] thought it was a case
that called for it,” Gerardo O. responded once again, “I don't know.” 15 Tr. 1043. While Gerardo O. did say at one point that
he might be willing to impose the death penalty, he qualified that statement by adding that he would be comforted by the fact
that “there's eleven more other persons on the jury.” App. 170.
What we said above regarding jurors who express doubts about their openness to a death verdict applies as well here. The
prosecution's reluctance to take a chance that Gerardo O. would ultimately be willing to consider the death penalty in accordance
with state law did not compel *2205 the trial judge to find that the strike of Gerardo O. was based on race.
[18] Nor is there a basis for finding that the absence of defense counsel affected the trial judge's evaluation of the sincerity of
this proffered ground for the strike. Defense counsel had a full opportunity during voir dire to create a record regarding Gerardo
O.'s openness to the death penalty. And defense counsel had the opportunity prior to the ex parte proceeding on the Gerardo
O. strike to compare the minority jurors dismissed by the prosecution with white jurors who were seated. Counsel argued that
the answers on the death penalty given by the minority jurors were “not significantly different from [those of] the white jurors
that the prosecution ha[d] chosen to leave on the jury.” Id., at 306. The trial judge asked counsel for “particulars,” and counsel
discussed Gerardo O., albeit briefly. Id., at 307–308. Thus, there is no reason to believe that counsel could have made a more
persuasive argument at the ex parte proceeding than he made during this exchange.
The prosecution's final reason for striking Gerardo O. was that he appeared to be “a standoffish type of individual” whose “dress
and ... mannerisms ... were not in keeping with the other jurors” and who “did not appear to be socializing or mixing with any
of the other jurors.” Id., at 298. The trial judge did not dispute that the prosecution's reflections were borne out by the record.
The California Supreme Court affirmed and also emphasized that “the trial court's rulings in the ex parte hearing indisputably
reflect both its familiarity with the record of voir dire of the challenged prospective jurors and its critical assessment of the
prosecutor's proffered justifications.” 24 Cal.4th, at 266–267, 99 Cal.Rptr.2d 532, 6 P.3d, at 206.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
12
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
[19] In light of the strength of the prosecution's first two reasons for striking Gerardo O., it is not at all clear that the prosecution
proffered this final reason as an essential factor in its decision to strike, but in any event, there is no support for the suggestion
that Ayala's attorney, if allowed to attend the ex parte hearing, would have been able to convince the judge that this reason
was pretextual. The Ninth Circuit, however, was content to speculate about what might have been. Mixing guesswork with
armchair sociology, the Ninth Circuit mused that “[i]t is likely that Gerardo O.'s dress and mannerisms were distinctly Hispanic.
Perhaps in the late 1980's Hispanic males in San Diego County were more likely than members of other racial or ethnic groups
in the area to wear a particular style or color of shirt, and Gerardo O. was wearing such a shirt.” 756 F.3d, at 680–681. As
for the prosecution's observation that Gerardo O. did not socialize with other jurors, the Ninth Circuit posited that, “perhaps,
unbeknownst to the trial judge, Gerardo O. did ‘socializ[e] or mix[ ]’ with a number of other jurors, and had even organized a
dinner for some of them at his favorite Mexican restaurant.” Id., at 681.
This is not how habeas review is supposed to work. The record provides no basis for the Ninth Circuit's flight of fancy. Brecht
requires more than speculation about what extrarecord information defense counsel might have mentioned. And speculation of
that type is not enough to show that a State Supreme Court's rejection of the argument regarding Gerardo O. was unreasonable.
D
The final prospective juror specifically discussed in the Ninth Circuit's decision was Robert M., who is Hispanic. The
prosecution's primary proffered reason for *2206 striking Robert M. was concern that he would not impose the death penalty,
though the prosecution added that it was troubled that he had followed the Sagon Penn case, a high-profile prosecution in San
Diego in which an alleged murderer was acquitted amid allegations of misconduct by police and prosecutors. In addition, the
prosecution also explained to the trial court that Robert M. scored poorly on its 10–point scale for evaluating prospective jurors.
The trial court accepted the prosecutor's explanation of the strike.
[20] With respect to the prosecution's concern that Robert M. might not be willing to impose the death penalty, the Ninth
Circuit found that defense counsel, if permitted to attend the in camera proceeding, could have compared Robert M.'s statements
about the death penalty to those of other jurors and could have reminded the judge that Robert M. had “repeatedly stated during
voir dire that he believed in the death penalty and could personally vote to impose it.” 756 F.3d, at 682. But as with Olanders
D. and Gerardo O., we cannot say that the prosecution had no basis for doubting Robert M.'s willingness to impose the death
penalty. For example, when asked at one point whether he could vote for death, Robert M. responded: “Well, I've though[t]
about that, but it's a difficult question, and yeah, it is difficult for me to say, you know, one way or the other. I believe in it,
but for me to be involved in it is—is hard. It's hard to accept that aspect of it, do you know what I mean?” App. 149–150. In
response to another question, he said: “It would be hard, but I think I could, yes. It's—it's hard to say, you know—and I don't
care who the person is—to say that they have to put somebody away, you know. It's very hard.” Id., at 154. These are hardly
answers that would inspire confidence in the minds of prosecutors in a capital case.
[21] While the Ninth Circuit argued that defense counsel's absence at the in camera hearing prejudiced the trial judge's ability
to assess this reason for the strike of Robert M., the Ninth Circuit failed to mention that defense counsel specifically addressed
this issue during voir dire. At that time, he pointedly reminded the judge that Robert M. had made several statements during voir
dire that were favorable to the death penalty. Id., at 307. The trial judge thus heard defense counsel's arguments but nevertheless
concluded that the record supplied a basis for a legitimate concern about whether Robert M. could impose the death penalty.
That Ayala's attorney did not have the opportunity to repeat this same argument once more at the in camera proceeding does
not create grave doubt about whether the trial court would have decided the issue differently.
[22] As for the prosecution's second proffered reason for striking Robert M.—that he had followed the Sagon Penn case 4 —
the Ninth Circuit placed great emphasis on the fact that a seated white juror had followed a different murder trial, that of Robert
Alton Harris. 5 But the Penn and Harris cases were quite different. Harris was convicted while Penn was acquitted; and since
the Harris case was much older, the experience of following it was less likely to have an effect at the time of the trial in this case.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
13
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
E
Ayala raised a Batson objection about the prosecution's use of peremptory challenges on four additional jurors, George S.,
*2207 Barbara S., Galileo S., and Luis M. The Ninth Circuit did not address these prospective jurors at length, and we need not
dwell long on them. With respect to all four of these prospective jurors, we conclude that any constitutional error was harmless.
Of these four additional jurors, Ayala's brief in this Court develops an argument with respect to only two, George S. and Barbara
S. And while Ayala's attorney claimed that George S. was Hispanic, the prosecutor said that he thought that George S. was
Greek. In any event, the prosecution offered several reasons for striking George S. The prosecutor noted that one of his responses
“was essentially, ‘you probably don't want me to be a juror on this case.’ ” Id., at 312. The prosecutor was also concerned
about whether he would vote for death or even a life sentence and whether he would follow the law as opposed to his personal
religious beliefs. In addition, the prosecutor noted that George S. had previously been the sole holdout on a jury and that his prior
application to be a police officer had been rejected, for reasons that were not clear. The trial court accepted these explanations.
[23] [24] Ayala contests only two of these justifications. He quibbles that George S. had not been a “ ‘holdout,’ ” but
instead had been the dissenting juror in a civil case on which unanimity was not required. This observation does not render the
prosecution's proffered justification “false or pretextual.” Brief for Respondent 46. The fact that George S. had been willing to
dissent from a jury verdict could reasonably give a prosecutor pause in a capital case since a single holdout juror could prevent
a guilty verdict or death sentence. The most that Ayala can establish is that reasonable minds can disagree about whether the
prosecution's fears were well founded, but this does not come close to establishing “actual prejudice” under Brecht. Nor does
it meet the AEDPA standard. Ayala also points out that a seated white juror, Charles C., had been rejected by a police force,
but George S. admitted that he had applied to law enforcement because he was “trying to get out of the Army,” App. 222, and
the reasons for his rejection were not clear. Charles C., by contrast, had received a qualifying score on a law enforcement exam
but was not hired because a position was not available.
[25] As for Barbara S., the prosecution struck her because, during voir dire, she appeared to be “under the influence of drugs”
and disconnected from the proceedings. Id., at 314. The prosecution emphasized that she had “an empty look in her eyes, slow
responses, a lack of really being totally in tune with what was going on.” Ibid. It added that she appeared “somewhat angry,”
“manifest[ed] a great deal of nervousness,” and seemed like someone who would be unlikely to closely follow the trial. Ibid.
The trial judge thought that Barbara S. appeared nervous rather than hostile, but he agreed that she gave incomplete answers
that were sometimes “non sequiturs.” Id., at 315. He concluded, “I certainly cannot quarrel ... with your subjective impression,
and the use of your peremptory challenge based upon her individual manifestation, as opposed to her ethnicity.” Ibid. Ayala
points to the trial court's disagreement with the prosecutor's impression that Barbara S. was hostile, but this ruling illustrates
the trial judge's recollection of the demeanor of the prospective jurors and his careful evaluation of each of the prosecutor's
proffered reasons for strikes. And the fact that the trial judge's impression of Barbara S.'s demeanor was somewhat different
from the prosecutor's hardly shows that the *2208 prosecutor's reasons were pretextual. It is not at all unusual for individuals
to come to different conclusions in attempting to read another person's attitude or mood.
IV
The pattern of peremptory challenges in this case was sufficient to raise suspicions about the prosecution's motives and to call
for the prosecution to explain its strikes. As we have held, the Fourteenth Amendment prohibits a prosecutor from striking
potential jurors based on race. Discrimination in the jury selection process undermines our criminal justice system and poisons
public confidence in the evenhanded administration of justice.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
14
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
In Batson, this Court adopted a procedure for ferreting out discrimination in the exercise of peremptory challenges, and this
procedure places great responsibility in the hands of the trial judge, who is in the best position to determine whether a peremptory
challenge is based on an impermissible factor. This is a difficult determination because of the nature of peremptory challenges:
They are often based on subtle impressions and intangible factors. In this case, the conscientious trial judge determined that the
strikes at issue were not based on race, and his judgment was entitled to great weight. On appeal, five justices of the California
Supreme Court carefully evaluated the record and found no basis to reverse. A Federal District Judge denied federal habeas
relief, but a divided panel of the Ninth Circuit reversed the District Court and found that the California Supreme Court had
rendered a decision with which no fairminded jurist could agree.
For the reasons explained above, it was the Ninth Circuit that erred. The exclusion of Ayala's attorney from part of the Batson
hearing was harmless error. There is no basis for finding that Ayala suffered actual prejudice, and the decision of the California
Supreme Court represented an entirely reasonable application of controlling precedent.
***
The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice KENNEDY, concurring.
My join in the Court's opinion is unqualified; for, in my view, it is complete and correct in all respects. This separate writing
responds only to one factual circumstance, mentioned at oral argument but with no direct bearing on the precise legal questions
presented by this case.
In response to a question, respondent's counsel advised the Court that, since being sentenced to death in 1989, Ayala has
served the great majority of his more than 25 years in custody in “administrative segregation” or, as it is better known, solitary
confinement. Tr. of Oral Arg. 43–44. Counsel for petitioner did not have a clear opportunity to enter the discussion, and the
precise details of respondent's conditions of confinement are not established in the record. Yet if his solitary confinement follows
the usual pattern, it is likely respondent has been held for all or most of the past 20 years or more in a windowless cell no larger
than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity
for conversation or interaction with anyone. Ibid.; see also Wilkinson v. Austin, 545 U.S. 209, 218, 125 S.Ct. 2384, 162 L.Ed.2d
174 (2005); Amnesty International, Entombed: Isolation in the U.S. Federal Prison System (2014). It is estimated that 25,000
inmates in the United States are currently serving *2209 their sentence in whole or substantial part in solitary confinement,
many regardless of their conduct in prison. Ibid.
The human toll wrought by extended terms of isolation long has been understood, and questioned, by writers and commentators.
Eighteenth-century British prison reformer John Howard wrote “that criminals who had affected an air of boldness during their
trial, and appeared quite unconcerned at the pronouncing sentence upon them, were struck with horror, and shed tears when
brought to these darksome solitary abodes.” The State of the Prisons in England and Wales 152 (1777). In literature, Charles
Dickens recounted the toil of Dr. Manette, whose 18 years of isolation in One Hundred and Five, North Tower, caused him,
even years after his release, to lapse in and out of a mindless state with almost no awareness or appreciation for time or his
surroundings. A Tale of Two Cities (1859). And even Manette, while imprisoned, had a work bench and tools to make shoes,
a type of diversion no doubt denied many of today's inmates.
One hundred and twenty-five years ago, this Court recognized that, even for prisoners sentenced to death, solitary confinement
bears “a further terror and peculiar mark of infamy.” In re Medley, 134 U.S. 160, 170, 10 S.Ct. 384, 33 L.Ed. 835 (1890); see
also id., at 168, 10 S.Ct. 384 (“A considerable number of the prisoners fell, after even a short [solitary] confinement, into a semi-
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
15
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
fatuous condition ... and others became violently insane; others, still, committed suicide”). The past centuries' experience and
consideration of this issue is discussed at length in texts such as The Oxford History of the Prison: The Practice of Punishment
in Western Society (1995), a joint disciplinary work edited by law professor Norval Morris and professor of medicine and
psychiatry David Rothman that discusses the deprivations attendant to solitary confinement. Id., at 184, 10 S.Ct. 384.
Yet despite scholarly discussion and some commentary from other sources, the condition in which prisoners are kept simply
has not been a matter of sufficient public inquiry or interest. To be sure, cases on prison procedures and conditions do reach
the courts. See, e.g., Brown v. Plata, 563 U.S. ––––, 131 S.Ct. 1910, 179 L.Ed.2d 969 (2011); Hutto v. Finney, 437 U.S. 678,
685, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (“Confinement in a prison or in an isolation cell is a form of punishment subject to
scrutiny under the Eighth Amendment”); Weems v. United States, 217 U.S. 349, 365–367, 30 S.Ct. 544, 54 L.Ed. 793 (1910).
Sentencing judges, moreover, devote considerable time and thought to their task. There is no accepted mechanism, however,
for them to take into account, when sentencing a defendant, whether the time in prison will or should be served in solitary. So
in many cases, it is as if a judge had no choice but to say: “In imposing this capital sentence, the court is well aware that during
the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will
bring you to the edge of madness, perhaps to madness itself.” Even if the law were to condone or permit this added punishment,
so stark an outcome ought not to be the result of society's simple unawareness or indifference.
Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication
of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of
mind. It seems fair to suggest that, in decades past, the public may have assumed lawyers and judges were engaged in a careful
assessment of correctional *2210 policies, while most lawyers and judges assumed these matters were for the policymakers
and correctional experts.
There are indications of a new and growing awareness in the broader public of the subject of corrections and of solitary
confinement in particular. See, e.g., Gonnerman, Before the Law, The New Yorker, Oct. 6, 2014, p. 26 (detailing multiyear
solitary confinement of Kalief Browder, who was held—but never tried—for stealing a backpack); Schwirtz & Winerip, Man,
Held at Rikers for 3 Years Without Trial, Kills Himself, N.Y. Times, June 9, 2015, p. A18. And penology and psychology
experts, including scholars in the legal academy, continue to offer essential information and analysis. See, e.g., Simon & Sparks,
Punishment and Society: The Emergence of an Academic Field, in The SAGE Handbook of Punishment and Society (2013);
see also Venters et al., Solitary Confinement and Risk of Self–Harm Among Jail Inmates, 104 Am. J. Pub. Health 442 (March
2014); Metzner & Fellner, Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, 38 J. Am.
Academy Psychiatry and Law 104–108 (2010).
These are but a few examples of the expert scholarship that, along with continued attention from the legal community, no doubt
will aid in the consideration of the many issues solitary confinement presents. And consideration of these issues is needed. Of
course, prison officials must have discretion to decide that in some instances temporary, solitary confinement is a useful or
necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this
Court suggested over a century ago: Years on end of near-total isolation exact a terrible price. See, e.g., Grassian, Psychiatric
Effects of Solitary Confinement, 22 Wash. U.J.L. & Pol'y 325 (2006) (common side-effects of solitary confinement include
anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors). In a case that presented the
issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative
systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.
Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its prisons.” The
Yale Book of Quotations 210 (F. Shapiro ed. 2006). There is truth to this in our own time.
Justice THOMAS, concurring.
I join the Court's opinion explaining why Ayala is not entitled to a writ of habeas corpus from this or any other federal court. I
write separately only to point out, in response to the separate opinion of Justice KENNEDY, that the accommodations in which
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
16
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
Ayala is housed are a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio
Zamora, and Jose Luis Rositas, now rest. And, given that his victims were all 31 years of age or under, Ayala will soon have
had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.
Justice SOTOMAYOR, with whom Justice GINSBURG, Justice BREYER, and Justice KAGAN join, dissenting.
At Hector Ayala's trial, the prosecution exercised its peremptory strikes to dismiss all seven of the potential black and Hispanic
jurors. In his federal habeas petition, Ayala challenged the state trial court's failure to permit his attorneys to participate
in hearings regarding the legitimacy of the prosecution's alleged race-neutral reasons for its strikes. See Batson *2211 v.
Kentucky, 476 U.S. 79, 97–98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Court assumes that defense counsel's exclusion
from these proceedings violated Ayala's constitutional rights, but concludes that the Ninth Circuit erred in granting habeas
relief because there is insufficient reason to believe that counsel could have convinced the trial court to reject the prosecution's
proffered reasons. I respectfully dissent. Given the strength of Ayala's prima facie case and the comparative juror analysis his
attorneys could have developed if given the opportunity to do so, little doubt exists that counsel's exclusion from Ayala's Batson
hearings substantially influenced the outcome.
I
My disagreement with the Court does not stem from its discussion of the applicable standard of review, which simply restates the
holding of Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). Fry rejected the argument that the Antiterrorism
and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254, compels federal courts to apply any standard other than that set
forth in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), when assessing the harmlessness of
a constitutional error on habeas review. 551 U.S., at 120, 127 S.Ct. 2321. Brecht, in turn, held that the harmlessness standard
federal courts must apply in collateral proceedings is more difficult to meet than the “ ‘beyond a reasonable doubt’ ” standard
applicable on direct review. 507 U.S., at 622–623, 113 S.Ct. 1710 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct.
824, 17 L.Ed.2d 705 (1967)). More specifically, under Brecht, a federal court can grant habeas relief only when it concludes
that a constitutional error had a “ ‘substantial and injurious effect or influence’ ” on either a jury verdict or a trial court decision.
507 U.S., at 623, 113 S.Ct. 1710. Later, O'Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995), clarified
that this standard is satisfied when a reviewing judge “is in grave doubt about whether” the error is harmless; that is, when
“the matter is so evenly balanced that [a judge] feels himself in virtual equipoise as to the harmlessness of the error.” Id., at
435, 115 S.Ct. 992 (emphasis deleted). See also ante, at 2197 – 2198 (quoting O'Neal, 513 U.S., at 436, 115 S.Ct. 992). Put
differently, when a federal court is in equipoise as to whether an error was actually prejudicial, it must “treat the error, not as if
it were harmless, but as if it affected the verdict (i.e., as if it had a ‘substantial and injurious effect or influence in determining
the jury's verdict’).” O'Neal, 513 U.S., at 435, 115 S.Ct. 992.
In addition to confirming the Brecht standard's continued vitality, Fry established its exclusivity. Fry expressly held that federal
habeas courts need not first assess whether a state court unreasonably applied Chapman before deciding whether that error was
prejudicial under Brecht. Such a requirement would “mak[e] no sense ... when the latter [standard] obviously subsumes the
former.” Fry, 551 U.S., at 120, 127 S.Ct. 2321. Nothing in the Court's opinion today calls into question this aspect of Fry 's
holding. If a trial error is prejudicial under Brecht 's standard, a state court's determination that the error was harmless beyond
a reasonable doubt is necessarily unreasonable. See ante, at 2198 – 2199.
II
A
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
17
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
To apply Brecht to the facts of this case, it is essential to understand the contours of Ayala's underlying constitutional claim or
—perhaps more importantly—to appreciate what his claim is not. Trial judges *2212 assess criminal defendants' challenges
to prosecutors' use of peremptory strikes using the three-part procedure first announced in Batson. After a defendant makes a
“prima facie showing that a peremptory challenge [was] ... exercised on the basis of race,” the prosecution is given an opportunity
to “offer a race-neutral basis for striking the juror in question,” Miller–El v. Cockrell, 537 U.S. 322, 328, 123 S.Ct. 1029, 154
L.Ed.2d 931 (2003). The court then “decid[es] whether it was more likely than not that the challenge was improperly motivated.”
Johnson v. California, 545 U.S. 162, 169, 170, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005). This determination is a factual one,
which—as the Court correctly notes—reviewing courts must accord “ ‘great deference.’ ” See ante, at 2199 – 2200 (quoting
Felkner v. Jackson, 562 U.S. 594, 598, 131 S.Ct. 1305, 179 L.Ed.2d 374 (2011) (per curiam )).
Here, Ayala does not claim that the trial court wrongly rejected his Batson challenges based on the record before it. Rather,
Ayala's claim centers on the exclusion of his attorneys from the Batson hearings. Ayala contends that there is at least a grave
doubt as to whether the trial or appellate court's consideration of his Batson challenges was substantially influenced by the
trial court's erroneous refusal to permit his attorneys to appear at the hearings at which those challenges were adjudicated.
Ayala's conviction must be vacated if there is grave doubt as to whether even just one of his Batson challenges would have
been sustained had the defense been present. Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008)
(reversing a conviction after concluding that use of one peremptory strike was racially motivated).
B
The Court's Brecht application begins and ends with a discussion of particular arguments the Ninth Circuit posited Ayala's
lawyers could have raised had they been present at his Batson hearings. This approach fails to account for the basic background
principle that must inform the application of Brecht to Ayala's procedural Batson claim: the “[c]ommon sense” insight “that
secret decisions based on only one side of the story will prove inaccurate more often than those made after hearing from both
sides.” Kaley v. United States, 571 U.S. ––––, ––––, 134 S.Ct. 1090, 1113, 188 L.Ed.2d 46 (2014) (ROBERTS, C.J., dissenting).
Our entire criminal justice system was founded on the premise that “[t]ruth ... is best discovered by powerful statements on both
sides of the question.” United States v. Cronic, 466 U.S. 648, 655, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (internal quotation
marks omitted). There is no reason to believe that Batson hearings are the rare exception to this rule. Instead, defense counsel
could have played at least two critical roles had they been present at Ayala's Batson hearings.
First, Ayala's attorneys would have been able to call into question the credibility of the prosecution's asserted race-neutral
justifications for the use of its peremptory strikes. Of course, a trial court may identify some pretextual reasons on its own, but
Snyder held that when assessing a claimed Batson error, “all of the circumstances that bear upon the issue of racial animosity
must be consulted.” Snyder, 552 U.S., at 478, 128 S.Ct. 1203. Absent an adversarial presentation, a diligent judge may overlook
relevant facts or legal arguments in even a straightforward case. There is also great probative force to a “comparative juror
analysis”—an analysis of whether the prosecution's reasons for using its peremptory strikes against nonwhite jurors apply
equally to white jurors whom it would have allowed to serve. *2213 Miller–El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 162
L.Ed.2d 196 (2005). See also Snyder, 552 U.S., at 483, 128 S.Ct. 1203 (emphasizing importance of conducting a comparative
juror analysis in the trial court). Trial courts are ill suited to perform this intensive inquiry without defense counsel's assistance.
The risk that important arguments will not be considered rises close to a certainty in a capital case like Ayala's, where jury
selection spanned more than three months, involved more than 200 prospective jurors, and generated a record that is massive by
any standard. See Ayala v. Wong, 756 F.3d 656, 660, 676 (C.A.9 2014) (case below). It strains credulity to suggest that a court
confronted with this mountain of information necessarily considered all of the facts that would have informed its credibility
determination without the presence of defense counsel to help bring them to its attention.
Second, not only did the exclusion of defense counsel from Ayala's Batson hearings prevent him from making his strongest
arguments before the person best situated to assess their merit, it also impeded his ability to raise these claims on appeal.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
18
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
Because Ayala's lawyers were not afforded any opportunity to respond to the prosecution's race-neutral reasons, we are left to
speculate as to whether the trial court actually considered any of the points the defense would have made before it accepted
the prosecution's proffered explanations. Moreover, even if we could divine which of the possible considerations the trial judge
took into account, our review would still be unduly constrained by a record that lacks whatever material facts the defense would
have preserved had it been on notice of the assertions that it needed to challenge. Perhaps some of these facts, such as the jurors'
appearance and demeanor, were known to the trial judge, but appellate courts “can only serve [their] function when the record is
clear as to the relevant facts” or when they can rely on “defense counsel['s] fail[ure] to point out any such facts after learning of
the prosecutor's reasons.” United States v. Thompson, 827 F.2d 1254, 1261 (C.A.9 1987). Neither of these conditions is met here.
For the reasons described above, the fact that counsel was wrongfully excluded from Ayala's Batson hearings on its own raises
doubt as to whether the outcome of these proceedings—or the appellate courts' review of them—would have been the same had
counsel been present. 1 This doubt is exacerbated by the loss of the vast majority of the questionnaires that jurors completed at
the start of voir dire, including those filled out by the seven black and Hispanic jurors against whom the prosecution exercised
its peremptory strikes. The prosecution cited these questionnaires in support of its alleged race-neutral reasons at the ex parte
Batson hearings. See e.g., App. 283, 298, 312, 314, 316. Without the underlying documents, however, it is impossible to
assess whether the prosecution's characterizations of those prospective jurors' responses were fair and accurate. The loss of
the questionnaires has also precluded every court that has reviewed this case from performing a comprehensive comparative
juror analysis. The Court today analyzes how the prosecution's *2214 statements at the ex parte Batson hearings regarding
the black and Hispanic jurors' questionnaires stack up against the actual questionnaires completed by the white seated jurors
and alternates. But there is no way to discern how these representations compare with the answers that were given by white
jurors whom the prosecution would have permitted to serve but whom the defense ultimately struck. See Miller–El v. Dretke,
545 U.S., at 244–245, 125 S.Ct. 2317 (comparing a juror struck by the prosecution with a juror challenged only by the defense).
C
The above-described consequences of the trial court's procedural error and the fact that the prosecution struck every potential
black or Hispanic juror go a long way toward establishing the degree of uncertainty that Brecht requires. Keeping these
considerations in mind, the next step is to assess the arguments that Ayala's attorneys may have raised had they been allowed to
participate at his Batson hearings. As explained above, Ayala is entitled to habeas relief if a reviewing judge is in “equipoise”
as to whether his lawyers' exclusion from the Batson hearings had an “injurious effect” on the trial court's failure to find by
a preponderance of the evidence that any of the prosecution's peremptory strikes was racially motivated. With the inquiry
so framed, it is easy to see that the Ninth Circuit correctly found that Ayala was actually prejudiced by the trial court's
constitutional error. In particular, there is a substantial likelihood that if defense counsel had been present, Ayala could at least
have convinced the trial court that the race-neutral reasons the prosecution put forward for dismissing a black juror, Olanders
D., were pretextual. 2
The prosecution offered three justifications for striking Olanders D.: (1) he might be unable to vote for the death penalty because
he had written in his questionnaire that “he does not believe [in] it” and had failed to fully explain a subsequent change in
position; (2) his questionnaire answers were poor; and, (3) he might lack the “ability to fit in with a cohesive group of 12 people.”
App. 283. The trial court rejected the third of these reasons outright, noting that “it may well ... be that he would get along very
well with 12 people.” Id., at 283–284. I have grave misgivings as to whether the trial judge would have found it more likely
than not that the first two purported bases were legitimate had defense counsel been given an opportunity to respond to them.
Ayala's attorneys could have challenged the prosecution's claim that Olanders D. would hesitate to impose the death penalty
by pointing to a seated juror—Ana L.—who made remarkably similar statements concerning capital punishment. Based on his
remarks during voir dire, it appears that Olanders D. suggested on his questionnaire that he was or had been opposed to the death
penalty. 3 Id., at 176, 179. *2215 Ana L.'s questionnaire contained numerous comparable statements. When asked to express
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
19
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
her “feelings about the death penalty,” she wrote: “I don't believe in taking a life.” Id., at 108. And, in response to a question
regarding whether she “would like to serve as a juror and why?”, Ana L. said: “no—If I am selected as a Juror and all Jurors
voted for the death penalty I probably would not be able to vote for the death penalty.” Id., at 109. Finally, on her questionnaire,
Ana L. indicated that she believes the death penalty is imposed “[t]oo often” and that she strongly disagrees with the “adage,
‘An eye for any eye,’ ” which she understood to mean, “[a] criminal took a life[,] now [it] is our turn to take his.” Id., at 108–109.
A direct comparison of Olanders D.'s and Ana L.'s voir dire answers is equally telling. During voir dire, Olanders D. clarified
that he had not intended his questionnaire to reflect that he was categorically opposed to the death penalty, but only that his
views on the topic had evolved over the prior decade and that he had come to believe that the death penalty “would be an
appropriate sentence under certain circumstances.” Id., at 176. To account for this change in his position, Olanders D. cited
a number of considerations, including a new understanding of what his religion required, ibid., “more familiar[ity] with the
laws,” id., at 178, increased violence in our society, ibid., and conversations with his immediate family, id., at 180. Ana L., by
contrast, stated at voir dire that she “strongly ... did not believe in the death penalty” up until she “[f]illed out the questionnaire.”
Id., at 193. And, only after repeated attempts by both the defense and the prosecution to get her to pinpoint what caused this
sudden about face, Ana L. said that she had “listen[ed] to the Bundy evidence that was said and his being put to death, and I
started to think; and I said if they were guilty maybe there is a death sentence for these people.” Id., at 202. 4
Based on this record, it requires little speculation to see that defense counsel could have made a powerful argument that Ana L.
was equally or even less likely to impose the death penalty than Olanders D. While both jurors had opposed the death penalty
at some point in the past, Olanders D. stated that he had come to believe in capital punishment after a period of sustained
deliberation. Ana L., however, purported to change her view due only to one recent execution and the fact that she had been
called to serve as a juror on a capital case. Moreover, there is no basis to think that the trial court accounted for the similarities
between Ana L. and Olanders D. Approximately two months passed between Olanders D.'s and Ana L.'s voir dire hearings and
the date on which the prosecution exercised its peremptory strike against Olanders D. Without the benefit of defense counsel to
help jog his recollection, *2216 it is absurd to proceed as if the trial judge actually considered one of more than 200 prospective
jurors' statements concerning the death penalty when ruling on Ayala's Batson motion. Taken together, it seems highly likely
that these arguments—had they been raised—would have convinced the trial judge that the prosecution's first alleged reason
for striking Olanders D. was pretextual.
As for the prosecution's second purported justification—that his questionnaire responses “were poor,” id., at 283—it is
impossible to know what winning arguments the defense could have raised because the questionnaire itself is missing from
the record. 5 Indeed, for all that is known, counsel may have had a compelling argument that Olanders D.'s answers were
cogent and complete. Even if some of them were lacking, however, counsel could still have drawn the trial judge's attention to
weak questionnaires completed by several of the seated jurors. For instance, if the prosecution's claim was that Olanders D.'s
questionnaire answers were conclusory, Ayala's counsel could have referred the Court to seated juror Charles G.'s questionnaire.
In response to a prompt asking prospective jurors to explain why they would or would not like to be empaneled in Ayala's
case, Charles G. wrote only “No.” Id., at 71. Alternatively, if the prosecution's concern was that Olanders D.'s answer to a
particular question demonstrated an inability to clearly express himself, the defense could have directed the court's attention to
the questionnaire completed by seated juror Thomas B. When asked to share his “impressions or feelings ... about gangs based
on what [he had] read or s [een],” Thomas B. stated: “I feel the only media coverage they get is bad, however, those whom do
constructive events usually seek out positive media coverage.” Id., at 30. Finally, it bears noting that if Ayala's lawyers had been
able to respond at the Batson hearing, they would have had the questionnaires of many more comparable jurors at their disposal.
It is entirely possible that some of the questionnaires completed by prospective jurors who were accepted by the prosecution
but dismissed by the defense were weaker than those completed by Charles G. and Thomas B.
In short, it is probable that had Ayala's lawyers been present at the Batson hearing on Olanders D., his strong Batson claim
would have turned out to be a winning one. The trial judge rejected one of the reasons advanced by the prosecution on its own
and the defense had numerous persuasive arguments that it could have leveled against the remaining two justifications had it
been given the opportunity to do so.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
20
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
III
The Court concludes that Ayala is not entitled to habeas relief because it finds that there is little or no reason to doubt that
the trial judge would have accepted both of the above-discussed reasons for striking Olanders D. even if counsel participated
at Ayala's Batson hearings. The Court's analysis, however, misunderstands the record and mistakes Ayala's procedural Batson
claim for a direct challenge to a trial court's denial of a Batson motion.
*2217 In defense of the prosecution's first basis for striking Olanders D.—that he was uncomfortable with the death penalty—
the Court begins by asserting that Ana L. was insufficiently similar to Olanders D. to have cast any doubt on the prosecution's
position. Olanders D., the Court maintains, “initially voiced unequivocal opposition to the death penalty,” whereas Ana L.
“wrote on [her] questionnaire that she ‘probably would not be able to vote for the death penalty.’ ” Ante, at 2200 – 2201
(emphasis in original). But the Court has plucked one arguably ambiguous statement from Ana L.'s questionnaire while ignoring
others (described above) suggesting that she fundamentally opposed capital punishment. More importantly, the Court is not
comparing apples with apples. Because Olanders D.'s questionnaire has been lost, there is no way to know the extent to which
the views he expressed there were “unequivocal.” Consequently, in support of its contention that Olanders D. originally wrote
that he was categorically opposed to the death penalty, the Court relies on his response to a question posed by the prosecution
during voir dire. To be sure, when asked whether he had stated that he did not “believe in the death penalty” on his questionnaire,
Olanders D. responded: “That's correct.” App. 179. During voir dire, however, Ana L. described the position she had taken
in her questionnaire in identical terms, stating: “I remember saying [on my questionnaire] that I didn't believe in the death
penalty.” Id., at 201.
Given the difficulty of differentiating between Ana L.'s and Olanders D.'s views toward the death penalty based on the record
before us, the Court understandably does not press this factual point further. Instead, it commits a legal error by contending
that the trial court's determination is entitled to deference because the judge—unlike this Court—had the benefit of observing
both Olanders D.'s and the prosecution's demeanor. Ante, at 2201. Deference may be warranted when reviewing a substantive
Batson claim. By suggesting that a trial judge can make a sound credibility determination without the benefit of an adversarial
proceeding, however, the Court ignores the procedural nature of the constitutional error whose existence it purports to assume.
Courts defer to credibility findings not only because of trial judges' proximity to courtroom events, but also because of the
expectations regarding the procedures used in the proceedings that they oversee. A decision to credit a prosecution's race-neutral
basis for striking a juror is entitled to great weight if that reason has “survive[d] the crucible of meaningful adversarial testing.”
Cronic, 466 U.S., at 656, 104 S.Ct. 2039. It warrants substantially less—if any—deference where, as here, it is made in the
absence of the “fundamental instrument for judicial judgment: an adversary proceeding in which both parties may participate.”
Carroll v. President and Comm'rs of Princess Anne, 393 U.S. 175, 183, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); see also Kaley,
571 U.S., at ––––, 134 S.Ct., at 1113 (ROBERTS, C.J., dissenting) (“It takes little imagination to see that ... ex parte proceedings
create a heightened risk of error”). 6
The Court's analysis of the second reason put forward for striking Olanders D.—that his questionnaire was faulty—fares no
*2218 better. As a preliminary matter, perhaps because Olanders D.'s questionnaire has been lost, the Court characterizes the
prosecution's second proffered reason for dismissing Olanders D. as an objection to all of his “responses” as opposed to simply
the responses on his questionnaire. Ante, at 2200. But even if the prosecution had relied on the rationale that the Court now
substitutes, there is a real likelihood that the defense would still have been able to undermine its credibility.
The Court asserts that Olanders D.'s “responses” were misleading because he had “unequivocally” stated that he did not believe
in the death penalty on his questionnaire, but at voir dire he said that his views on capital punishment had changed over the
previous 10 years. Ante, at 2202. The Court's argument thus hinges on the premise that Olanders D.'s questionnaire clearly
stated that he was opposed to the death penalty. At least one person, however, did not construe Olanders D.'s questionnaire
to express such a categorical view: defense counsel. During voir dire, one of Ayala's lawyers remarked that she thought
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
21
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
Olanders D.'s questionnaire “indicated that [he] had had some change in [his] feelings about the death penalty.” App. 176. “[M]y
understanding,” she said, “is that at one time [he] felt one way, and—and then at some point [he] felt differently.” Ibid. Thus, if
(as the Court now hypothesizes) the trial court was inclined to accept the prosecution's second reason for striking Olanders D.
based on apparent tension between his questionnaire and his statements during voir dire (a proposition that is itself uncertain),
the defense may have been able to argue persuasively that any claimed inconsistency was illusory.
***
Batson recognized that it is fundamentally unfair to permit racial considerations to drive the use of peremptory challenges
against jurors. When the prosecution strikes every potential black and Hispanic juror, a reviewing court has a responsibility
to ensure that the trial court's denial of the defendant's Batson motion was not influenced by constitutional error. But there is
neither a factual nor a legal basis for the Court's confidence that the prosecution's race-neutral reasons for striking Olanders D.
were unassailable. Because the Court overlooks that Ayala raised a procedural Batson claim, it scours the record for possible
support for the trial court's credibility determination without accounting for the flaws in the process that led to it. The proper
inquiry is not whether the trial court's determination can be sustained, but whether it may have been different had counsel been
present. Given the strength of Ayala's prima facie case and the arguments his counsel would have been able to make based
even on the limited existing record, grave doubts exist as to whether counsel's exclusion from Ayala's Batson hearings was
harmless. Accordingly, I respectfully dissent.
All Citations
135 S.Ct. 2187, 192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253, 2015 Daily Journal D.A.R. 6782, 25 Fla.
L. Weekly Fed. S 371
Footnotes
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience
*
1
2
3
4
5
1
2
of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
The panel decided this question de novo because it concluded that the California Supreme Court either did not decide whether the ex
parte proceedings violated the Federal Constitution or silently decided that question in Ayala's favor. 756 F.3d, at 666–670.
In a footnote, however, the panel stated: “In holding that Ayala has demonstrated his entitlement to relief under Brecht, we therefore
also hold to be an unreasonable application of Chapman the California Supreme Court's conclusion that Ayala was not prejudiced
by the exclusion of the defense.” Id., at 674, n. 13.
The California Supreme Court has held that “[i]nsufficient command of the English language to allow full understanding of the words
employed in instructions and full participation in deliberations clearly ... render[s] a juror ‘unable to perform his duty’ ” within the
meaning of the California Penal Code. People v. Lomax, 49 Cal.4th 530, 566, 112 Cal.Rptr.3d 96, 234 P.3d 377, 407 (2010) (citation
omitted). See also Cal. Code Ann. Civ. Proc. § 203(a)(6) (West 2006). The seating of jurors whose lack of English proficiency was
only somewhat more pronounced than Gerardo O.'s has been held to be error. See People v. Szymanski, 109 Cal.App.4th 1126, 135
Cal.Rptr.2d 691 (2003).
See Man Acquitted of Killing Officer, N.Y. Times, July 17, 1987, p. B8.
See People v. Harris, 28 Cal.3d 935, 171 Cal.Rptr. 679, 623 P.2d 240 (1981).
Indeed, in a future case arising in a direct review posture, the Court may have occasion to consider whether the error that the Court
assumes here gives rise to “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular
case is unjustified.” United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). See also Mickens v. Taylor,
535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (noting that we have “presumed [prejudicial] effec[t] where assistance
of counsel has been denied entirely or during a critical stage of the proceeding”).
Because Ayala was actually prejudiced by his counsel's exclusion from the Batson hearing on Olanders D., there is no need to address
his claims concerning the other black and Hispanic jurors. That said, Ayala's attorneys may have had strong arguments with respect
to those jurors too. Moreover, Ayala's Batson challenge to Olanders D. would have been even stronger had counsel been given the
opportunity to demonstrate that some of the reasons given for striking the other black and Hispanic jurors were pretextual. See Snyder
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
22
Davis v. Ayala, 135 S.Ct. 2187 (2015)
192 L.Ed.2d 323, 83 USLW 4470, 15 Cal. Daily Op. Serv. 6253...
3
4
5
6
v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (observing that courts should “consider the strike of [one
juror] for the bearing it might have upon the strike of [a second juror]”).
It is, of course, impossible to verify what Olanders D. said in his questionnaire because that document is not in the record. If Ayala's
lawyers had been present at Olanders D.'s Batson hearing, they may have argued that his questionnaire showed that his position on
capital punishment had changed over time. See Part III, infra.
The Court claims that Olanders D. was less than eloquent in describing his thought process. Ante, at 2200 – 2201. But it is not difficult
to understand what he meant. In any event, as the Court later concedes, prospective jurors are likely to struggle when asked to express
their views on the death penalty. Ante, at 2201. Ana L. was no exception. For instance, when defense counsel first asked her to
describe her thought process, she responded, “Up to [when I filled out my questionnaire], I did not believe in putting someone to
death.” App. at 194. She continued: “But being that you've given me the—the opportunity to come over here, seeing something that
is not correct in the system, it wouldn't be no problem ... for me to give to come to a decision on the death penalty anymore.” Ibid.
The Court states that the prosecution's second purported race-neutral reason for striking Olanders D. was that his “responses” were
poor, but it conveniently neglects to mention that the responses to which the prosecution referred were clearly those Olanders D.
gave on his questionnaire. Ante, at 2200; see App. 283 (“My observations in reading his questionnaire and before even making note
of his racial orientation was that his responses were poor”).
None of the cases the Court cites are inconsistent with this logic. Miller–El v. Dretke, 545 U.S. 231, 236–237, 125 S.Ct. 2317, 162
L.Ed.2d 196 (2005), Snyder, 552 U.S., at 474, 128 S.Ct. 1203 and Rice v. Collins, 546 U.S. 333, 336, 126 S.Ct. 969, 163 L.Ed.2d
824 (2006), all concerned direct challenges to a trial court's denial of a Batson motion as opposed to procedural Batson claims.
End of Document
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
23
(Slip Opinion)
OCTOBER TERM, 2015
1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DIETZ v. BOULDIN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 15–458.
Argued April 26, 2016—Decided June 9, 2016
Petitioner Rocky Dietz sued respondent Hillary Bouldin for negligence
for injuries suffered in an automobile accident. Bouldin removed the
case to Federal District Court. At trial, Bouldin admitted liability
and stipulated to damages of $10,136 for Dietz’ medical expenses.
The only disputed issue remaining was whether Dietz was entitled to
more. During deliberations, the jury sent the judge a note asking
whether Dietz’ medical expenses had been paid and, if so, by whom.
Although the judge was concerned that the jury may not have understood that a verdict of less than the stipulated amount would require
a mistrial, the judge, with the parties’ consent, responded only that
the information being sought was not relevant to the verdict. The jury returned a verdict in Dietz’ favor but awarded him $0 in damages.
After the verdict, the judge discharged the jury, and the jurors left
the courtroom. Moments later, the judge realized the error in the $0
verdict and ordered the clerk to bring back the jurors, who were all in
the building—including one who may have left for a short time and
returned. Over the objection of Dietz’ counsel and in the interest of
judicial economy and efficiency, the judge decided to recall the jury.
After questioning the jurors as a group, the judge was satisfied that
none had spoken about the case to anyone and ordered them to return the next morning. After receiving clarifying instructions, the
reassembled jury returned a verdict awarding Dietz $15,000 in damages. On appeal, the Ninth Circuit affirmed.
Held: A federal district court has a limited inherent power to rescind a
jury discharge order and recall a jury in a civil case for further deliberations after identifying an error in the jury’s verdict. The District
Court did not abuse that power here. Pp. 4–13.
(a) The inherent powers that district courts possess “to manage
2
DIETZ v. BOULDIN
Syllabus
their own affairs so as to achieve the orderly and expeditious disposition of cases,” Link v. Wabash R. Co., 370 U. S. 626, 630–631, have
certain limits. The exercise of an inherent power must be a “reasonable response to the problems and needs” confronting the court’s fair
administration of justice and cannot be contrary to any express grant
of, or limitation on, the district court’s power contained in a rule or
statute. Degen v. United States, 517 U. S. 820, 823–824. These two
principles support the conclusion here.
First, rescinding a discharge order and recalling the jury can be a
reasonable response to correcting an error in the jury’s verdict in certain circumstances, and is similar in operation to a district court’s
express power under Federal Rule of Civil Procedure 51(b)(3) to give
the jury a curative instruction and order them to continue deliberating to correct an error in the verdict before discharge. Other inherent
powers possessed by district courts, e.g., a district court’s inherent
power to modify or rescind its orders before final judgment in a civil
case, see Marconi Wireless Telegraph Co. of America v. United States,
320 U. S. 1, 47–48, or to manage its docket and courtroom with a
view toward the efficient and expedient resolution of cases, see Landis v. North American Co., 299 U. S. 248, 254, also support this conclusion.
Second, rescinding a discharge order to recall a jury does not violate any other rule or statute. No implicit limitation in Rule 51(b)(3)
prohibits a court from rescinding its discharge order and reassembling the jury. Nor are such limits imposed by other rules dealing
with postverdict remedies. See, e.g., Fed. Rules Civ. Proc. 50(b),
59(a)(1)(A). Pp. 4–7.
(b) This inherent power must be carefully circumscribed, especially
in light of the guarantee of an impartial jury. Because discharge releases a juror from the obligations to avoid discussing the case outside the jury room and to avoid external prejudicial information, the
potential that a jury reassembled after being discharged might be
tainted looms large. Thus, any suggestion of prejudice should counsel
a district court not to exercise its inherent power. The court should
determine whether any juror has been directly tainted and should also take into account additional factors that can indirectly create prejudice, which at a minimum, include the length of delay between discharge and recall, whether the jurors have spoken to anyone about
the case after discharge, and any emotional reactions to the verdict
witnessed by the jurors. Courts should also ask to what extent justdismissed jurors accessed their smartphones or the internet.
Applying those factors here, the District Court did not abuse its
discretion. The jury was out for only a few minutes, and, with the exception of one juror, remained inside the courthouse. The jurors did
Cite as: 579 U. S. ____ (2016)
3
Syllabus
not speak to any person about the case after discharge. And, there is
no indication in the record that the verdict generated any kind of
emotional reaction or electronic exchanges or searches that could
have tainted the jury. Pp. 7–10.
(c) Dietz’ call for a categorical bar on reempaneling a jury after discharge is rejected. Even assuming that at common law a discharged
jury could never be brought back, the advent of modern federal trial
practice limits the common law’s relevance as to the specific question
raised here. There is no benefit to imposing a rule that says that as
soon as a jury is free to go a judge categorically cannot rescind that
order to correct an easily identified and fixable mistake. And Dietz’
“functional” discharge test, which turns on whether the jurors remain
within the district court’s “presence and control,” i.e., within the
courtroom, raises similar problems. Pp. 11–13.
794 F. 3d 1093; affirmed.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and GINSBURG, BREYER, ALITO, and KAGAN, JJ., joined. THOMAS,
J., filed a dissenting opinion, in which KENNEDY, J., joined.
Cite as: 579 U. S. ____ (2016)
1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–458
_________________
ROCKY DIETZ, PETITIONER v. HILLARY BOULDIN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 9, 2016]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
In this case, a jury returned a legally impermissible
verdict. The trial judge did not realize the error until
shortly after he excused the jury. He brought the jury
back and ordered them to deliberate again to correct the
mistake. The question before us is whether a federal
district court can recall a jury it has discharged, or whether
the court can remedy the error only by ordering a new
trial.
This Court now holds that a federal district court has
the inherent power to rescind a jury discharge order and
recall a jury for further deliberations after identifying an
error in the jury’s verdict. Because the potential of tainting jurors and the jury process after discharge is extraordinarily high, however, this power is limited in duration
and scope, and must be exercised carefully to avoid any
potential prejudice.
I
Petitioner Rocky Dietz was driving through an intersection in Bozeman, Montana, when Hillary Bouldin ran the
red light and T-boned Dietz. As a result of the accident,
Dietz suffered injuries to his lower back that caused him
2
DIETZ v. BOULDIN
Opinion of the Court
severe pain. He sought physical therapy, steroid injections, and other medications to treat his pain. Dietz sued
Bouldin for negligence. Bouldin removed the case to
Federal District Court. See 28 U. S. C. §§1332, 1441.
At trial, Bouldin admitted that he was at fault for the
accident and that Dietz was injured as a result. Bouldin
also stipulated that Dietz’ medical expenses of $10,136
were reasonable and necessary as a result of the collision.
The only disputed issue at trial for the jury to resolve was
whether Dietz was entitled to damages above $10,136.
During deliberations, the jury sent the judge a note
asking: “ ‘Has the $10,136 medical expenses been paid; and
if so, by whom?’ ” App. 36. The court discussed the note
with the parties’ attorneys and told them he was unsure
whether the jurors understood that their verdict could not
be less than that stipulated amount, and that a mistrial
would be required if the jury did not return a verdict of at
least $10,136. The judge, however, with the consent of
both parties, told the jury that the information they
sought was not relevant to the verdict.
The jury returned a verdict in Dietz’ favor but awarded
him $0 in damages. The judge thanked the jury for its
service and ordered them “discharged,” telling the jurors
they were “free to go.” App. to Pet. for Cert. 25a. The
jurors gathered their things and left the courtroom.
A few minutes later, the court ordered the clerk to bring
the jurors back. Speaking with counsel outside the jury’s
presence, the court explained that it had “just stopped the
jury from leaving the building,” after realizing that the $0
verdict was not “legally possible in view of stipulated
damages exceeding $10,000.” Id., at 26a. The court suggested two alternatives: (1) order a new trial or (2)
reempanel the jurors, instructing them to award at least
the stipulated damages, and ordering them to deliberate
anew.
Dietz’ attorney objected to reempaneling the discharged
Cite as: 579 U. S. ____ (2016)
3
Opinion of the Court
jurors, arguing that the jury was no longer capable of
returning a fair and impartial verdict. The court reiterated that none of the jurors had left the building, and asked
the clerk whether any had even left the floor where the
courtroom was located. The clerk explained that only one
juror had left the building to get a hotel receipt and bring
it back.
Before the jurors returned, the judge told the parties
that he planned to order the jury to deliberate again and
reach a different verdict. The judge explained that he
would “hate to just throw away the money and time that’s
been expended in this trial.” Id., at 28a. When the jurors
returned to the courtroom, the judge questioned them as a
group and confirmed that they had not spoken to anyone
about the case.
The judge explained to the jurors the mistake in not
awarding the stipulated damages. He informed the jurors
that he was reempaneling them and would ask them to
start over with clarifying instructions. He asked the
jurors to confirm that they understood their duty and to
return the next morning to deliberate anew. The next
day, the reassembled jury returned a verdict awarding
Dietz $15,000 in damages.
On appeal, the Ninth Circuit affirmed. 794 F. 3d 1093
(2015).
The court held that a district court could
reempanel the jury shortly after dismissal as long as
during the period of dismissal, the jurors were not exposed
to any outside influences that would compromise their
ability to reconsider the verdict fairly. This Court granted
Dietz’ petition for a writ of certiorari to resolve confusion
in the Courts of Appeals on whether and when a federal
district court has the authority to recall a jury after discharging it. 577 U. S. ___ (2016). See Wagner v. Jones,
758 F. 3d 1030, 1034–1035 (CA8 2014), cert. denied, 575
U. S. ___ (2015); United States v. Figueroa, 683 F. 3d 69,
72–73 (CA3 2012); United States v. Rojas, 617 F. 3d 669,
4
DIETZ v. BOULDIN
Opinion of the Court
677–678 (CA2 2010); United States v. Marinari, 32 F. 3d
1209, 1214 (CA7 1994); Summers v. United States, 11
F. 2d 583, 585–587 (CA4 1926).
II
A
The Federal Rules of Civil Procedure set out many of the
specific powers of a federal district court. But they are not
all encompassing. They make no provision, for example,
for the power of a judge to hear a motion in limine,1 a
motion to dismiss for forum non conveniens,2 or many
other standard procedural devices trial courts around the
country use every day in service of Rule 1’s paramount
command: the just, speedy, and inexpensive resolution of
disputes.
Accordingly, this Court has long recognized that a district court possesses inherent powers that are “governed
not by rule or statute but by the control necessarily vested
in courts to manage their own affairs so as to achieve the
orderly and expeditious disposition of cases.” Link v.
Wabash R. Co., 370 U. S. 626, 630–631 (1962); see also
United States v. Hudson, 7 Cranch 32, 34 (1812). Although this Court has never precisely delineated the outer
boundaries of a district court’s inherent powers, the Court
has recognized certain limits on those powers.
First, the exercise of an inherent power must be a “reasonable response to the problems and needs” confronting
the court’s fair administration of justice. Degen v. United
States, 517 U. S. 820, 823–824 (1996). Second, the exercise of an inherent power cannot be contrary to any express grant of or limitation on the district court’s power
contained in a rule or statute. See id., at 823; Fed. Rule
Civ. Proc. 83(b) (districts courts can “regulate [their] prac——————
1 Luce
2 Gulf
v. United States, 469 U. S. 38, 41, n. 4 (1984).
Oil Corp. v. Gilbert, 330 U. S. 501, 507–508 (1947).
Cite as: 579 U. S. ____ (2016)
5
Opinion of the Court
tice in any manner consistent with federal law”); see, e.g.,
Bank of Nova Scotia v. United States, 487 U. S. 250, 254
(1988) (holding that a district court cannot invoke its
inherent power to circumvent the harmless-error inquiry
prescribed by Federal Rule of Criminal Procedure 52(a)).
These two principles—an inherent power must be a reasonable response to a specific problem and the power
cannot contradict any express rule or statute—support the
conclusion that a district judge has a limited inherent
power to rescind a discharge order and recall a jury in a
civil case where the court discovers an error in the jury’s
verdict.
First, rescinding a discharge order and recalling the jury
can be a reasonable response to correcting an error in the
jury’s verdict in certain circumstances. In the normal
course, when a court recognizes an error in a verdict before it discharges the jury, it has the express power to give
the jury a curative instruction and order them to continue
deliberating. See Fed. Rule Civ. Proc. 51(b)(3) (“The court
. . . may instruct the jury at any time before the jury is
discharged”); 4 L. Sand et al., Modern Federal Jury Instructions–Civil ¶78.01, Instruction 78–10, p. 78–31 (2015)
(Sand) (when a jury returns an inconsistent verdict,
“[r]esubmitting the verdict . . . to resolve the inconsistencies is often the preferable course”). The decision to recall
a jury to give them what would be an identical predischarge curative instruction could be, depending on the
circumstances, similarly reasonable.
This conclusion is buttressed by this Court’s prior cases
affirming a district court’s inherent authority in analogous
circumstances. For example, the Court has recognized
that a district court ordinarily has the power to modify or
rescind its orders at any point prior to final judgment in a
civil case. Marconi Wireless Telegraph Co. of America v.
United States, 320 U. S. 1, 47–48 (1943); see also Fed.
Rule Civ. Proc. 54(b) (district court can revise partial final
6
DIETZ v. BOULDIN
Opinion of the Court
judgment order absent certification of finality); Fernandez
v. United States, 81 S. Ct. 642, 644, 5 L. Ed. 2d 683 (1961)
(Harlan, J., in chambers) (district court has inherent
power to revoke order granting bail).
Here, the District Court rescinded its order discharging
the jury before it issued a final judgment. Rescinding the
discharge order restores the legal status quo before the
court dismissed the jury. The District Court is thus free to
reinstruct the jury under Rule 51(b)(3).
This Court has also held that district courts have the
inherent authority to manage their dockets and courtrooms with a view toward the efficient and expedient
resolution of cases. See, e.g., Landis v. North American
Co., 299 U. S. 248, 254 (1936) (district court has inherent
power to stay proceedings pending resolution of parallel
actions in other courts); Link, 370 U. S., at 631–632 (district court has inherent power to dismiss case sua sponte
for failure to prosecute); Chambers v. NASCO, Inc., 501
U. S. 32, 44 (1991) (district court has inherent power to
vacate judgment procured by fraud); United States v.
Morgan, 307 U. S. 183, 197–198 (1939) (district court has
inherent power to stay disbursement of funds until revised
payments are finally adjudicated).
This Court’s recognition of these other inherent powers
designed to resolve cases expeditiously is consistent with
recognizing an inherent power to recall a discharged jury
and reempanel the jurors with curative instructions.
Compared to the alternative of conducting a new trial,
recall can save the parties, the court, and society the
costly time and litigation expense of conducting a new
trial with a new set of jurors.
Second, rescinding a discharge order to recall a jury
does not violate any other rule or statute. Rule 51(b)(3)
states that a court “may instruct the jury at any time
before the jury is discharged.” A judge obviously cannot
instruct a jury that is discharged—it is no longer there.
Cite as: 579 U. S. ____ (2016)
7
Opinion of the Court
But there is no implicit limitation in Rule 51(b)(3) that
prohibits a court from rescinding its discharge order and
reassembling the jury. See Link, 370 U. S., at 630 (holding that Rule 41(b)’s allowance for a party to move to
dismiss for failure to prosecute did not implicitly abrogate
the court’s power to dismiss sua sponte). Other rules
dealing with postverdict remedies such as a motion for a
new trial or a motion for judgment notwithstanding the
verdict, see Fed. Rules Civ. Proc. 50(b), 59(a)(1)(A), similarly do not place limits on a court’s ability to rescind a
prior order discharging a jury. Accordingly, a federal
district court can rescind a discharge order and recall a
jury in a civil case as an exercise of its inherent powers.
B
Just because a district court has the inherent power to
rescind a discharge order does not mean that it is appropriate to use that power in every case. Because the exercise of an inherent power in the interest of promoting
efficiency may risk undermining other vital interests
related to the fair administration of justice, a district
court’s inherent powers must be exercised with restraint.
See Chambers, 501 U. S., at 44 (“Because of their very
potency, inherent powers must be exercised with restraint
and discretion”).
The inherent power to rescind a discharge order and
recall a dismissed jury, therefore, must be carefully circumscribed, especially in light of the guarantee of an
impartial jury that is vital to the fair administration of
justice. This Court’s precedents implementing this guarantee have noted various external influences that can
taint a juror. E.g., Remmer v. United States, 347 U. S.
227, 229 (1954) (“In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a
juror during a trial about the matter pending before the
jury is, for obvious reasons, deemed presumptively preju-
8
DIETZ v. BOULDIN
Opinion of the Court
dicial”). Parties can accordingly ask that a juror be excused during trial for good cause, Fed. Rule Civ. Proc.
47(c), or challenge jury verdicts based on improper extraneous influences such as prejudicial information not admitted into evidence, comments from a court employee
about the defendant, or bribes offered to a juror, Warger v.
Shauers, 574 U. S. ___, ___ (2014) (slip op., at 10) (citing
Tanner v. United States, 483 U. S. 107, 117 (1987)); see
also Mattox v. United States, 146 U. S. 140, 149–150
(1892) (external prejudicial information); Parker v. Gladden, 385 U. S. 363, 365 (1966) (per curiam) (bailiff comments on defendant); Remmer, 347 U. S., at 228–230
(bribe offered to juror).
The potential for taint looms even larger when a jury is
reassembled after being discharged. While discharged,
jurors are freed from instructions from the court requiring
them not to discuss the case with others outside the jury
room and to avoid external prejudicial information. See,
e.g., 4 Sand ¶71.02 (standard instruction to avoid extraneous influences); see also id., ¶71.01, Instructions 71–12 to
71–14 (avoid publicity). For example, it is not uncommon
for attorneys or court staff to talk to jurors postdischarge
for their feedback on the trial. See 1 K. O’Malley et al.,
Federal Jury Practice and Instructions §9:8 (6th ed. 2006)
(debating appropriateness of practice).
Any suggestion of prejudice in recalling a discharged
jury should counsel a district court not to exercise its
inherent power. A district court that is considering
whether it should rescind a discharge order and recall a
jury to correct an error or instead order a new trial should,
of course, determine whether any juror has been directly
tainted—for example, if a juror discusses the strength of
the evidence with nonjurors or overhears others talking
about the strength of the evidence. But the court should
also take into account at least the following additional
factors that can indirectly create prejudice in this context,
Cite as: 579 U. S. ____ (2016)
9
Opinion of the Court
any of which standing alone could be dispositive in a
particular case.
First, the length of delay between discharge and recall.
The longer the jury has been discharged, the greater the
likelihood of prejudice. Freed from the crucible of the
jury’s group decisionmaking enterprise, discharged jurors
may begin to forget key facts, arguments, or instructions
from the court. In taking off their juror “hats” and returning to their lives, they may lose sight of the vital collective
role they played in the impartial administration of justice.
And they are more likely to be exposed to potentially
prejudicial sources of information or discuss the case with
others, even if they do not realize they have done so or
forget when questioned after being recalled by the court.
How long is too long is left to the discretion of the district
court, but it could be as short as even a few minutes,
depending on the case.
Second, whether the jurors have spoken to anyone about
the case after discharge. This could include court staff,
attorneys and litigants, press and sketch artists, witnesses,
spouses, friends, and so on. Even apparently innocuous comments about the case from someone like a courtroom deputy such as “job well done” may be sufficient to
taint a discharged juror who might then resist reconsidering her decision.
Third, the reaction to the verdict. Trials are society’s
way of channeling disputes into fair and impartial resolutions. But these disputes can be bitter and emotional.
And, depending on the case, those emotions may be broadcasted to the jury in response to their verdict. Shock,
gasps, crying, cheers, and yelling are common reactions to
a jury verdict—whether as a verdict is announced in the
courtroom or seen in the corridors after discharge.
In such a case, there is a high risk that emotional reactions will cause jurors to begin to reconsider their decision
and ask themselves, “Did I make the right call?” Of
10
DIETZ v. BOULDIN
Opinion of the Court
course, this concern would be present even in a decision to
reinstruct the jury to fix an error after the verdict is announced but before they are discharged. See Fed. Rule
Civ. Proc. 51(b)(3). Even so, after discharging jurors from
their obligations and the passage of time, a judge should
be reluctant to reempanel a jury that has witnessed emotional reactions to its verdict.
In considering these and any other relevant factors,
courts should also ask to what extent just-dismissed jurors
accessed their smartphones or the internet, which provide
other avenues for potential prejudice. It is a nowingrained instinct to check our phones whenever possible.
Immediately after discharge, a juror could text something
about the case to a spouse, research an aspect of the evidence on Google, or read reactions to a verdict on Twitter.
Prejudice can come through a whisper or a byte.
Finally, we caution that our recognition here of a court’s
inherent power to recall a jury is limited to civil cases
only. Given additional concerns in criminal cases, such as
attachment of the double jeopardy bar, we do not address
here whether it would be appropriate to recall a jury after
discharge in a criminal case. See Smith v. Massachusetts,
543 U. S. 462, 473–474 (2005).
Applying these factors, the District Court here did not
abuse its discretion by rescinding its discharge order and
recalling the jury to deliberate further. The jury was out
for only a few minutes after discharge. Only one juror
may have left the courthouse, apparently to retrieve a
hotel receipt. The jurors did not speak to any person
about the case after discharge. There is no indication in
the record that this run-of-the-mill civil case—where the
parties agreed that the defendant was liable and disputed
damages only—generated any kind of emotional reaction
or electronic exchanges or searches that could have tainted
the jury. There was no apparent potential for prejudice
by recalling the jury here.
Cite as: 579 U. S. ____ (2016)
11
Opinion of the Court
III
Dietz asks us to impose a categorical bar on reempaneling a jury after it has been discharged. He contends that,
at common law, a jury once discharged could never be
brought back together again. Accordingly, he argues,
without a “ ‘long unquestioned’ power” of courts recalling
juries, a federal district court lacks the inherent power to
rescind a discharge order. See Carlisle v. United States,
517 U. S. 416, 426–427 (1996) (district court lacked inherent authority to grant untimely motion for judgment of
acquittal).
We disagree. Even assuming that the common-law
tradition is as clear as Dietz contends, but see, e.g., Prussel v. Knowles, 5 Miss. 90, 95–97 (1839) (allowing postdischarge recall), the common law is less helpful to understanding modern civil trial practice. At common law, any
error in the process of rendering a verdict, no matter how
technical or inconsequential, could be remedied only by
ordering a new trial. But modern trial practice did away
with this system, replacing it with the harmless-error
standard now embodied in Rule 61. See Kotteakos v.
United States, 328 U. S. 750, 758, 760 (1946) (recognizing
predecessor statute to Rule 61 codified the “salutary policy” of “substitu[ing] judgment for automatic . . . rules”).
Jury practice itself no longer follows the strictures of the
common law. The common law required that juries be
sequestered from the rest of society until they reached a
verdict. Tellier, Separation or Dispersal of Jury in Civil
Case After Submission, 77 A. L. R. 2d 1086 (1961). This
generally meant no going home at night, no lunch breaks,
no dispersing at all until they reached a verdict. Id., §2;
see also Lester v. Stanley, 15 F. Cas. 396, 396–397 (No.
8,277) (Conn. 1808) (Livingston, Circuit Justice) (following
common law). Courts are no longer required to impose
these requirements on juries in order to prevent possible
prejudice. See Nebraska Press Assn. v. Stuart, 427 U. S.
12
DIETZ v. BOULDIN
Opinion of the Court
539, 554 (1976) (cases requiring sequestration to avoid
trial publicity “are relatively rare”); Drake v. Clark, 14
F. 3d 351, 358 (CA7 1994) (“Sequestration is an extreme
measure, one of the most burdensome tools of the many
available to assure a fair trial”). Accordingly, while courts
should not think they are generally free to discover new
inherent powers that are contrary to civil practice as
recognized in the common law, see Carlisle, 517 U. S., at
426–427, the advent of modern federal trial practice limits
the common law’s relevance as to the specific question
whether a judge can recall a just-discharged jury.
Dietz also argues that the nature of a jury’s deliberative
process means that something about the jury is irrevocably broken once the jurors are told they are free to go.
According to Dietz, with their bond broken, the jurors
cannot be brought back together again as a “jury.” In
other words, once a jury is discharged, a court can never
put the jury back together again by rescinding its discharge order—legally or metaphysically.
We reject this “Humpty Dumpty” theory of the jury.
Juries are of course an integral and special part of the
American system of civil justice. Our system cannot function without the dedication of citizens coming together to
perform their civic duty and resolve disputes.
But there is nothing about the jury as an entity that
ceases to exist simply because the judge tells the jury that
they are excused from further service. A discharge order
is not a magical invocation. It is an order, like any other
order.
And, like any order, it can be issued by mistake. All
judges make mistakes. (Even us.) See Brown v. Allen,
344 U. S. 443, 540 (1953) (Jackson, J., concurring in judgment) (“We are not final because we are infallible, but we
are infallible only because we are final”). There is no
benefit to imposing a rule that says that as soon as a jury
is free to go a judge categorically cannot rescind that order
Cite as: 579 U. S. ____ (2016)
13
Opinion of the Court
to correct an easily identified and fixable mistake, even as
the jurors are still in the courtroom collecting their things.
Dietz does not suggest the Court adopt a magic-words
rule, but instead urges the adoption of a “functional”
discharge test based on whether the jurors remain within
the “presence and control” of the district court, where
control is limited to the courtroom itself. Tr. of Oral Arg.
5–7. Similarly, the dissent suggests that it is the chance
“to mingle with bystanders” that creates a discharge that
cannot be undone. Post, at 1–2 (opinion of THOMAS, J.)
(internal quotation marks and brackets omitted). These
tests do not avoid the problems that Dietz and the dissent
identify with a prejudice inquiry. Under a courtroom test,
what if a juror has one foot over the line? What if she just
stepped out to use the restroom? Under a courthouse test,
what if she is just outside the doors? Reached her car in
the parking lot? Under a bystander test, is a courtroom
deputy in the jury room a mingling bystander? There is
no good reason to prefer a test based on geography or
identity over an inquiry focused on potential prejudice.
Finally, Dietz argues that the District Court in this case
erred by questioning the discharged jurors as a group
before reempaneling them instead of questioning each and
every juror individually. While individual questioning
could be the better practice in many circumstances, Dietz’
attorney raised no objection to this part of the court’s
process. We decline to review this forfeited objection. See
Fed. Rule Civ. Proc. 46.
*
*
*
Federal district courts have a limited inherent power to
rescind a discharge order and recall a jury in a civil case.
District courts should exercise this power cautiously and
courts of appeals should review its invocation carefully.
That was done here. The judgment of the Court of Appeals for the Ninth Circuit is therefore
Affirmed.
Cite as: 579 U. S. ____ (2016)
1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–458
_________________
ROCKY DIETZ, PETITIONER v. HILLARY BOULDIN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 9, 2016]
JUSTICE THOMAS, with whom JUSTICE KENNEDY joins,
dissenting.
Justice Holmes famously quipped, “It is revolting to
have no better reason for a rule of law than that so it was
laid down in the time of Henry IV.” The Path of the Law,
10 Harv. L. Rev. 457, 469 (1897). But old rules often
stand the test of time because wisdom underlies them.
The common-law rule prohibiting a judge from recalling
the jury after it is discharged is one such rule. Even
though contemporary jurors are not formally sequestered
as they were at common law, they are still subject to
significant restrictions designed to prevent undue influence. And in today’s world of cellphones, wireless Internet, and 24/7 news coverage, the rationale that undergirds
the bright-line rule supplied by the common law is even
more relevant: Jurors may easily come across prejudicial
information when, after trial, the court lifts their restrictions on outside information. I would therefore hew to
that rule rather than adopt the majority’s malleable multifactor test for prejudice. I respectfully dissent.
At common law, once the judge discharged the jury and
the jury could interact with the public, the judge could not
recall the jury to amend the verdict. See Sargent v. State,
11 Ohio 472, 473 (1842); Mills v. Commonwealth, 34 Va.
751, 752 (1836); Little v. Larrabee, 2 Me. 37, 40 (1822). It
was not “ ‘the mere announcement’ ” that the jury was
2
DIETZ v. BOULDIN
THOMAS, J., dissenting
discharged, but rather the chance to “ ‘mingl[e] with the
bystanders’ ” that triggered the prohibition against recalling them. Summers v. United States, 11 F. 2d 583, 586
(CA4 1926) (quoting A. Abbott, A Brief for the Trial of
Criminal Cases 730 (2d ed. 1902)). At that point, the court
could not fix a substantive error made by the jury, including “returning a verdict against the wrong party; or, if not
so, for a larger or smaller sum than they intended.” Little,
supra, at 39; see also Jackson v. Williamson, 2 T. R. 281,
281–282, 100 Eng. Rep. 153 (K. B. 1788) (refusing to allow
an amendment to the verdict after the jury was discharged
even though all jurors signed an affidavit explaining that
they intended to award more in damages).*
The theory underpinning this rule was simple: Jurors,
as the judges of fact, must avoid the possibility of prejudice. They have long been prohibited from having ex parte
communications with the parties during a trial or receiving evidence in private. 3 W. Blackstone, Commentaries
*375–*376. But once the jury is discharged, the jurors
“become accessible to the parties and subject to their
influence.” Little, supra, at 39. In drawing the line at the
opportunity to mingle, the common-law rule was prophylactic. But that is a desirable feature when public confidence in the judicial system is at stake.
It is true, as the Court explains, that jurors are no longer
sequestered from the public. Ante, at 11. But remnants
of sequestration remain. Jurors are prohibited from
ex parte contact with the parties and the judge. They are
not allowed to gather outside information about the case.
And, courthouses have private rooms for jurors, to shield
them from ex parte information during recesses and
deliberations.
——————
* Although courts could not fix substantive errors by recalling the
jury, they could correct clerical errors in the reporting of the verdict.
See Little v. Larrabee, 2 Me. 37, 38 (1822).
Cite as: 579 U. S. ____ (2016)
3
THOMAS, J., dissenting
Even without full sequestration, the common-law rule
remains sensible and administrable. After discharge, the
court has no power to impose restrictions on jurors, and
jurors are no longer under oath to obey them. Jurors may
access their cellphones and get public information about
the case. They may talk to counsel or the parties. They
may overhear comments in the hallway as they leave the
courtroom. And they may reflect on the case—away from
the pressure of the jury room—in a way that could induce
them to change their minds. The resulting prejudice can
be hard to detect. And a litigant who suddenly finds
himself on the losing end of a materially different verdict
may be left to wonder what may have happened in the
interval between the jury’s discharge and its new verdict.
Granting a new trial may be inconvenient, but at least
litigants and the public will be more confident that the
verdict was not contaminated by improper influence after
the trial has ended. And under this bright-line rule, district courts would take greater care in discharging the
jury.
In contrast, the only thing that is clear about the majority’s multifactor test is that it will produce more litigation.
This multifactor test may aid in identifying relevant facts
for analysis, but—like most multifactor tests—it leaves
courts adrift once those facts have been identified. The
majority instructs district judges to look at “the length of
delay between discharge and recall,” “whether the jurors
have spoken to anyone about the case after discharge,”
“the reaction to the verdict,” and whether jurors have had
access to their cellphones or the Internet. Ante, at 9–10.
But in collecting these factors, the majority offers little
guidance on how courts should apply them. Is one hour
too long? How about two hours or two days? Does a single
Internet search by a juror preclude recalling the entire
jury? How many factors must be present to shift the
balance against recalling the jury? All the majority says is
4
DIETZ v. BOULDIN
THOMAS, J., dissenting
that any factor “standing alone could be dispositive in a
particular case.” Ante, at 8–9 (emphasis added).
The majority’s factors thus raise more questions than
they answer. Parties will expend enormous effort litigating and appealing these questions. And when the Courts
of Appeals inevitably fail to agree on what constitutes
prejudice, we will be called on again to sort it out. As the
Court of King’s Bench recognized over two centuries ago,
“it was better that the present plaintiff should suffer an
inconvenience” than to head down this murky path. Jackson, supra, at 282, 100 Eng. Rep., at 153.
All rules have their drawbacks. The common-law rule,
on occasion, may unnecessarily force a district court to
redo a trial for a minor substantive mistake in the verdict.
But the majority’s multifactor test will only create more
confusion. It would be much simpler to instruct the district courts, when they find a mistake in the verdict after
the jury is dismissed, to hold a new trial.
The jurors here had the chance to mingle with the outside world after the District Court’s discharge order released them from their oaths. After the announcement of
discharge, the jurors entered public spaces in which interaction with nonjurors was possible. At that point, the
jurors no longer were within the court’s control and, therefore, were in fact discharged. Although the record does
not indicate one way or the other, it is also possible that
the jurors had access to cellphones or other wireless devices
in circumstances where they understood themselves to
have been released from any directions or limitations the
judge had imposed on the use of those devices during trial.
Because the District Court reconvened the jury after
discharge to deliberate anew, I would reverse the Court of
Appeals’ judgment affirming the verdict and remand for a
new trial. I respectfully dissent.
(Slip Opinion)
OCTOBER TERM, 2015
1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FOSTER v. CHATMAN, WARDEN
CERTIORARI TO THE SUPREME COURT OF GEORGIA
No. 14–8349. Argued November 2, 2015—Decided May 23, 2016
Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial,
the State used peremptory challenges to strike all four black prospective jurors qualified to serve on the jury. Foster argued that the
State’s use of those strikes was racially motivated, in violation of
Batson v. Kentucky, 476 U. S. 79. The trial court rejected that claim,
and the Georgia Supreme Court affirmed. Foster then renewed his
Batson claim in a state habeas proceeding. While that proceeding
was pending, Foster, through the Georgia Open Records Act, obtained from the State copies of the file used by the prosecution during
his trial. Among other documents, the file contained (1) copies of the
jury venire list on which the names of each black prospective juror
were highlighted in bright green, with a legend indicating that the
highlighting “represents Blacks”; (2) a draft affidavit from an investigator comparing black prospective jurors and concluding, “If it comes
down to having to pick one of the black jurors, [this one] might be
okay”; (3) notes identifying black prospective jurors as “B#1,” “B#2,”
and “B#3”; (4) notes with “N” (for “no”) appearing next to the names
of all black prospective jurors; (5) a list titled “[D]efinite NO’s” containing six names, including the names of all of the qualified black
prospective jurors; (6) a document with notes on the Church of Christ
that was annotated “NO. No Black Church”; and (7) the questionnaires filled out by five prospective black jurors, on which each juror’s
response indicating his or her race had been circled.
The state habeas court denied relief. It noted that Foster’s Batson
claim had been adjudicated on direct appeal. Because Foster’s renewed Batson claim “fail[ed] to demonstrate purposeful discrimination,” the court concluded that he had failed to show “any change in
the facts sufficient to overcome” the state law doctrine of res judicata.
2
FOSTER v. CHATMAN
Syllabus
The Georgia Supreme Court denied Foster the Certificate of Probable
Cause necessary to file an appeal.
Held:
1. This Court has jurisdiction to review the judgment of the Georgia Supreme Court denying Foster a Certificate of Probable Cause on
his Batson claim. Although this Court cannot ascertain the grounds
for that unelaborated judgment, there is no indication that it rested
on a state law ground that is both “independent of the merits” of Foster’s Batson claim and an “adequate basis” for that decision, so as to
preclude jurisdiction. Harris v. Reed, 489 U. S. 255, 260. The state
habeas court held that the state law doctrine of res judicata barred
Foster’s claim only by examining the entire record and determining
that Foster had not alleged a change in facts sufficient to overcome
the bar. Based on this lengthy “Batson analysis,” the state habeas
court concluded that Foster’s renewed Batson claim was “without
merit.” Because the state court’s application of res judicata thus “depend[ed] on a federal constitutional ruling, [that] prong of the court’s
holding is not independent of federal law, and [this Court’s] jurisdiction is not precluded.” Ake v. Oklahoma, 470 U. S. 68, 75; see also
Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 152. Pp. 6–9.
2. The decision that Foster failed to show purposeful discrimination
was clearly erroneous. Pp. 9–25.
(a) Batson provides a three-step process for adjudicating claims
such as Foster’s. “First, a defendant must make a prima facie showing that a preemptory challenge has been exercised on the basis of
race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third,
in light of the parties’ submissions, the trial court must determine
whether the defendant has shown purposeful discrimination.”
Snyder v. Louisiana, 552 U. S. 472, 477 (internal quotation marks
and brackets omitted). Only Batson’s third step is at issue here.
That step turns on factual findings made by the lower courts, and
this Court will defer to those findings unless they are clearly erroneous. See ibid. Pp. 9–10.
(b) Foster established purposeful discrimination in the State’s
strikes of two black prospective jurors: Marilyn Garrett and Eddie
Hood. Though the trial court accepted the prosecution’s justifications
for both strikes, the record belies much of the prosecution’s reasoning. Pp. 10–22.
(i) The prosecution explained to the trial court that it made a
last-minute decision to strike Garrett only after another juror,
Shirley Powell, was excused for cause on the morning that the strikes
were exercised. That explanation is flatly contradicted by evidence
Cite as: 578 U. S. ____ (2016)
3
Syllabus
showing that Garrett’s name appeared on the prosecution’s list of
“[D]efinite NO’s”—the six prospective jurors whom the prosecution
was intent on striking from the outset. The record also refutes several of the reasons the prosecution gave for striking Garrett instead of
Arlene Blackmon, a white prospective juror. For example, while the
State told the trial court that it struck Garrett because the defense
did not ask her for her thoughts about such pertinent trial issues as
insanity, alcohol, or pre-trial publicity, the record reveals that the defense asked Garrett multiple questions on each topic. And though
the State gave other facially reasonable justifications for striking
Garrett, those are difficult to credit because of the State’s willingness
to accept white jurors with the same characteristics. For example,
the prosecution claims that it struck Garrett because she was divorced and, at age 34, too young, but three out of four divorced white
prospective jurors and eight white prospective jurors under age 36
were allowed to serve. Pp. 11–17.
(ii) With regard to prospective juror Hood, the record similarly
undermines the justifications proffered by the State to the trial court
for the strike. For example, the prosecution alleged in response to
Foster’s pretrial Batson challenge that its only concern with Hood
was the fact that his son was the same age as the defendant. But
then, at a subsequent hearing, the State told the court that its chief
concern was with Hood’s membership in the Church of Christ. In the
end, neither of those reasons for striking Hood withstands scrutiny.
As to the age of Hood’s son, the prosecution allowed white prospective
jurors with sons of similar age to serve, including one who, in contrast to Hood, equivocated when asked whether Foster’s age would be
a factor at sentencing. And as to Hood’s religion, the prosecution erroneously claimed that three white Church of Christ members were
excused for cause because of their opposition to the death penalty,
when in fact the record shows that those jurors were excused for reasons unrelated to their views on the death penalty. Moreover, a document acquired from the State’s file contains a handwritten note
stating, “NO. NO Black Church,” while asserting that the Church of
Christ does not take a stand on the death penalty. Other justifications for striking Hood fail to withstand scrutiny because no concerns
were expressed with regard to similar white prospective jurors.
Pp. 17–23.
(c) Evidence that a prosecutor’s reasons for striking a black prospective juror apply equally to an otherwise similar nonblack prospective juror who is allowed to serve tends to suggest purposeful discrimination. Miller-El v. Dretke, 545 U. S. 231, 241. Such evidence is
compelling with respect to Garrett and Hood and, along with the
prosecution’s shifting explanations, misrepresentations of the record,
4
FOSTER v. CHATMAN
Syllabus
and persistent focus on race, leads to the conclusion that the striking
of those prospective jurors was “motivated in substantial part by discriminatory intent.” Snyder, 552 U. S., at 485. P. 23.
(d) Because Batson was decided only months before Foster’s trial,
the State asserts that the focus on black prospective jurors in the
prosecution’s file was an effort to develop and maintain a detailed account should the prosecution need a defense against any suggestion
that its reasons were pretextual. That argument, having never before been raised in the 30 years since Foster’s trial, “reeks of afterthought.” Miller-El, 545 U. S., at 246. And the focus on race in the
prosecution’s file plainly demonstrates a concerted effort to keep
black prospective jurors off the jury. Pp. 23–25.
Reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY,
GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed
an opinion concurring in the judgment. THOMAS, J., filed a dissenting
opinion.
Cite as: 578 U. S. ____ (2016)
1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–8349
_________________
TIMOTHY TYRONE FOSTER, PETITIONER v. BRUCE
CHATMAN, WARDEN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA
[May 23, 2016]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Petitioner Timothy Foster was convicted of capital
murder and sentenced to death in a Georgia court. During
jury selection at his trial, the State exercised peremptory
strikes against all four black prospective jurors qualified
to serve. Foster argued that the State’s use of those
strikes was racially motivated, in violation of our decision
in Batson v. Kentucky, 476 U. S. 79 (1986). The trial court
and the Georgia Supreme Court rejected Foster’s Batson
claim.
Foster then sought a writ of habeas corpus from the
Superior Court of Butts County, Georgia, renewing his
Batson objection. That court denied relief, and the Georgia Supreme Court declined to issue the Certificate of
Probable Cause necessary under Georgia law for Foster to
pursue an appeal. We granted certiorari and now reverse.
I
On the morning of August 28, 1986, police found Queen
Madge White dead on the floor of her home in Rome,
Georgia. White, a 79-year-old widow, had been beaten,
2
FOSTER v. CHATMAN
Opinion of the Court
sexually assaulted, and strangled to death. Her home had
been burglarized. Timothy Foster subsequently confessed
to killing White, and White’s possessions were recovered
from Foster’s home and from Foster’s two sisters. The
State indicted Foster on charges of malice murder and
burglary. He faced the death penalty. Foster v. State, 258
Ga. 736, 374 S. E. 2d 188 (1988).
District Attorney Stephen Lanier and Assistant District
Attorney Douglas Pullen represented the State at trial.
Jury selection proceeded in two phases: removals for cause
and peremptory strikes. In the first phase, each prospective juror completed a detailed questionnaire, which the
prosecution and defense reviewed. The trial court then
conducted a juror-by-juror voir dire of approximately 90
prospective jurors. Throughout this process, both parties
had the opportunity to question the prospective jurors and
lodge challenges for cause. This first phase whittled the
list down to 42 “qualified” prospective jurors. Five were
black.
In the second phase, known as the “striking of the jury,”
both parties had the opportunity to exercise peremptory
strikes against the array of qualified jurors. Pursuant to
state law, the prosecution had ten such strikes; Foster
twenty. See Ga. Code Ann. §15–12–165 (1985). The process worked as follows: The clerk of the court called the
qualified prospective jurors one by one, and the State had
the option to exercise one of its peremptory strikes. If the
State declined to strike a particular prospective juror,
Foster then had the opportunity to do so. If neither party
exercised a peremptory strike, the prospective juror was
selected for service. This second phase continued until 12
jurors had been accepted.
The morning the second phase began, Shirley Powell,
one of the five qualified black prospective jurors, notified
the court that she had just learned that one of her close
friends was related to Foster. The court removed Powell
Cite as: 578 U. S. ____ (2016)
3
Opinion of the Court
for cause. That left four black prospective jurors: Eddie
Hood, Evelyn Hardge, Mary Turner, and Marilyn Garrett.
The striking of the jury then commenced. The State
exercised nine of its ten allotted peremptory strikes, removing all four of the remaining black prospective jurors.
Foster immediately lodged a Batson challenge. The trial
court rejected the objection and empaneled the jury. The
jury convicted Foster and sentenced him to death.
Following sentencing, Foster renewed his Batson claim
in a motion for a new trial. After an evidentiary hearing,
the trial court denied the motion. The Georgia Supreme
Court affirmed, 258 Ga., at 747, 374 S. E. 2d, at 197, and
we denied certiorari, Foster v. Georgia, 490 U. S. 1085
(1989).
Foster subsequently sought a writ of habeas corpus from
the Superior Court of Butts County, Georgia, again pressing his Batson claim. While the state habeas proceeding
was pending, Foster filed a series of requests under the
Georgia Open Records Act, see Ga. Code Ann. §§50–18–70
to 50–18–77 (2002), seeking access to the State’s file from
his 1987 trial. In response, the State disclosed documents
related to the jury selection at that trial. Over the State’s
objections, the state habeas court admitted those documents into evidence. They included the following:
(1) Four copies of the jury venire list. On each copy, the
names of the black prospective jurors were highlighted in
bright green. A legend in the upper right corner of the
lists indicated that the green highlighting “represents
Blacks.” See, e.g., App. 253. The letter “B” also appeared
next to each black prospective juror’s name. See, e.g., ibid.
According to the testimony of Clayton Lundy, an investigator who assisted the prosecution during jury selection,
these highlighted venire lists were circulated in the district attorney’s office during jury selection. That allowed
“everybody in the office”—approximately “10 to 12 people,”
including “[s]ecretaries, investigators, [and] district attor-
4
FOSTER v. CHATMAN
Opinion of the Court
neys”—to look at them, share information, and contribute
thoughts on whether the prosecution should strike a particular juror. Pl. Exh. 1, 2 Record 190, 219 (Lundy deposition) (hereinafter Tr.). The documents, Lundy testified,
were returned to Lanier before jury selection. Id., at 220.
(2) A draft of an affidavit that had been prepared by
Lundy “at Lanier’s request” for submission to the state
trial court in response to Foster’s motion for a new trial.
Id., at 203. The typed draft detailed Lundy’s views on ten
black prospective jurors, stating “[m]y evaluation of the
jurors are a[s] follows.” App. 343. Under the name of one
of those jurors, Lundy had written:
“If it comes down to having to pick one of the black jurors, [this one] might be okay. This is solely my opinion. . . . Upon picking of the jury after listening to all
of the jurors we had to pick, if we had to pick a black
juror I recommend that [this juror] be one of the jurors.” Id., at 345 (paragraph break omitted).
That text had been crossed out by hand; the version of the
affidavit filed with the trial court did not contain the
crossed-out language. See id., at 127–129. Lundy testified that he “guess[ed]” the redactions had been done by
Lanier. Tr. 203.
(3) Three handwritten notes on black prospective jurors
Eddie Hood, Louise Wilson, and Corrie Hinds. Annotations denoted those individuals as “B#1,” “B#2,” and
“B#3,” respectively. App. 295–297. Lundy testified that
these were examples of the type of “notes that the team—
the State would take down during voir dire to help select
the jury in Mr. Foster’s case.” Tr. 208–210.
(4) A typed list of the qualified jurors remaining after
voir dire. App. 287–290. It included “Ns” next to ten
jurors’ names, which Lundy told the state habeas court
“signif[ied] the ten jurors that the State had strikes for
during jury selection.” Tr. 211. Such an “N” appeared
Cite as: 578 U. S. ____ (2016)
5
Opinion of the Court
alongside the names of all five qualified black prospective
jurors. See App. 287–290. The file also included a handwritten version of the same list, with the same markings.
Id., at 299–300; see Tr. 212. Lundy testified that he was
unsure who had prepared or marked the two lists.
(5) A handwritten document titled “definite NO’s,”
listing six names. The first five were those of the five
qualified black prospective jurors. App. 301. The State
concedes that either Lanier or Pullen compiled the list,
which Lundy testified was “used for preparation in jury
selection.” Tr. 215; Tr. of Oral Arg. 45.
(6) A handwritten document titled “Church of Christ.”
A notation on the document read: “NO. No Black Church.”
App. 302.
(7) The questionnaires that had been completed by
several of the black prospective jurors. On each one, the
juror’s response indicating his or her race had been circled. Id., at 311, 317, 323, 329, 334.
In response to the admission of this evidence, the State
introduced short affidavits from Lanier and Pullen. Lanier’s affidavit stated:
“I did not make any of the highlighted marks on the
jury venire list. It was common practice in the office
to highlight in yellow those jurors who had prior case
experience. I did not instruct anyone to make the
green highlighted marks. I reaffirm my testimony
made during the motion for new trial hearing as to
how I used my peremptory jury strikes and the basis
and reasons for those strikes.” Id., at 169 (paragraph
numeral omitted).
Pullen’s affidavit averred:
“I did not make any of the highlighted marks on the
jury venire list, and I did not instruct anyone else to
make the highlighted marks. I did not rely on the
highlighted jury venire list in making my decision on
6
FOSTER v. CHATMAN
Opinion of the Court
how to use my peremptory strikes.” Id., at 170–171
(paragraph numeral omitted).
Neither affidavit provided further explanation of the
documents, and neither Lanier nor Pullen testified in the
habeas proceeding.
After considering the evidence, the state habeas court
denied relief. The court first stated that, “[a]s a preliminary matter,” Foster’s Batson claim was “not reviewable
based on the doctrine of res judicata” because it had been
“raised and litigated adversely to [Foster] on his direct
appeal to the Georgia Supreme Court.” App. 175. The
court nonetheless announced that it would “mak[e] findings of fact and conclusions of law” on that claim. Id., at
191. Based on what it referred to as a “Batson . . . analysis,” the court concluded that Foster’s “renewed Batson
claim is without merit,” because he had “fail[ed] to demonstrate purposeful discrimination.” Id., at 192, 195, 196.
The Georgia Supreme Court denied Foster the “Certificate of Probable Cause” necessary under state law for him
to pursue an appeal, determining that his claim had no
“arguable merit.” Id., at 246; see Ga. Code Ann. §9–14–52
(2014); Ga. Sup. Ct. Rule 36 (2014). We granted certiorari.
575 U. S. ___ (2015).
II
Before turning to the merits of Foster’s Batson claim, we
address a threshold issue. Neither party contests our
jurisdiction to review Foster’s claims, but we “have an
independent obligation to determine whether subjectmatter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y & H Corp., 546 U. S.
500, 514 (2006).
This Court lacks jurisdiction to entertain a federal claim
on review of a state court judgment “if that judgment rests
on a state law ground that is both ‘independent’ of the
merits of the federal claim and an ‘adequate’ basis for the
Cite as: 578 U. S. ____ (2016)
7
Opinion of the Court
court’s decision.” Harris v. Reed, 489 U. S. 255, 260
(1989).
The state habeas court noted that Foster’s Batson claim
was “not reviewable based on the doctrine of res judicata”
under Georgia law. App. 175. The Georgia Supreme
Court’s unelaborated order on review provides no reasoning for its decision.1 That raises the question whether the
Georgia Supreme Court’s order—the judgment from which
Foster sought certiorari2—rests on an adequate and independent state law ground so as to preclude our jurisdiction
over Foster’s federal claim.
We conclude that it does not. When application of a
state law bar “depends on a federal constitutional ruling,
the state-law prong of the court’s holding is not independent of federal law, and our jurisdiction is not precluded.”
Ake v. Oklahoma, 470 U. S. 68, 75 (1985); see also Three
Affiliated Tribes of Fort Berthold Reservation v. Wold
Engineering, P. C., 467 U. S. 138, 152 (1984).
——————
1 The order stated, in its entirety: “Upon consideration of the Application for Certificate of Probable Cause to appeal the denial of habeas
corpus, it is ordered that it be hereby denied. All the Justices concur,
except Benham, J., who dissents.” App. 246.
2 We construe Foster’s petition for writ of certiorari as seeking review
of the Georgia Supreme Court’s order denying him a “Certificate of
Probable Cause.” App. 246. The Georgia Supreme Court Rules provide
that such a certificate “will be issued where there is arguable merit.”
Rule 36 (emphasis added); see also Hittson v. GDCP Warden, 759 F. 3d
1210, 1231–1232 (CA11 2014). A decision by the Georgia Supreme
Court that Foster’s appeal had no “arguable merit” would seem to be a
decision on the merits of his claim. In such circumstances the Georgia
Supreme Court’s order is subject to review in this Court pursuant to a
writ of certiorari under 28 U. S. C. §1257(a). R. J. Reynolds Tobacco
Co. v. Durham County, 479 U. S. 130, 138–139 (1986); see Sears v.
Upton, 561 U. S. 945 (2010) ( per curiam) (exercising jurisdiction over
order from Georgia Supreme Court denying a Certificate of Probable
Cause). We reach the conclusion that such an order is a decision on the
merits “in the absence of positive assurance to the contrary” from the
Georgia Supreme Court. R. J. Reynolds, 479 U. S., at 138.
8
FOSTER v. CHATMAN
Opinion of the Court
In this case, the Georgia habeas court’s analysis in the
section of its opinion labeled “Batson claim” proceeded as
follows:
“The [State] argues that this claim is not reviewable
due to the doctrine of res judicata. However, because
[Foster] claims that additional evidence allegedly
supporting this ground was discovered subsequent to
the Georgia Supreme Court’s ruling [on direct appeal],
this court will review the Batson claim as to whether
[Foster] has shown any change in the facts sufficient
to overcome the res judicata bar.” App. 192.
To determine whether Foster had alleged a sufficient
“change in the facts,” the habeas court engaged in four
pages of what it termed a “Batson . . . analysis,” in which
it evaluated the original trial record and habeas record,
including the newly uncovered prosecution file. Id., at
192–196. Ultimately, that court concluded that Foster’s
“renewed Batson claim is without merit.” Id., at 196 (emphasis added).
In light of the foregoing, it is apparent that the state
habeas court’s application of res judicata to Foster’s Batson claim was not independent of the merits of his federal
constitutional challenge.3 That court’s invocation of res
——————
3 Contrary
to the dissent’s assertion, see post, at 6–8, it is perfectly
consistent with this Court’s past practices to review a lower court
decision—in this case, that of the Georgia habeas court—in order to
ascertain whether a federal question may be implicated in an unreasoned summary order from a higher court. See, e.g., R. J. Reynolds, 479
U. S., at 136–139 (exercising §1257 jurisdiction over unreasoned
judgment by the North Carolina Supreme Court after examining
grounds of decision posited by North Carolina Court of Appeal); see also
Stephen M. Shapiro, Kenneth S. Geller, Timothy S. Bishop, Edward A.
Hartnett, Dan Himmelfarb, Supreme Court Practice 211 (10th ed.
2013) (“[W]here the state court opinion fails to yield precise answers as
to the grounds of decision, the Court may be forced to turn to other
parts of the record, such as pleadings, motions, and trial court rulings,
to determine if a federal claim is so central to the controversy as to
Cite as: 578 U. S. ____ (2016)
9
Opinion of the Court
judicata therefore poses no impediment to our review of
Foster’s Batson claim. See Ake, 470 U. S., at 75.4
III
A
The “Constitution forbids striking even a single prospective juror for a discriminatory purpose.” Snyder v. Louisiana, 552 U. S. 472, 478 (2008) (internal quotation marks
omitted). Our decision in Batson v. Kentucky, 476 U. S.
79, provides a three-step process for determining when a
strike is discriminatory:
“First, a defendant must make a prima facie showing
that a peremptory challenge has been exercised on the
basis of race; second, if that showing has been made,
the prosecution must offer a race-neutral basis for
striking the juror in question; and third, in light of the
parties’ submissions, the trial court must determine
whether the defendant has shown purposeful discrimination.” Snyder, 552 U. S., at 476–477 (internal quotation marks and brackets omitted).
——————
preclude resting the judgment on independent and adequate state
grounds.”). And even the dissent does not follow its own rule. It too
goes beyond the unreasoned order of the Georgia Supreme Court in
determining that the “likely explanation for the court’s denial of habeas
relief is that Foster’s claim is procedurally barred.” Post, at 2. There
would be no way to know this, of course, from the face of the Georgia
Supreme Court’s summary order.
4 The concurrence notes that the “res judicata rule applied by the
Superior Court in this case is quite different” from the state procedural
bar at issue in Ake, which was “entirely dependent on federal law.”
Post, at 8. But whether a state law determination is characterized as
“entirely dependent on,” ibid., “resting primarily on,” Stewart v. Smith,
536 U. S. 856, 860 (2002) ( per curiam), or “influenced by” a question of
federal law, Three Affiliated Tribes of Fort Berthold Reservation v. Wold
Engineering, P. C., 467 U. S. 138, 152 (1984), the result is the same: the
state law determination is not independent of federal law and thus
poses no bar to our jurisdiction.
10
FOSTER v. CHATMAN
Opinion of the Court
Both parties agree that Foster has demonstrated a
prima facie case, and that the prosecutors have offered
race-neutral reasons for their strikes. We therefore address only Batson’s third step. That step turns on factual
determinations, and, “in the absence of exceptional circumstances,” we defer to state court factual findings unless we conclude that they are clearly erroneous. Synder,
552 U. S., at 477.
Before reviewing the factual record in this case, a brief
word is in order regarding the contents of the prosecution’s file that Foster obtained through his Georgia Open
Records Act requests. Pursuant to those requests, Foster
received a “certif[ied] . . . true and correct copy of 103
pages of the State’s case file” from his 1987 trial. App.
247. The State argues that “because [Foster] did not call
either of the prosecutors to the stand” to testify in his
state habeas proceedings, “he can only speculate as to the
meaning of various markings and writings” on those
pages, “the author of many of them, and whether the two
prosecutors at trial (District Attorney Lanier and Assistant District Attorney Pullen) even saw many of them.”
Brief for Respondent 20. For these reasons, the State
argues, “none of the specific pieces of new evidence [found
in the file] shows an intent to discriminate.” Ibid. (capitalization omitted). For his part, Foster argues that “[t]here
is no question that the prosecutors used the lists and
notes, which came from the prosecution’s file and were
certified as such,” and therefore the “source of the lists
and notes, their timing, and their purpose is hardly ‘unknown’ or based on ‘conjecture.’ ” Reply Brief 4–5 (quoting
Brief for Respondent 27–28).
The State concedes that the prosecutors themselves
authored some documents, see, e.g., Tr. of Oral Arg. 45
(admitting that one of the two prosecutors must have
written the list titled “definite NO’s”), and Lundy’s testimony strongly suggests that the prosecutors viewed oth-
Cite as: 578 U. S. ____ (2016)
11
Opinion of the Court
ers, see, e.g., Tr. 220 (noting that the highlighted jury
venire lists were returned to Lanier prior to jury selection). There are, however, genuine questions that remain
about the provenance of other documents. Nothing in the
record, for example, identifies the author of the notes that
listed three black prospective jurors as “B#1,” “B#2,” and
“B#3.” Such notes, then, are not necessarily attributable
directly to the prosecutors themselves. The state habeas
court was cognizant of those limitations, but nevertheless
admitted the file into evidence, reserving “a determination
as to what weight the Court is going to put on any of
[them]” in light of the objections urged by the State. 1
Record 20.
We agree with that approach. Despite questions about
the background of particular notes, we cannot accept the
State’s invitation to blind ourselves to their existence. We
have “made it clear that in considering a Batson objection,
or in reviewing a ruling claimed to be Batson error, all of
the circumstances that bear upon the issue of racial animosity must be consulted.” Snyder, 552 U. S., at 478. As
we have said in a related context, “[d]etermining whether
invidious discriminatory purpose was a motivating factor
demands a sensitive inquiry into such circumstantial . . .
evidence of intent as may be available.” Arlington Heights
v. Metropolitan Housing Development Corp., 429 U. S. 252,
266 (1977). At a minimum, we are comfortable that all
documents in the file were authored by someone in the
district attorney’s office. Any uncertainties concerning the
documents are pertinent only as potential limits on their
probative value.
B
Foster centers his Batson claim on the strikes of two
black prospective jurors, Marilyn Garrett and Eddie Hood.
We turn first to Marilyn Garrett. According to Lanier, on
the morning that the State was to use its strikes he had
12
FOSTER v. CHATMAN
Opinion of the Court
not yet made up his mind to remove Garrett. Rather, he
decided to strike her only after learning that he would not
need to use a strike on another black prospective juror,
Shirley Powell, who was excused for cause that morning.
Ultimately, Lanier did strike Garrett. In justifying that
strike to the trial court, he articulated a laundry list of
reasons. Specifically, Lanier objected to Garrett because
she: (1) worked with disadvantaged youth in her job as a
teacher’s aide; (2) kept looking at the ground during
voir dire; (3) gave short and curt answers during voir dire;
(4) appeared nervous; (5) was too young; (6) misrepresented
her familiarity with the location of the crime; (7) failed
to disclose that her cousin had been arrested on a drug
charge; (8) was divorced; (9) had two children and two
jobs; (10) was asked few questions by the defense; and (11)
did not ask to be excused from jury service. See App. 55–
57 (pretrial hearing); id., at 93–98, 105, 108, 110–112 (new
trial hearing); Record in No. 45609 (Ga. 1988), pp. 439–
440 (hereinafter Trial Record) (brief in opposition to new
trial).
The trial court accepted Lanier’s justifications, concluding that “[i]n the totality of circumstances,” there was “no
discriminatory intent, and that there existed reasonably
clear, specific, and legitimate reasons” for the strike. App.
143. On their face, Lanier’s justifications for the strike
seem reasonable enough. Our independent examination of
the record, however, reveals that much of the reasoning
provided by Lanier has no grounding in fact.
Lanier’s misrepresentations to the trial court began
with an elaborate explanation of how he ultimately came
to strike Garrett:
“[T]he prosecution considered this juror [to have] the
most potential to choose from out of the four remaining blacks in the 42 [member] panel venire. However,
a system of events took place on the morning of jury
Cite as: 578 U. S. ____ (2016)
13
Opinion of the Court
selection that caused the excusal of this juror. The
[S]tate had, in his jury notes, listed this juror as questionable. The four negative challenges were allocated
for Hardge, Hood, Turner and Powell. . . . But on the
morning of jury selection, Juror Powell was excused
for cause with no objections by [d]efense counsel. She
was replaced by Juror Cadle [who] was acceptable to
the State. This left the State with an additional
strike it had not anticipated or allocated. Consequently, the State had to choose between [white] Juror Blackmon or Juror Garrett, the only two questionable jurors the State had left on the list.” Trial Record
438–440 (brief in opposition to new trial) (emphasis
added and citations omitted).
Lanier then offered an extensive list of reasons for
striking Garrett and explained that “[t]hese factors, with
no reference to race, were considered by the prosecutor in
this particular case to result in a juror less desirable from
the prosecutor’s viewpoint than Juror Blackmon.” Id., at
441 (emphasis deleted).
Lanier then compared Blackmon to Garrett. In contrast
to Garrett, Juror Blackmon
“was 46 years old, married 13 years to her husband
who works at GE, buying her own home and [was recommended by a third party to] this prosecutor. She
was no longer employed at Northwest Georgia Regional Hospital and she attended Catholic church on
an irregular basis. She did not hesitate when answering the questions concerning the death penalty, had
good eye contact with the prosecutor and gave good
answers on the insanity issue. She was perceived by
the prosecutor as having a stable home environment,
of the right age and no association with any disadvantaged youth organizations.” Ibid.
Lanier concluded that “the chances of [Blackmon] return-
14
FOSTER v. CHATMAN
Opinion of the Court
ing a death sentence were greater when all these factors
were considered than Juror Garrett. Consequently, Juror
Garrett was excused.” Ibid.
The trial court accepted this explanation in denying
Foster’s motion for a new trial. See App. 142–143. But
the predicate for the State’s account—that Garrett was
“listed” by the prosecution as “questionable,” making that
strike a last-minute race-neutral decision—was false.
During jury selection, the State went first. As a consequence, the defense could accept any prospective juror not
struck by the State without any further opportunity for
the State to use a strike against that prospective juror.
Accordingly, the State had to “pretty well select the ten
specific people [it] intend[ed] to strike” in advance. Id., at
83 (pretrial hearing); accord, ibid. (“[T]he ten people that
we felt very uncomfortable with, we have to know up
front.” (Lanier testimony)). The record evidence shows
that Garrett was one of those “ten specific people.”
That much is evident from the “definite NO’s” list in the
prosecution’s file. Garrett’s name appeared on that list,
which the State concedes was written by one of the prosecutors. Tr. of Oral Arg. 45. That list belies Lanier’s assertion that the State considered allowing Garrett to serve.
The title of the list meant what it said: Garrett was a
“definite NO.” App. 301 (emphasis added). The State from
the outset was intent on ensuring that none of the jurors
on that list would serve.
The first five names on the “definite NO’s” list were
Eddie Hood, Evelyn Hardge, Shirley Powell, Marilyn
Garrett, and Mary Turner. All were black. The State
struck each one except Powell (who, as discussed, was
excused for cause at the last minute—though the prosecution informed the trial court that the “State was not,
under any circumstances, going to take [Powell],” Trial
Record 439 (brief in opposition to new trial)). Only in the
number six position did a white prospective juror appear,
Cite as: 578 U. S. ____ (2016)
15
Opinion of the Court
and she had informed the court during voir dire that she
could not “say positively” that she could impose the death
penalty even if the evidence warranted it. 6 Tr. in No. 86–
2218–2 (Super. Ct. Floyd Cty., Ga., 1987), p. 1152 (hereinafter Trial Transcript); see also id., at 1153–1158. In
short, contrary to the prosecution’s submissions, the
State’s resolve to strike Garrett was never in doubt. See
also App. 290 (“N” appears next to Garrett’s name on juror
list); id., at 300 (same).
The State attempts to explain away the contradiction
between the “definite NO’s” list and Lanier’s statements to
the trial court as an example of a prosecutor merely “misspeak[ing].” Brief for Respondent 51. But this was not
some off-the-cuff remark; it was an intricate story expounded by the prosecution in writing, laid out over three
single-spaced pages in a brief filed with the trial court.
Moreover, several of Lanier’s reasons for why he chose
Garrett over Blackmon are similarly contradicted by the
record. Lanier told the court, for example, that he struck
Garrett because “the defense did not ask her questions
about” pertinent trial issues such as her thoughts on
“insanity” or “alcohol,” or “much questions on publicity.”
App. 56 (pretrial hearing). But the trial transcripts reveal
that the defense asked her several questions on all three
topics. See 5 Trial Transcript 955–956 (two questions on
insanity and one on mental illness); ibid. (four questions
on alcohol); id., at 956–957 (five questions on publicity).
Still other explanations given by the prosecution, while
not explicitly contradicted by the record, are difficult to
credit because the State willingly accepted white jurors
with the same traits that supposedly rendered Garrett an
unattractive juror. Lanier told the trial court that he
struck Garrett because she was divorced. App. 56 (pretrial hearing). But he declined to strike three out of the
four prospective white jurors who were also divorced. See
Juror Questionnaire in No. 86–2218–2 (Super. Ct. Floyd
16
FOSTER v. CHATMAN
Opinion of the Court
Cty., Ga., 1987) (hereinafter Juror Questionnaire), for
Juror No. 23, p. 2 (juror Coultas, divorced); id., No. 33, p. 2
(juror Cochran, divorced); id., No. 107, p. 2 (juror Hatch,
divorced); App. 23–24, 31 (State accepting jurors Coultas,
Cochran, and Hatch). Additionally, Lanier claimed that
he struck Garrett because she was too young, and the
“State was looking for older jurors that would not easily
identify with the defendant.” Trial Record 439; see App.
55 (pretrial hearing). Yet Garrett was 34, and the State
declined to strike eight white prospective jurors under the
age of 36. See Trial Record 439; Juror Questionnaire No.
4, p. 1; id., No. 10, p. 1; id., No. 23, p. 1; id., No. 48, p. 1;
id., No. 70, p. 1; id., No. 71, p. 1; id., No. 92, p. 1; id., No.
106, p. 1; see App. 22–31. Two of those white jurors
served on the jury; one of those two was only 21 years old.
See id., at 35.
Lanier also explained to the trial court that he struck
Garrett because he “felt that she was less than truthful” in
her answers in voir dire. Id., at 108 (new trial hearing).
Specifically, the State pointed the trial court to the following exchange:
“[Court]: Are you familiar with the neighborhood where [the victim] lived, North Rome? “[Garrett]: No.” 5 Trial Transcript 950–951. Lanier, in explaining the strike, told the trial court that
in apparent contradiction to that exchange (which represented the only time that Garrett was asked about the
topic during voir dire), he had “noted that [Garrett] attended Main High School, which is only two blocks from
where [the victim] lived and certainly in the neighborhood.
She denied any knowledge of the area.” Trial Record 439
(brief in opposition to new trial).
We have no quarrel with the State’s general assertion
that it “could not trust someone who gave materially
untruthful answers on voir dire.” Foster, 258 Ga., at 739,
Cite as: 578 U. S. ____ (2016)
17
Opinion of the Court
374 S. E. 2d, at 192. But even this otherwise legitimate
reason is difficult to credit in light of the State’s acceptance of (white) juror Duncan. Duncan gave practically
the same answer as Garrett did during voir dire:
“[Court]: Are you familiar with the neighborhood in
which [the victim] live[d]?
“[Duncan]: No. I live in Atteiram Heights, but it’s
not—I’m not familiar with up there, you know.” 5
Trial Transcript 959.
But, as Lanier was aware, Duncan’s “residence [was] less
than a half a mile from the murder scene” and her workplace was “located less than 250 yards” away. Trial Record 430 (brief in opposition to new trial).
In sum, in evaluating the strike of Garrett, we are not
faced with a single isolated misrepresentation.
C
We turn next to the strike of Hood. According to Lanier,
Hood “was exactly what [the State] was looking for in
terms of age, between forty and fifty, good employment
and married.” App. 44 (pretrial hearing). The prosecution
nonetheless struck Hood, giving eight reasons for doing so.
Hood: (1) had a son who was the same age as the defendant and who had previously been convicted of a crime; (2)
had a wife who worked in food service at the local mental
health institution; (3) had experienced food poisoning
during voir dire; (4) was slow in responding to death penalty questions; (5) was a member of the Church of Christ;
(6) had a brother who counseled drug offenders; (7) was
not asked enough questions by the defense during
voir dire; and (8) asked to be excused from jury service.
See id., at 44–47; id., at 86, 105, 110–111 (new trial hearing); Trial Record 433–435 (brief in opposition to new
trial). An examination of the record, however, convinces
us that many of these justifications cannot be credited.
18
FOSTER v. CHATMAN
Opinion of the Court
As an initial matter, the prosecution’s principal reasons
for the strike shifted over time, suggesting that those
reasons may be pretextual. In response to Foster’s pretrial Batson challenge, District Attorney Lanier noted all
eight reasons, but explained:
“The only thing I was concerned about, and I will state
it for the record. He has an eighteen year old son
which is about the same age as the defendant.
“In my experience prosecuting over twenty-five
murder cases . . . individuals having the same son as
[a] defendant who is charged with murder [have] serious reservations and are more sympathetic and lean
toward that particular person.
“It is ironic that his son, . . . Darrell Hood[,] has
been sentenced . . . by the Court here, to theft by taking on April 4th, 1982. . . . [T]heft by taking is basically the same thing that this defendant is charged
with.” App. 44–45 (pretrial hearing; emphasis added).
But by the time of Foster’s subsequent motion for a new
trial, Lanier’s focus had shifted. He still noted the similarities between Hood’s son and Foster, see id., at 105 (new
trial hearing), but that was no longer the key reason
behind the strike. Lanier instead told the court that his
paramount concern was Hood’s membership in the Church
of Christ: “The Church of Christ people, while they may
not take a formal stand against the death penalty, they
are very, very reluctant to vote for the death penalty.” Id.,
at 84 (new trial hearing); accord, Trial Record 434–435 (“It
is the opinion of this prosecutor that in a death penalty
case, Church of Christ affiliates are reluctant to return a
verdict of death.” (brief in opposition to new trial)). Hood’s
religion, Lanier now explained, was the most important
factor behind the strike: “I evaluated the whole Eddie
Hood. . . . And the bottom line on Eddie Hood is the
Church of Christ affiliation.” App. 110–111 (new trial
Cite as: 578 U. S. ____ (2016)
19
Opinion of the Court
hearing; emphasis added).
Of course it is possible that Lanier simply misspoke in
one of the two proceedings. But even if that were so, we
would expect at least one of the two purportedly principal
justifications for the strike to withstand closer scrutiny.
Neither does.
Take Hood’s son. If Darrell Hood’s age was the issue,
why did the State accept (white) juror Billy Graves, who
had a 17-year-old son? Juror Questionnaire No. 31, p. 3;
see App. 24. And why did the State accept (white) juror
Martha Duncan, even though she had a 20-year-old son?
Juror Questionnaire No. 88, p. 3; see App. 30.
The comparison between Hood and Graves is particularly salient. When the prosecution asked Hood if Foster’s
age would be a factor for him in sentencing, he answered
“None whatsoever.” Trial Transcript 280. Graves, on the
other hand, answered the same question “probably so.”
Id., at 446. Yet the State struck Hood and accepted
Graves.
The State responds that Duncan and Graves were not
similar to Hood because Hood’s son had been convicted of
theft, while Graves’s and Duncan’s sons had not. See
Brief for Respondent 34–35; see also App. 135–136 (“While
the defense asserts that the state used different standards
for white jurors, insofar as many of them had children
near the age of the Defendant, the Court believes that
[Darrell Hood’s] conviction is a distinction that makes the
difference.” (trial court opinion denying new trial)). Lanier had described Darrell Hood’s conviction to the trial
court as being for “basically the same thing that this
defendant is charged with.” Id., at 45 (pretrial hearing).
Nonsense. Hood’s son had received a 12-month suspended
sentence for stealing hubcaps from a car in a mall parking
lot five years earlier. Trial Record 446. Foster was
charged with capital murder of a 79-year-old widow after a
brutal sexual assault. The “implausible” and “fantastic”
20
FOSTER v. CHATMAN
Opinion of the Court
assertion that the two had been charged with “basically
the same thing” supports our conclusion that the focus on
Hood’s son can only be regarded as pretextual. Miller-El
v. Cockrell, 537 U. S. 322, 339 (2003); see also ibid. (“Credibility can be measured by, among other factors, . . . how
reasonable, or how improbable, the [State’s] explanations
are.”).
The prosecution’s second principal justification for
striking Hood—his affiliation with the Church of Christ,
and that church’s alleged teachings on the death penalty—
fares no better. Hood asserted no fewer than four times
during voir dire that he could impose the death penalty.5
A prosecutor is entitled to disbelieve a juror’s voir dire
answers, of course. But the record persuades us that
Hood’s race, and not his religious affiliation, was Lanier’s
true motivation.
The first indication to that effect is Lanier’s mischaracterization of the record. On multiple occasions, Lanier
asserted to the trial court that three white prospective
jurors who were members of the Church of Christ had
been struck for cause due to their opposition to the death
penalty. See App. 46 (“[Hood’s] religious preference is
Church of Christ. There have been [three] other jurors
that have been excused for cause by agreement that belong to the Church of Christ, Juror No. 35, 53, and 78.”
(pretrial hearing)); id., at 114 (“Three out of four jurors
who professed to be members of the Church of Christ,
——————
5 See 2 Trial Transcript 269 (“[Court]: Are you opposed to or against
the death penalty? A: I am not opposed to it. Q: If the facts and circumstances warrant the death penalty, are you prepared to vote for the
death penalty? A: Yes.”); id., at 270 (“[Court]: [A]re you prepared to
vote for the death penalty? Now you said yes to that. A: All right. Q:
Are you still saying yes? A: Uh-huh.”); id., at 274 (“[Court]: If the
evidence warrants the death penalty, could you vote for the death
penalty? A: Yes. I could vote for the death penalty.”); id., at 278
(“[Pullen]: And if the facts and circumstances warranted, you could vote
to impose the death penalty? Yes.”).
Cite as: 578 U. S. ____ (2016)
21
Opinion of the Court
went off for [cause related to opposition to the death penalty].” (new trial hearing)); Trial Record 435 (“Church of
Christ jurors Terry (#35), Green (#53), and Waters (#78)
[were] excused for cause due to feeling[s] against the
death penalty.” (brief in opposition to new trial)).
That was not true. One of those prospective jurors was
excused before even being questioned during voir dire
because she was five-and-a-half months pregnant. 5 Trial
Transcript 893. Another was excused by the agreement of
both parties because her answers on the death penalty
made it difficult to ascertain her precise views on capital
punishment. See Brief for Respondent 39 (“[I]t was entirely
unclear if [this juror] understood any of the trial court’s
questions and her answers are equivocal at best.”). And
the judge found cause to dismiss the third because she had
already formed an opinion about Foster’s guilt. See 3
Trial Transcript 558 (“[Court]: And you have made up
your mind already as to the guilt of the accused? A: Yes,
sir. [Court]: I think that’s cause.”).
The prosecution’s file fortifies our conclusion that any
reliance on Hood’s religion was pretextual. The file contains a handwritten document titled “Church of Christ.”
The document notes that the church “doesn’t take a stand
on [the] Death Penalty,” and that the issue is “left for each
individual member.” App. 302. The document then states:
“NO. NO Black Church.” Ibid. The State tries to downplay the significance of this document by emphasizing that
the document’s author is unknown. That uncertainty is
pertinent. But we think the document is nonetheless
entitled to significant weight, especially given that it is
consistent with our serious doubts about the prosecution’s
account of the strike.
Many of the State’s secondary justifications similarly
come undone when subjected to scrutiny. Lanier told the
trial court that Hood “appeared to be confused and slow in
responding to questions concerning his views on the death
22
FOSTER v. CHATMAN
Opinion of the Court
penalty.” Trial Record 434 (brief in opposition to new
trial). As previously noted, however, Hood unequivocally
voiced his willingness to impose the death penalty, and a
white juror who showed similar confusion served on the
jury. Compare 5 Trial Transcript 1100–1101 (white juror
Huffman’s answers) with 2 id., at 269–278 (Hood’s answers); see App. 35. According to the record, such confusion was not uncommon. See id., at 138 (“The Court notes
that [Hood’s] particular confusion about the death penalty
questions was not unusual.”); accord, 5 Trial Transcript
994 (“[Court]: I think these questions should be reworded.
I haven’t had a juror yet that understood what that
meant.”); id., at 1101–1102 (“[Court]: I still say that these
questions need changing overnight, because one out of a
hundred jurors, I think is about all that’s gone along with
knowing what [you’re asking].”).
Lanier also stated that he struck Hood because Hood’s
wife worked at Northwest Regional Hospital as a food
services supervisor. App. 45 (pretrial hearing). That
hospital, Lanier explained, “deals a lot with mentally
disturbed, mentally ill people,” and so people associated
with it tend “to be more sympathetic to the underdog.”
Ibid. But Lanier expressed no such concerns about white
juror Blackmon, who had worked at the same hospital.
Blackmon, as noted, served on the jury.
Lanier additionally stated that he struck Hood because
the defense “didn’t ask [Hood] any question[s] about the
age of the defendant,” “his feelings about criminal responsibility involved in insanity,” or “publicity.” Id., at 47. Yet
again, the trial transcripts clearly indicate the contrary.
See 2 Trial Transcript 280 (“Q: Is age a factor to you in
trying to determine whether or not a defendant should
receive a life sentence or a death sentence? A: None whatsoever.”); ibid. (“Q: Do you have any feeling about the
insanity defense? A: Do I have any opinion about that? I
have not formed any opinion about that.”); id., at 281 (“Q:
Cite as: 578 U. S. ____ (2016)
23
Opinion of the Court
Okay. The publicity that you have heard, has that publicity affected your ability to sit as a juror in this case and
be fair and impartial to the defendant? A: No, it has no
effect on me.”).
D
As we explained in Miller-El v. Dretke, “[i]f a prosecutor’s proffered reason for striking a black panelist applies
just as well to an otherwise-similar nonblack [panelist]
who is permitted to serve, that is evidence tending to
prove purposeful discrimination.” 545 U. S. 231, 241
(2005). With respect to both Garrett and Hood, such
evidence is compelling. But that is not all. There are also
the shifting explanations, the misrepresentations of the
record, and the persistent focus on race in the prosecution’s file. Considering all of the circumstantial evidence
that “bear[s] upon the issue of racial animosity,” we are
left with the firm conviction that the strikes of Garrett
and Hood were “motivated in substantial part by discriminatory intent.” Snyder, 552 U. S., at 478, 485.6
IV
Throughout all stages of this litigation, the State has
strenuously objected that “race [was] not a factor” in its
jury selection strategy. App. 41 (pretrial hearing); but see
id., at 120 (Lanier testifying that the strikes were “based
on many factors and not purely on race.” (emphasis added)
(new trial hearing)). Indeed, at times the State has been
downright indignant. See Trial Record 444 (“The Defenses’s [sic] misapplication of the law and erroneous distor——————
6 In Snyder, we noted that we had not previously allowed the prosecution to show that “a discriminatory intent [that] was a substantial or
motivating factor” behind a strike was nevertheless not “determinative”
to the prosecution’s decision to exercise the strike. 552 U. S., at 485.
The State does not raise such an argument here and so, as in Snyder,
we need not decide the availability of such a defense.
24
FOSTER v. CHATMAN
Opinion of the Court
tion of the facts are an attempt to discredit the prosecutor. . . . The State and this community demand an
apology.” (brief in opposition to new trial)).
The contents of the prosecution’s file, however, plainly
belie the State’s claim that it exercised its strikes in a
“color-blind” manner. App. 41, 60 (pretrial hearing). The
sheer number of references to race in that file is arresting.
The State, however, claims that things are not quite as
bad as they seem. The focus on black prospective jurors, it
contends, does not indicate any attempt to exclude them
from the jury. It instead reflects an effort to ensure that
the State was “thoughtful and non-discriminatory in [its]
consideration of black prospective jurors [and] to develop
and maintain detailed information on those prospective
jurors in order to properly defend against any suggestion
that decisions regarding [its] selections were pretextual.”
Brief for Respondent 6. Batson, after all, had come down
only months before Foster’s trial. The prosecutors, according to the State, were uncertain what sort of showing
might be demanded of them and wanted to be prepared.
This argument falls flat. To begin, it “reeks of afterthought,” Miller-El, 545 U. S., at 246, having never before
been made in the nearly 30-year history of this litigation:
not in the trial court, not in the state habeas court, and
not even in the State’s brief in opposition to Foster’s petition for certiorari.
In addition, the focus on race in the prosecution’s file
plainly demonstrates a concerted effort to keep black
prospective jurors off the jury. The State argues that it
“was actively seeking a black juror.” Brief for Respondent
12; see also App. 99 (new trial hearing). But this claim is
not credible. An “N” appeared next to each of the black
prospective jurors’ names on the jury venire list. See, e.g.,
id., at 253. An “N” was also noted next to the name of
each black prospective juror on the list of the 42 qualified
prospective jurors; each of those names also appeared on
Cite as: 578 U. S. ____ (2016)
25
Opinion of the Court
the “definite NO’s” list. See id., 299–301. And a draft
affidavit from the prosecution’s investigator stated his
view that “[i]f it comes down to having to pick one of the
black jurors, [Marilyn] Garrett, might be okay.” Id., at
345 (emphasis added); see also ibid. (recommending Garrett “if we had to pick a black juror” (emphasis added)).
Such references are inconsistent with attempts to “actively
see[k]” a black juror.
The State’s new argument today does not dissuade us
from the conclusion that its prosecutors were motivated in
substantial part by race when they struck Garrett and
Hood from the jury 30 years ago. Two peremptory strikes
on the basis of race are two more than the Constitution
allows.
The order of the Georgia Supreme Court is reversed,
and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
Cite as: 578 U. S. ____ (2016)
1
ALITO, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–8349
_________________
TIMOTHY TYRONE FOSTER, PETITIONER v. BRUCE
CHATMAN, WARDEN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA
[May 23, 2016] JUSTICE ALITO, concurring in the judgment.
I agree with the Court that the decision of the Supreme
Court of Georgia cannot be affirmed and that the case
must be remanded. I write separately to explain my
understanding of the role of state law in the proceedings
that must be held on remand.
I
As the Court recounts, in August 1986, Queen Madge
White, a 79-year-old retired schoolteacher, was sexually
assaulted and brutally murdered in her home in Rome,
Georgia. Her home was ransacked, and various household
items were stolen. Foster v. State, 258 Ga. 736, 374
S. E. 2d 188 (1988). About a month after the murder,
police officers were called to respond to a local disturbance. The complainant, Lisa Stubbs, told them that her
boyfriend, petitioner Timothy Foster, had killed White and
had distributed the goods stolen from White’s home to
Stubbs and family members. Tr. 1719–1723. Officers
arrested Foster, who confessed to the murder and robbery,
258 Ga., at 736, 374 S. E. 2d, at 190, and the police recovered some of the stolen goods.
Foster was put on trial for White’s murder, convicted,
and sentenced to death. Before, during, and after his trial,
Foster argued that the prosecution violated his rights
2
FOSTER v. CHATMAN
ALITO, J., concurring in judgment
under this Court’s then-recent decision in Batson v. Kentucky, 476 U. S. 79 (1986), by peremptorily challenging all
the prospective jurors who were black. After the Georgia
Supreme Court rejected Foster’s Batson argument on
direct appeal, he filed a petition for a writ of certiorari in
this Court, but his petition did not raise a Batson claim,1
and the petition was denied. Foster v. Georgia, 490 U. S.
1085 (1989).
In July 1989, Foster filed a state habeas petition in the
Superior Court of Butts County, Georgia. For the next 10
years, most of Foster’s claims (including his Batson claim)
were held in abeyance while the Georgia courts adjudicated Foster’s claim that he is “mentally retarded” and thus
cannot be executed under Georgia law. Zant v. Foster, 261
Ga. 450, 406 S. E. 2d 74 (1991). After extensive court
proceedings, including two visits to the State Supreme
Court,2 additional petitions for certiorari to this Court,3
and a jury trial on the issue of intellectual disability,
Foster was denied relief on that claim. He then amended
his habeas petition, and the Superior Court considered the
many other claims asserted in his petition, including his
Batson claim. In support of that claim, Foster offered new
evidence, namely, the prosecution’s jury selection notes,
which he had obtained through a Georgia open-records
request. These notes showed that someone had highlighted
the names of black jurors and had written the letter “B”
next to their names.
The Superior Court issued a written decision in which it
evaluated Foster’s habeas claims. The opinion began by
noting that many of his claims were barred by res judi——————
1 Nor did his petition for rehearing, which was also denied. Foster v.
Georgia, 492 U. S. 928 (1989).
2 See Zant v. Foster, 261 Ga. 450, 406 S. E. 2d 74 (1991); Foster v.
State, 272 Ga. 69, 525 S. E. 2d 78 (2000).
3 See Foster v. Georgia, 503 U. S. 921 (1992); Foster v. Georgia, 531
U. S. 890, reh’g denied, 531 U. S. 1045 (2000).
Cite as: 578 U. S. ____ (2016)
3
ALITO, J., concurring in judgment
cata. The opinion stated: “[T]his court notes . . . that the
following claims are not reviewable based on the doctrine
of res judicata, as the claims were raised and litigated
adversely to the petitioner on his direct appeal to the
Georgia Supreme Court.” App. 175. Included in the list of
barred claims was “Petitioner[’s] alleg[ation] that the
State used peremptory challenges in a racially discriminatory manner in violation of Batson.” Id., at 175–176.
Later in its opinion, the Superior Court again referred
to the Batson claim and wrote as follows:
“The Respondent argues that this claim is not reviewable due to the doctrine of res judicata. However, because the Petitioner claims that additional evidence
allegedly supporting this ground was discovered subsequent to the Georgia Supreme Court’s ruling in Foster v. State, 258 Ga. 736 (1988) [the decision affirming
Foster’s conviction on direct appeal], this court will
review the Batson claim as to whether Petitioner has
shown any change in the facts sufficient to overcome
the res judicata bar.” Id., at 192.
The court then reviewed the evidence and concluded that
it “[could not] find that the highlighting of the names of
black jurors and the notation of their race can serve to
override this previous consideration [on direct appeal].”
Id., at 193. Because “all jurors in this case, regardless of
race, were thoroughly investigated and considered before
the State exercised its peremptory challenges,” the court
found that “Petitioner fail[ed] to demonstrate purposeful
discrimination on the basis that the race of prospective
jurors was either circled, highlighted or otherwise noted
on various lists.” Id., at 195. Thus, the court held that the
Batson claim was “without merit.” App. 196.
Foster subsequently sought review of the Superior
Court’s decision in the Georgia Supreme Court, but that
court refused to issue a certificate of probable cause (CPC)
4
FOSTER v. CHATMAN
ALITO, J., concurring in judgment
to appeal. In its entirety, the State Supreme Court order
states:
“Upon consideration of the Application for Certificate of Probable Cause to appeal the denial of habeas
corpus, it is ordered that it be hereby denied. All the
Justices concur, except Benham, J., who dissents.”
Id., at 246.
Foster sought review of this decision, and this Court
granted certiorari to review the decision of the Georgia
Supreme Court. 575 U. S. ___ (2015).
II
The decision of the Georgia Supreme Court was a decision on the merits of Foster’s Batson claim, as presented
in his state habeas petition. See Ga. Sup. Ct. Rule 36
(2016) (a CPC to appeal a final judgment in a habeas
corpus case involving a criminal conviction “will be issued
where there is arguable merit”); Hittson v. Warden, 759 F.
3d 1210, 1232 (CA11 2014) (The Georgia Supreme Court’s
standard for denying a CPC “clearly constitutes an adjudication on the merits”). Thus, what the Georgia Supreme
Court held was that Foster’s Batson claim, as presented in
his state habeas petition, lacked arguable merit.
That holding was likely based at least in part on state
law. As noted, the Superior Court quite clearly held that
Foster’s Batson claim was barred by res judicata. That
conclusion, to be sure, was not entirely divorced from the
merits of his federal constitutional claim, since the court
went on to discuss the evidence advanced by petitioner in
support of his argument that the prosecution’s strikes of
black members of the venire were based on race. Rather,
it appears that the Superior Court understood state law to
permit Foster to obtain reconsideration of his previously
rejected Batson claim only if he was able to show that a
“change in the facts” was “sufficient to overcome the res
Cite as: 578 U. S. ____ (2016)
5
ALITO, J., concurring in judgment
judicata bar.” App. 192.
In concluding that Foster’s renewed Batson claim was
required to meet a heightened standard, the Superior
Court appears to have been following established Georgia
law. Some Georgia cases seem to stand for the proposition
that the bar is absolute, at least in some circumstances.
See, e.g., Roulain v. Martin, 266 Ga. 353, 466 S. E. 2d 837,
839 (1996) (“Since this issue was raised and resolved in
Martin’s direct appeal, it should not have been readdressed by the habeas court”); Davis v. Thomas, 261 Ga.
687, 689, 410 S. E. 2d 110, 112 (1991) (“This issue was
raised on direct appeal, and this court determined that it
had no merit. Davis recognizes the principle that one who
had an issue decided adversely to him on direct appeal is
precluded from relitigating that issue on habeas corpus”);
Gunter v. Hickman, 256 Ga. 315, 316, 348 S. E. 2d 644,
645 (1986) (“This issue was actually litigated, i.e., raised
and decided, in the appellant’s direct appeal . . . . For this
reason, the issue cannot be reasserted in habeas-corpus
proceedings”); Elrod v. Ault, 231 Ga. 750, 204 S. E. 2d 176
(1974) (“After an appellate review the same issues will not
be reviewed on habeas corpus”). Other decisions, however,
allow a defendant to overcome res judicata if he can produce newly discovered evidence that was not “reasonably
available” to him on direct review. Gibson v. Head, 282
Ga. 156, 159, 646 S. E. 2d 257, 260 (2007); see also Gibson
v. Ricketts, 244 Ga. 482, 483, 260 S. E. 2d 877, 878 (1979).4
——————
4 Georgia res judicata law may also include a “miscarriage of justice”
exception, but that appears to capture only the exceptionally rare claim
of actual innocence, and so is not at issue here. See Walker v. Penn, 271
Ga. 609, 611, 523 S. E. 2d 325, 327 (1999) (“The term miscarriage of
justice is by no means to be deemed synonymous with procedural irregularity, or even with reversible error. To the contrary, it demands a much
greater substance, approaching perhaps the imprisonment of one who,
not only is not guilty of the specific offense for which he is convicted, but,
further, is not even culpable in the circumstances under inquiry. (A plain
example is a case of mistaken identity)” (brackets omitted)).
6
FOSTER v. CHATMAN
ALITO, J., concurring in judgment
In restricting the relitigation of previously rejected
claims, Georgia is not alone. “[W]e have long and consistently affirmed that a collateral challenge may not do
service for an appeal.” United States v. Frady, 456 U. S.
152, 165 (1982). Accordingly, at least as a general rule,
federal prisoners may not use a motion under 28 U. S. C.
§2255 to relitigate a claim that was previously rejected on
direct appeal. See, e.g., Reed v. Farley, 512 U. S. 339, 358
(1994) (Scalia, J., concurring in part and concurring in
judgment) (“[C]laims will ordinarily not be entertained
under §2255 that have already been rejected on direct
review”); Withrow v. Williams, 507 U. S. 680, 721 (1993)
(Scalia, J., concurring in part and dissenting in part)
(“[A]bsent countervailing considerations, district courts
may refuse to reach the merits of a constitutional claim
previously raised and rejected on direct appeal”); United
States v. Lee, 715 F. 3d 215, 224 (CA8 2013); Rozier v.
United States, 701 F. 3d 681, 684 (CA11 2012); United
States v. Roane, 378 F. 3d 382, 396, n. 7 (CA4 2004); United
States v. Webster, 392 F. 3d 787, 791 (CA5 2004); White
v. United States, 371 F. 3d 900, 902 (CA7 2004); United
States v. Jones, 918 F. 2d 9, 10–11 (CA2 1990); United
States v. Prichard, 875 F. 2d 789, 790–791 (CA10 1989).
Cf. Davis v. United States, 417 U. S. 333, 342 (1974). As
we have said, “[i]t has, of course, long been settled law
that an error that may justify reversal on direct appeal
will not necessarily support a collateral attack on a final
judgment. The reasons for narrowly limiting the grounds
for collateral attack on final judgments are well known
and basic to our adversary system of justice.” United
States v. Addonizio, 442 U. S. 178, 184 (1979) (footnote
omitted).
In accordance with this principle, federal law provides
that a state prisoner may not relitigate a claim that was
rejected in a prior federal habeas petition. See 28 U. S. C.
§§2244(b)(1)–(3). And even when a state prisoner’s second
Cite as: 578 U. S. ____ (2016)
7
ALITO, J., concurring in judgment
or successive federal habeas petition asserts a new federal
constitutional claim based on what is asserted to be new
evidence, the claim must be dismissed unless a very demanding test is met. See §2244(b)(2)(B) (“[T]he factual
predicate for the claim could not have been discovered
previously through the exercise of due diligence”; and the
facts must “be sufficient to establish by clear and convincing evidence that . . . no reasonable factfinder would have
found the applicant guilty”).
“[T]he principle of finality” is “essential to the operation
of our criminal justice system.” Teague v. Lane, 489 U. S.
288, 309 (1989) (plurality opinion). Thus, once a criminal
conviction becomes final—as Foster’s did 30 years ago—
state courts need not remain open indefinitely to relitigate
claims related to that conviction which were raised and
decided on direct review. States are under no obligation to
permit collateral attacks on convictions that have become
final, and if they allow such attacks, they are free to limit
the circumstances in which claims may be relitigated.
To the extent that the decision of the Georgia Supreme
Court was based on a state rule restricting the relitigation
of previously rejected claims, the decision has a state-law
component, and we have no jurisdiction to review a state
court’s decision on a question of state law. See 28 U. S. C.
§1257(a). This Court, no less than every other federal
court, has “an independent obligation to ensure that [we]
do not exceed the scope of [our] jurisdiction, and therefore
[we] must raise and decide jurisdictional questions that
the parties either overlook or elect not to press.” Henderson v. Shinseki, 562 U. S. 428, 434 (2011).
III
“This Court long has held that it will not consider an
issue of federal law on direct review from a judgment of a
state court if that judgment rests on a state-law ground
that is both ‘independent’ of the merits of the federal claim
8
FOSTER v. CHATMAN
ALITO, J., concurring in judgment
and an ‘adequate’ basis for the court’s decision,” Harris v.
Reed, 489 U. S. 255, 260 (1989), and like the Court (and
both petitioner and respondent) I agree that we cannot
conclude from the brief order issued by the Supreme Court
of Georgia that its decision was based wholly on state law.
It is entirely possible that the State Supreme Court
reached a conclusion about the effect of the state res judicata bar based in part on as assessment of the strength of
Foster’s Batson claim or the extent to which the new
evidence bolstered that claim. And if that is what the
State Supreme Court held, the rule that the court applied
was an amalgam of state and federal law.
By the same token, however, the state-law res judicata
rule applied by the Superior Court is clearly not like the
rule in Ake v. Oklahoma, 470 U. S. 68 (1985), which appears to have been entirely dependent on federal law. In
Ake, a prisoner argued that due process entitled him to
obtain the services of a psychiatrist in order to prove that
he was insane at the time when he committed a murder.
The Oklahoma courts concluded that Ake’s claim was
waived, but the Oklahoma waiver rule essentially made
an exception for any case in which there was a violation of
a fundamental federal constitutional right. See id., at 74–
75 (“The Oklahoma waiver rule does not apply to fundamental trial error,” including “federal constitutional errors
[that] are ‘fundamental’ ”). Thus, the state waiver rule
was entirely dependent on federal law, and this Court
therefore held that it had jurisdiction to review the underlying constitutional question—whether Ake was entitled
to a psychiatrist.
Then, having found a constitutional violation, the Court remanded for a new trial. Id.,
at 86–87.
The res judicata rule applied by the Superior Court in
this case is quite different. That court obviously did not
think that Georgia law included an Ake-like exception that
would permit a defendant to overcome res judicata simply
Cite as: 578 U. S. ____ (2016)
9
ALITO, J., concurring in judgment
by making the kind of showing of federal constitutional
error that would have been sufficient when the claim was
first adjudicated. Accordingly, Ake does not mean that we
can simply disregard the possibility that the decision
under review may have a state-law component.
Our cases chart the path that we must follow in a situation like the one present here. When “a state court’s
interpretation of state law has been influenced by an
accompanying interpretation of federal law,” the proper
course is for this Court to “revie[w] the federal question on
which the state-law determination appears to have been
premised. If the state court has proceeded on an incorrect
perception of federal law, it has been this Court’s practice
to vacate the judgment of the state court and remand the
case so that the court may reconsider the state-law question free of misapprehensions about the scope of federal
law.” Three Affiliated Tribes of Fort Berthold Reservation
v. Wold Engineering, P. C., 467 U. S. 138, 152 (1984). See
also S. Shapiro, K. Geller, T. Bishop, E. Hartnett, & D.
Himmelfarb, Supreme Court Practice 212 (10th ed. 2013).
In a situation like the one presented here, the correct
approach is for us to decide the question of federal law and
then to remand the case to the state court so that it can
reassess its decision on the state-law question in light of
our decision on the underlying federal issue.5
IV
I agree with the Court that the totality of the evidence
now adduced by Foster is sufficient to make out a Batson
violation. On remand, the Georgia Supreme Court is
——————
5 The Court relies on Ake solely for the proposition, with which I
agree, that we have jurisdiction to review the federal question whether
the totality of the circumstances (that is, all the facts brought to the
attention of the state courts on direct appeal and collateral review)
make out a Batson claim. Ante, at 9, n. 4. Thus, the Court does not
preclude consideration of state law issues on remand. See ante, at 25.
10
FOSTER v. CHATMAN
ALITO, J., concurring in judgment
bound to accept that evaluation of the federal question,
but whether that conclusion justifies relief under state res
judicata law is a matter for that court to decide.
Compliance with Batson is essential to ensure that
defendants receive a fair trial and to preserve the public
confidence upon which our system of criminal justice
depends. But it is also important that this Court respect
the authority of state courts to structure their systems of
postconviction review in a way that promotes the expeditious and definitive disposition of claims of error.
Until recently, this Court rarely granted review of statecourt decisions in collateral review proceedings, preferring
to allow the claims adjudicated in such proceedings to be
decided first in federal habeas proceedings. See Lawrence
v. Florida, 549 U. S. 327, 335 (2007) (“[T]his Court rarely
grants review at this stage of the litigation even when the
application for state collateral relief is supported by arguably meritorious federal constitutional claims, choosing
instead to wait for federal habeas proceedings” (internal
quotation marks omitted)); Kyles v. Whitley, 498 U. S. 931,
932 (1990) (Stevens, J., concurring in denial of stay of
execution); Huffman v. Florida, 435 U. S. 1014, 1017–1018
(1978) (Stevens, J., respecting denial of certiorari). When
cases reach this Court after habeas review in the lower
federal courts, the standards of review set out in the Antiterrorism and Effective Death Penalty Act of 1996, 28
U. S. C. §2254, apply. Recently, this Court has evidenced
a predilection for granting review of state-court decisions
denying postconviction relief, see, e.g., Wearry v. Cain, 577
U. S. __ (2016) (per curiam). Particularly in light of that
trend, it is important that we do not lightly brush aside
the States’ legitimate interest in structuring their systems
of postconviction review in a way that militates against
repetitive litigation and endless delay.
Cite as: 578 U. S. ____ (2016)
1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–8349
_________________
TIMOTHY TYRONE FOSTER, PETITIONER v. BRUCE
CHATMAN, WARDEN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA
[May 23, 2016] JUSTICE THOMAS, dissenting.
Thirty years ago, Timothy Foster confessed to murdering Queen Madge White after sexually assaulting her with
a bottle of salad dressing. In the decades since, Foster has
sought to vacate his conviction and death sentence on the
ground that prosecutors violated Batson v. Kentucky, 476
U. S. 79 (1986), when they struck all black prospective
jurors before his trial. Time and again, the state courts
have rejected that claim. The trial court twice rejected it,
and the Supreme Court of Georgia unequivocally rejected
it when Foster directly appealed his conviction and sentence. Foster v. State, 258 Ga. 736, 736, n. 1, 738–739, 374
S. E. 2d 188, 190, n. 1, 192 (1988), cert. denied, 490 U. S.
1085 (1989). A state habeas court rejected it in 2013.
App. 175–176, 192–196. And most recently, the Supreme
Court of Georgia again rejected it as lacking “arguable
merit,” Ga. Sup. Ct. Rule 36 (2001). See App. 246.
Yet, today—nearly three decades removed from
voir dire—the Court rules in Foster’s favor. It does so
without adequately grappling with the possibility that we
lack jurisdiction. Moreover, the Court’s ruling on the
merits, based, in part, on new evidence that Foster procured decades after his conviction, distorts the deferential
Batson inquiry. I respectfully dissent.
2
FOSTER v. CHATMAN
THOMAS, J., dissenting
I
Federal law authorizes us to review the “judgments or
decrees rendered by the highest court of a State in which a
decision could be had,” 28 U. S. C. §1257(a), but only if
such a judgment or decree raises a question of federal law,
Michigan v. Long, 463 U. S. 1032, 1038 (1983). The Court
today errs by assuming that the Supreme Court of Georgia’s one-line order—the “judgmen[t] . . . rendered by the
highest court of a State in which a decision could be had,”
§1257—raises such a question. See ante, at 7–8. The far
more likely explanation for the court’s denial of habeas
relief is that Foster’s claim is procedurally barred. This
disposition is ordinarily a question of state law that this
Court is powerless to review. Before addressing the merits of Foster’s Batson claim, the Court should have sought
clarification that the resolution of a federal question was
implicated in the Georgia high court’s decision.
A
The Supreme Court of Georgia’s order in this case states
in full: “Upon consideration of the Application for Certificate of Probable Cause to appeal the denial of habeas
corpus, it is ordered that it be hereby denied.” App. 246.
Neither that order nor Georgia law provides adequate
assurance that this case raises a federal question.
Under Georgia law, a state prisoner may file a state
habeas petition in a state superior court. Ga. Code Ann.
§§9–14–41 to 9–14–43 (2015). If the state superior court
denies the petition, then the prisoner may appeal to the
Supreme Court of Georgia, which has exclusive jurisdiction over habeas corpus cases, by timely filing a notice of
appeal in the superior court and applying for a certificate
of probable cause in the supreme court. See Fullwood v.
Sivley, 271 Ga. 248, 250–251, 517 S. E. 2d 511, 513–515
(1999) (discussing requirements of §9–14–52). Much like
certificates of appealability in federal court, Miller-El v.
Cite as: 578 U. S. ____ (2016)
3
THOMAS, J., dissenting
Cockrell, 537 U. S. 322, 336 (2003), a Georgia prisoner
must establish in his application that at least one of his
claims has “arguable merit.” Ga. Sup. Ct. Rule 36. If he
cannot, the Supreme Court of Georgia summarily denies
relief by denying the certificate of probable cause. Ibid.;
see also §9–14–52(b); Hittson v. GDCP Warden, 759 F. 3d
1210, 1231–1232 (CA11 2014). If he can, then the court
affords plenary review of the arguably meritorious claim.
See, e.g., Sears v. Humphrey, 294 Ga. 117, 117–118, 751
S. E. 2d 365, 368 (2013); Hillman v. Johnson, 297 Ga. 609,
611, 615, n. 5, 774 S. E. 2d 615, 617, 620, n. 5 (2015). The
most we can glean, therefore, from the summary denial of
Foster’s state habeas petition is that the Supreme Court of
Georgia concluded that Foster’s claim lacked “arguable
merit.”
The most obvious ground for deciding that Foster’s
claim lacked “arguable merit” is that the Supreme Court
of Georgia already considered that claim and rejected it
decades ago.1 Georgia law prohibits Foster from raising
the same claim anew in his state habeas petition. See,
——————
1 That
is obvious, in part, because the Superior Court rested on this
procedural bar to deny Foster’s Batson claim. See, e.g., App. 175–176.
We need not blind ourselves to that lurking state-law ground merely
because the Supreme Court of Georgia denied relief in an unexplained
order. As we would do in the federal habeas context, we may “look
through” to the last reasoned state-court opinion to discern whether
that opinion rested on state-law procedural grounds. Ylst v. Nunnemaker, 501 U. S. 797, 806 (1991). If “the last reasoned opinion on the
claim explicitly imposes a procedural default,” then there is a rebuttable presumption “that a later decision rejecting the claim did not
silently disregard that bar and consider the merits.” Id., at 803; see
also, e.g., Kernan v. Hinojosa, ante, at 3 ( per curiam). We presume, in
other words, that the decision rests on a question of state law. That
presumption arguably plays an even more important role in a statecourt case like this, where a state-law procedural defect would oust this
Court of its jurisdiction. See Coleman v. Thompson, 501 U. S. 722, 730
(1991) (distinguishing a state-law procedural bar’s effect on a state case
from its effect in federal habeas).
4
FOSTER v. CHATMAN
THOMAS, J., dissenting
e.g., Davis v. Thomas, 261 Ga. 687, 689, 410 S. E. 2d 110,
112 (1991). “It is axiomatic” in the Georgia courts “that a
habeas court is not to be used as a substitute for an appeal, or as a second appeal.” Walker v. Penn, 271 Ga. 609,
612, 523 S. E. 2d 325, 327 (1999). Without such procedural bars, state prisoners could raise old claims again and
again until they are declared victorious, and finality would
mean nothing. See Friendly, Is Innocence Irrelevant?
Collateral Attack on Criminal Judgments, 38 U. Chi.
L. Rev. 142, 145 (1970) (“The proverbial man from Mars
would surely think we must consider our system of criminal justice terribly bad if we are willing to tolerate such
efforts at undoing judgments of conviction”).
I would think that this state-law defect in Foster’s state
habeas petition would be the end of the matter: “Because
this Court has no power to review a state law determination that is sufficient to support the judgment, resolution
of any independent federal ground for the decision could
not affect the judgment and would therefore be advisory.”
Coleman v. Thompson, 501 U. S. 722, 729 (1991). It is
fundamental that this Court’s “only power over state
judgments is to correct them to the extent that they incorrectly adjudge federal rights.” Herb v. Pitcairn, 324 U. S.
117, 125–126 (1945). If an adequate and independent
state-law ground bars Foster’s claim, then the Court today
has done nothing more than issue an impermissible advisory opinion.
B
To assure itself of jurisdiction, the Court wrongly assumes that the one-line order before us implicates a federal
question. See ante, at 7–8. The lurking state-law procedural bar, according to the Court, is not an independent
state-law ground because it “depends on a federal constitutional ruling.” Ante, at 7 (internal quotation marks
omitted).
Cite as: 578 U. S. ____ (2016)
5
THOMAS, J., dissenting
I would not so hastily assume that the State Supreme
Court’s unelaborated order depends on the resolution of a
federal question without first seeking clarification from
the Supreme Court of Georgia. To be sure, we often presume that a “state court decide[s] the case the way it did
because it believed that federal law required it to do so.”
Long, 463 U. S., at 1040–1041. But there still exist “certain circumstances in which clarification [from the state
court] is necessary or desirable” before delving into the
merits of a state court’s decision. Id., at 1041, n. 6.
This case presents such a circumstance. The Long
presumption assumes that the ambiguous state-court
ruling will come in the form of a reasoned decision: It
applies in cases in which “it is not clear from the opinion
itself that the state court relied upon an adequate and
independent state ground and when it fairly appears that
the state court rested its decision primarily on federal
law.” Id., at 1042 (emphasis added). But here, when the
decision is a one-line judgment, it hardly makes sense to
invoke the Long presumption. There is neither an “opinion” nor any resolution of federal law that “fairly appears”
on the face of the unexplained order. Ibid.
Confronted with cases like this in the past, this Court
has vacated and remanded for clarification from the state
court before proceeding to decide the merits of the underlying claim. I would follow that path instead of assuming
that the one-line order implicates a federal question. We
have “decline[d] . . . to review the federal questions asserted
to be present” when “ ‘there is considerable uncertainty
as to the precise grounds for the [state court’s] decision.’ ”
Bush v. Palm Beach County Canvassing Bd., 531 U. S. 70,
78 (2000) (per curiam) (quoting Minnesota v. National Tea
Co., 309 U. S. 551, 555 (1940)). A fortiori, when a State’s
highest court has denied relief without any explanation,
the proper course is to vacate and remand for clarification
before reaching the merits of a federal question that might
6
FOSTER v. CHATMAN
THOMAS, J., dissenting
have nothing to do with the state court’s decision. See,
e.g., Capital Cities Media, Inc. v. Toole, 466 U. S. 378
(1984) (per curiam); see also, e.g., Johnson v. Risk, 137
U. S. 300, 306–307 (1890). This course respects weighty
federalism concerns. “It is fundamental that state courts
be left free and unfettered by us” in interpreting their own
law, National Tea Co., supra, at 557, especially when a
state prisoner’s long-final conviction is at stake.
Clarification is especially warranted here. Nothing in
the reported decisions of the Supreme Court of Georgia
suggests that federal law figures in how Georgia applies
its res judicata procedural bar. Those decisions state that
“new law or new facts” could “justify the reconsideration of
the claims . . . raised on direct appeal,” Hall v. Lance, 286
Ga. 365, 376–377, 687 S. E. 2d 809, 818 (2010), as might a
showing that the prisoner is actually innocent, Walker,
supra, at 611, 523 S. E. 2d, at 327. But it is for the Supreme Court of Georgia—not this Court—to decide what
new facts suffice to reopen a claim already decided against
a state habeas petitioner. It is up to the Georgia courts,
for example, to decide whether a petitioner was diligent in
discovering those new facts, see, e.g., Gibson v. Head, 282
Ga. 156, 159, 646 S. E. 2d 257, 260 (2007) (noting that
whether a petitioner could overcome the procedural bar
“depend[ed] on factual findings” including “the precise
timing of [his] discovery of ” the new evidence), or whether
the new facts are “material,” Rollf v. Carter, 298 Ga. 557,
558, ___ S. E. 2d ___, ___ (2016).
Instead of leaving the application of Georgia law to the
Georgia courts, the Court takes it upon itself to decide
that the procedural bar implicates a federal question.
Worse still, the Court surmises that Georgia’s procedural
bar depends on the resolution of a federal question by
parsing the wrong court’s decision, the opinion of the
Superior Court of Butts County. Ante, at 7–8. Invoking
Ake v. Oklahoma, 470 U. S. 68, 75 (1985), the Court rea-
Cite as: 578 U. S. ____ (2016)
7
THOMAS, J., dissenting
sons that “the state habeas court’s application of res judicata to Foster’s Batson claim was not independent of the
merits of his federal constitutional challenge.” Ante, at 8.
(emphasis added). Accordingly, whether Foster has alleged a sufficient “ ‘change in the facts’ ” to overcome the
Georgia procedural bar depends on whether Foster’s Batson claim would succeed in light of those changed facts.
Ante, at 7–8. But the State Superior Court’s opinion is not
the “judgmen[t] . . . by the highest court of [Georgia] in
which a decision could be had” subject to our certiorari
jurisdiction. 28 U. S. C. §1257. The unexplained denial of
relief by the Supreme Court of Georgia is.
I cannot go along with the Court’s decision to assure
itself of its jurisdiction by attributing snippets of the State
Superior Court’s reasoning to the Supreme Court of Georgia. The reported decisions of the Supreme Court of Georgia do not resolve what “type of new alleged facts . . . could
ever warrant setting aside the procedural bar,” Hall,
supra, at 377, 687 S. E. 2d, at 818, let alone intimate that
a prisoner may relitigate a claim already decided against
him merely because he might win this second time around.
Cf. Roulain v. Martin, 266 Ga. 353, 354, 466 S. E. 2d 837,
839 (1996) (opining that a state habeas court “would certainly be bound by the ruling [in the petitioner’s direct
appeal] regardless of whether that ruling may be erroneous”). I therefore refuse to presume that the unexplained
denial of relief by the Supreme Court of Georgia presents
a federal question.2
——————
2 The
Court takes me to task for not “follow[ing my] own rule,” ante,
at 8–9, n. 3, because I acknowledge that the State Superior Court’s
decision is strong evidence that Foster’s claim was denied as procedurally defaulted. See supra, at 3–4, and n. 1. It is one thing to look to the
reasoning of a lower state court’s decision to confirm that the Court
lacks jurisdiction. It is quite another for the Court to probe that lower
state court’s decision to assure itself of jurisdiction. The Court reads
the tea leaves of a single State Superior Court’s decision to decide that
8
FOSTER v. CHATMAN
THOMAS, J., dissenting
The Court today imposes an opinion-writing requirement on the States’ highest courts. Lest those high courts
be subject to lengthy digressions on constitutional claims
that might (or might not) be at issue, they must offer
reasoned opinions why—after rejecting the same claim
decades ago—they refuse to grant habeas relief now. But
“[o]pinion-writing practices in state courts are influenced
by considerations other than avoiding scrutiny by collateral attack in federal court,” including “concentrat[ing
their] resources on the cases where opinions are most
needed.” Harrington v. Richter, 562 U. S. 86, 99 (2011).
Rather than demand detailed opinions of overburdened
state courts, the Court should vacate and remand cases
such as this one to assure itself of its jurisdiction.
II
The Court further errs by deciding that Foster’s Batson
claim has arguable merit. Because the adjudication of his
Batson claim is, at bottom, a credibility determination, we
owe “great deference” to the state court’s initial finding
that the prosecution’s race-neutral reasons for striking
veniremen Eddie Hood and Marilyn Garrett were credible.
Batson, 476 U. S., at 98, n. 21. On a record far less cold
than today’s, the Supreme Court of Georgia long ago (on
direct appeal) rejected that claim by giving great deference
to the trial court’s credibility determinations. Evaluating
the strike of venireman Hood, the court highlighted that
his son had been convicted of a misdemeanor and that
——————
the state-law procedural bar depends on the resolution of a federal
question. That is a question of Georgia law that is best answered by
the decisions of the Supreme Court of Georgia. See Commissioner v.
Estate of Bosch, 387 U. S. 456, 465 (1967) (concluding that when “the
underlying substantive rule involved is based on state law,” “the State’s
highest court is the best authority on its own law”); cf. King v. Order of
United Commercial Travelers of America, 333 U. S. 153, 160–162 (1948)
(rejecting an unreported state trial court decision as binding under Erie
R. Co. v. Tompkins, 304 U. S. 64 (1938)).
Cite as: 578 U. S. ____ (2016)
9
THOMAS, J., dissenting
both his demeanor and religious affiliation indicated that
he might be reluctant to impose the death penalty. Foster,
258 Ga., at 738, 374 S. E. 2d, at 192. And the prosecution
reasonably struck venireman Garrett, according to the
court, because it feared that she would sympathize with
Foster given her work with “low-income, underprivileged
children” and because she was “related to someone with a
drug or alcohol problem.” Id., at 739, 374 S. E. 2d, at 192.
That should have been the last word on Foster’s Batson
claim.
But now, Foster has access to the prosecution’s file. By
allowing Foster to relitigate his Batson claim by bringing
this newly discovered evidence to the fore, the Court upends Batson’s deferential framework. Foster’s new evidence does not justify this Court’s reassessment of who
was telling the truth nearly three decades removed from
voir dire.
A
The new evidence sets the tone for the Court’s analysis,
but a closer look reveals that it has limited probative
value. For this reason, the Court’s conclusion that the
prosecution violated Batson rests mostly on arguments at
Foster’s disposal decades ago. See ante, at 14–16 (concluding that trial transcripts belie proffered reasons for striking Garrett); ante, at 17–22 (relying on transcripts and
briefs as evidence of the prosecution’s shifting explanations for striking Hood). The new evidence is no excuse
for the Court’s reversal of the state court’s credibility
determinations.
As even the Court admits, ante, at 9–10, we do not know
who wrote most of the notes that Foster now relies upon
as proof of the prosecutors’ race-based motivations. We do
know, however, that both prosecutors averred that they
“did not make any of the highlighted marks on the jury
venire list” and “did not instruct anyone to make the green
10
FOSTER v. CHATMAN
THOMAS, J., dissenting
highlighted marks.” App. 168–169, 171. In particular,
prosecutor Stephen Lanier reaffirmed his earlier testimony, given during Foster’s hearing for a new trial, that he
relied only on race-neutral factors in striking the jury. Id.,
at 169; see also id., at 80–125. And, prosecutor Douglas
Pullen swore that he “did not rely on the highlighted jury
venire list.” Id., at 171.
The hazy recollections of the prosecution’s investigator,
Clayton Lundy, are not to the contrary. As part of the
postconviction proceedings, Lundy testified that he
“[v]aguely” remembered parts of jury selection, he “kind of
remember[ed]” some of the documents used during jury
selection, and cautioned that he “ain’t done this in a long
time.” Tr. 181–182. (When Lundy testified in 2006, nearly
20 years had passed since Foster’s trial and he had
changed careers. Id., at 174.) He thought others at the
district attorney’s office “probably” passed venire lists
around the office and “guess[ed]” that everyone would
make notations. Id., at 182, 190.
As for the other documents in the prosecution’s file,
Lundy could not identify who authored any of them, with
two exceptions.3 First, Lundy said he prepared handwritten lists describing seven veniremen, including Garrett,
but her race is not mentioned. See id., at 205; App. 293–
294. Second, Lundy “guess[ed]” that prosecutor Lanier
suggested the handwritten edits to a draft of an affidavit
that Lundy later submitted to the trial court. Tr. 203; see
App. 343–347 (draft affidavit); id., at 127–129 (final affi——————
3 At
oral argument, counsel for Georgia also stipulated that “one of
the two prosecutors” must have drafted another document comprising a
“definite NO’s” list and a “questionables” list of veniremen. Tr. of Oral
Arg. 45; App. 301. Both veniremen Hood and Garrett appeared on the
“definite NO’s” list. Of course we cannot know when these lists were
created, or whether Lanier himself relied upon them. See Tr. of Oral
Arg. 45 (calling into question whether Lanier’s “thought process” was
based on those lists).
Cite as: 578 U. S. ____ (2016)
11
THOMAS, J., dissenting
davit). The relevant edits suggested deleting two statements that, “solely [in Lundy’s] opinion,” prosecutors
ought to pick Garrett “[i]f it comes down to having to pick
one of the black jurors.” Id., at 345 (emphasis added).
Perhaps this look inside the district attorney’s office reveals that the office debated internally who would be the
best black juror. Or perhaps it reveals only Lundy’s personal thoughts about selecting black jurors, an “opinion”
with which (we can “guess”) Lanier disagreed.
The notion that this “newly discovered evidence” could
warrant relitigation of a Batson claim is flabbergasting.
In Batson cases, the “decisive question will be whether
counsel’s race-neutral explanation for a peremptory challenge should be believed.” Hernandez v. New York, 500
U. S. 352, 365 (1991) (plurality opinion). And because
“[t]here will seldom be much evidence bearing on that
issue,” “the best evidence often will be the demeanor of the
attorney who exercises the challenge.” Ibid. Time and
again, we have said that the credibility of the attorney is
best judged by the trial court and can be overturned only if
it is clearly erroneous. See ibid.; see also Snyder v. Louisiana, 552 U. S. 472, 477 (2008); Miller-El, 537 U. S., at
339; Hernandez, supra, at 375 (O’Connor, J., concurring in
judgment).
But the Court today invites state prisoners to go searching for new “evidence” by demanding the files of the prosecutors who long ago convicted them. If those prisoners
succeed, then apparently this Court’s doors are open to
conduct the credibility determination anew. Alas, “every
end is instead a new beginning” for a majority of this
Court. Welch v. United States, ante, at 15 (THOMAS, J.,
dissenting). I cannot go along with that “sort of sandbagging of state courts.” Miller-El v. Dretke, 545 U. S. 231,
279 (2005) (THOMAS, J., dissenting). New evidence should
not justify the relitigation of Batson claims.
12
FOSTER v. CHATMAN
THOMAS, J., dissenting
B
Perhaps the Court’s decision to reconsider a decades-old
Batson claim based on newly discovered evidence would be
less alarming if the new evidence revealed that the trial
court had misjudged the prosecutors’ reasons for striking
Garrett and Hood. It does not. Not only is the probative
value of the evidence severely limited, supra, at 8–11, but
also pieces of the new evidence corroborate the trial court’s
conclusion that the race-neutral reasons were valid. The
Court’s substitution of its judgment for the trial court’s
credibility determinations is flawed both as a legal and
factual matter.
1
The Court’s analysis with respect to Hood is unavailing.
The Court first compares Hood with other jurors who had
similarly aged children, ante, at 18–19, just as the trial
court did decades ago, App. 135–136. The trial court was
well aware that Hood’s son’s conviction was for theft, not
murder. But in the words of the trial court, “the conviction is a distinction that makes the difference” between
Hood and the other jurors, and the prosecution’s “apprehension that this would tend to, perhaps only subconsciously, make the venireman sympathetic to [Foster] was
a rational one.” Ibid. Because “the trial court believe[d]
the prosecutor’s nonracial justification, and that finding is
not clearly erroneous, that [should be] the end of the matter.” Hernandez, supra, at 375 (O’Connor, J., concurring
in judgment).
The Court also second-guesses the prosecution’s strike
of Hood because of his questionable stance on the death
penalty. The Court concludes that Hood’s transcribed
statements at voir dire “unequivocally voiced [Hood’s]
willingness to impose the death penalty.” Ante, at 22.
There is nothing unequivocal about a decades-old record.
Our case law requires the Court to defer to the trial court’s
Cite as: 578 U. S. ____ (2016)
13
THOMAS, J., dissenting
finding that the State’s race-neutral concerns about Hood’s
“soft-spoken[ness] and slow[ness] in responding to the
death penalty questions” were “credible.” App. 138; see
Snyder, supra, at 477 (“[R]ace-neutral reasons for peremptory challenges often invoke a juror’s demeanor (e.g.,
nervousness, inattention), making the trial court’s
firsthand observations of even greater importance”). The
“evaluation of the prosecutor’s state of mind based on
demeanor and credibility lies peculiarly within a trial
judge’s province.” Hernandez, supra, at 365 (plurality
opinion) (internal quotation marks omitted).
The new evidence, moreover, supports the prosecution’s
concern about Hood’s views on capital punishment. A
handwritten document in the prosecution’s file stated that
the Church of Christ “doesn’t take a stand on [the] Death
Penalty.” App. 302. Perplexingly, the Court considers this
proof that the prosecution misled the trial court about its
reasons for striking Hood. Ante, at 20–21. Hardly. That
document further states that capital punishment is an
issue “left for each individual member,” App. 302, and
thus in no way discredits the prosecutor’s statement that,
in his experience, “Church of Christ people, while they
may not take a formal stand against the death penalty, . . .
are very, very reluctant to vote for the death penalty.” Id.,
at 84. And other notes in the file say that Hood gave “slow
D[eath] P[enalty] answers” and that he “hesitated . . .
when asked about [the] D[eath] P[enalty].” Id., at 295,
303. This new evidence supports the prosecution’s stated
reason for striking Hood—that he, as a member of the
Church of Christ, had taken an uncertain stance on capital punishment.
2
Likewise, the Court’s evaluation of the strike of Garrett
is riddled with error. The Court is vexed by a single misrepresentation about the prosecution’s decision to strike
14
FOSTER v. CHATMAN
THOMAS, J., dissenting
Garrett—the prosecution stated that Garrett was listed as
“ ‘questionable’ ” but the new evidence reveals that Garrett
was on the “ ‘definite NO’s’ ” list from the beginning. Ante,
at 13–14. But whether the prosecution planned to strike
Garrett all along or only at the last minute seems irrelevant to the more than 10 race-neutral reasons the prosecution supplied for striking Garrett.
The prosecution feared that Garrett might sympathize
with Foster at sentencing. She worked with disadvantaged children, she was young, and she failed to disclose
that her cousin had been recently arrested. See App. 55–
57, 105. And prosecutors were concerned that she gave
short answers, appeared nervous, and did not ask to be off
the jury even though she was a divorced mother of two
children and worked more than 70 hours per week. See
id., at 55–56, 93–94. The prosecution also stated repeatedly that they were concerned about female jurors, who
“appear to be more sympathetic . . . in . . . death penalty
case[s] than men.” Id., at 42; see id., at 57.4
Pieces of the new evidence support some of these concerns. The notes in the prosecutors’ file reveal that someone on the prosecution team was aware that Garrett’s
cousin was Angela Garrett (who had been arrested for
drug-related charges and fired from her job on the eve of
trial, id., at 105, 129), that Garrett “would not look a[t]
[the] C[our]t during V[oir] D[ire],” that she gave “very
short answers,” and that she “[l]ooked @ floor during
D[eath] P[enalty]” questioning. Id., at 293, 308.
Nevertheless, the Court frets that these indisputably
race-neutral reasons were pretextual. The Court engages
in its own comparison of the jurors to highlight the prosecution’s refusal to strike white jurors with similar charac——————
4 This Court’s decision in J. E. B. v. Alabama ex rel. T. B., 511 U. S.
127 (1994), which held that peremptory strikes on the basis of sex were
unconstitutional, postdated Foster’s direct appeal.
Cite as: 578 U. S. ____ (2016)
15
THOMAS, J., dissenting
teristics. Ante, at 14–16. But as with venireman Hood,
the Georgia courts were faced with the same contentions
regarding Garrett decades ago, and the Supreme Court of
Georgia rightly decided that the trial court’s findings were
worthy of deference. After conducting a post-trial hearing
in which one of the prosecutors testified, App. 80–125, the
trial court credited the prosecution’s concerns. The trial
court, for example, agreed that Garrett’s association with
Head Start might be troubling and “believe[d] that the
state [was] honest in voicing its concern that the combination of holding down two jobs and being the divorced
mother of two indicates a less stable home environment,”
which “was the prime defense in [Foster’s] case.” Id., at
142; see id., at 141. Again, that should be “the end of the
matter.” Hernandez, 500 U. S., at 375 (O’Connor, J.,
concurring in judgment).
*
*
*
Today, without first seeking clarification from Georgia’s
highest court that it decided a federal question, the Court
affords a death-row inmate another opportunity to relitigate his long-final conviction. In few other circumstances
could I imagine the Court spilling so much ink over a
factbound claim arising from a state postconviction proceeding. It was the trial court that observed the veniremen firsthand and heard them answer the prosecution’s
questions, and its evaluation of the prosecution’s credibility on this point is certainly far better than this Court’s
nearly 30 years later. See Hernandez, supra, at 365 (plurality opinion). I respectfully dissent.
(Slip Opinion)
OCTOBER TERM, 2014
1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
GLOSSIP ET AL. v. GROSS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 14–7955. Argued April 29, 2015—Decided June 29, 2015
Because capital punishment is constitutional, there must be a constitutional means of carrying it out. After Oklahoma adopted lethal injection as its method of execution, it settled on a three-drug protocol of
(1) sodium thiopental (a barbiturate) to induce a state of unconsciousness, (2) a paralytic agent to inhibit all muscular-skeletal
movements, and (3) potassium chloride to induce cardiac arrest. In
Baze v. Rees, 553 U. S. 35, the Court held that this protocol does not
violate the Eighth Amendment’s prohibition against cruel and unusual punishments. Anti-death-penalty advocates then pressured
pharmaceutical companies to prevent sodium thiopental (and, later,
another barbiturate called pentobarbital) from being used in executions. Unable to obtain either sodium thiopental or pentobarbital,
Oklahoma decided to use a 500-milligram dose of midazolam, a sedative, as the first drug in its three-drug protocol.
Oklahoma death-row inmates filed a 42 U. S. C. §1983 action
claiming that the use of midazolam violates the Eighth Amendment.
Four of those inmates filed a motion for a preliminary injunction and
argued that a 500-milligram dose of midazolam will not render them
unable to feel pain associated with administration of the second and
third drugs. After a three-day evidentiary hearing, the District Court
denied the motion. It held that the prisoners failed to identify a
known and available alternative method of execution that presented
a substantially less severe risk of pain. It also held that the prisoners failed to establish a likelihood of showing that the use of midazolam created a demonstrated risk of severe pain. The Tenth Circuit
affirmed.
Held: Petitioners have failed to establish a likelihood of success on the
merits of their claim that the use of midazolam violates the Eighth
2
GLOSSIP v. GROSS
Syllabus
Amendment. Pp. 11–29.
(a) To obtain a preliminary injunction, petitioners must establish,
among other things, a likelihood of success on the merits of their
claim. See Winter v. Natural Resources Defense Council, Inc., 555
U. S. 7, 20. To succeed on an Eighth Amendment method-ofexecution claim, a prisoner must establish that the method creates a
demonstrated risk of severe pain and that the risk is substantial
when compared to the known and available alternatives. Baze, supra, at 61 (plurality opinion). Pp. 11–13.
(b) Petitioners failed to establish that any risk of harm was substantial when compared to a known and available alternative method
of execution. Petitioners have suggested that Oklahoma could execute them using sodium thiopental or pentobarbital, but the District
Court did not commit a clear error when it found that those drugs are
unavailable to the State. Petitioners argue that the Eighth Amendment does not require them to identify such an alternative, but their
argument is inconsistent with the controlling opinion in Baze, which
imposed a requirement that the Court now follows. Petitioners also
argue that the requirement to identify an alternative is inconsistent
with the Court’s pre-Baze decision in Hill v. McDonough, 547 U. S.
573, but they misread that decision. Hill concerned a question of civil procedure, not a substantive Eighth Amendment question. That
case held that §1983 alone does not require an inmate asserting a
method-of-execution claim to plead an acceptable alternative. Baze,
on the other hand, made clear that the Eighth Amendment requires a
prisoner to plead and prove a known and available alternative.
Pp. 13–16.
(c) The District Court did not commit clear error when it found that
midazolam is likely to render a person unable to feel pain associated
with administration of the paralytic agent and potassium chloride.
Pp. 16–29.
(1) Several initial considerations bear emphasis. First, the District Court’s factual findings are reviewed under the deferential
“clear error” standard. Second, petitioners have the burden of persuasion on the question whether midazolam is effective. Third, the
fact that numerous courts have concluded that midazolam is likely to
render an inmate insensate to pain during execution heightens the
deference owed to the District Court’s findings. Finally, challenges to
lethal injection protocols test the boundaries of the authority and
competency of federal courts, which should not embroil themselves in
ongoing scientific controversies beyond their expertise. Baze, supra,
at 51. Pp. 16–18.
(2) The State’s expert presented persuasive testimony that a 500milligram dose of midazolam would make it a virtual certainty that
Cite as: 576 U. S. ____ (2015)
3
Syllabus
an inmate will not feel pain associated with the second and third
drugs, and petitioners’ experts acknowledged that they had no contrary scientific proof. Expert testimony presented by both sides lends
support to the District Court’s conclusion. Evidence suggested that a
500-milligram dose of midazolam will induce a coma, and even one of
petitioners’ experts agreed that as the dose of midazolam increases, it
is expected to produce a lack of response to pain. It is not dispositive
that midazolam is not recommended or approved for use as the sole
anesthetic during painful surgery. First, the 500-milligram dose at
issue here is many times higher than a normal therapeutic dose.
Second, the fact that a low dose of midazolam is not the best drug for
maintaining unconsciousness says little about whether a 500milligram dose is constitutionally adequate to conduct an execution.
Finally, the District Court did not err in concluding that the safeguards adopted by Oklahoma to ensure proper administration of
midazolam serve to minimize any risk that the drug will not operate
as intended. Pp. 18–22.
(3) Petitioners’ speculative evidence regarding midazolam’s “ceiling effect” does not establish that the District Court’s findings were
clearly erroneous. The mere fact that midazolam has a ceiling above
which an increase in dosage produces no effect cannot be dispositive,
and petitioners provided little probative evidence on the relevant
question, i.e., whether midazolam’s ceiling effect occurs below the
level of a 500-milligram dose and at a point at which the drug does
not have the effect of rendering a person insensate to pain caused by
the second and third drugs. Petitioners attempt to deflect attention
from their failure of proof on this point by criticizing the testimony of
the State’s expert. They emphasize an apparent conflict between the
State’s expert and their own expert regarding the biological process
that produces midazolam’s ceiling effect. But even if petitioners’ expert is correct regarding that biological process, it is largely beside
the point. What matters for present purposes is the dosage at which
the ceiling effect kicks in, not the biological process that produces the
effect. Pp. 22–25.
(4) Petitioners’ remaining arguments—that an expert report presented in the District Court should have been rejected because it referenced unreliable sources and contained an alleged mathematical
error, that only four States have used midazolam in an execution,
and that difficulties during two recent executions suggest that midazolam is ineffective—all lack merit. Pp. 26–29.
776 F. 3d 721, affirmed.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SCALIA, KENNEDY, and THOMAS, JJ., joined. SCALIA, J., filed a con-
4
GLOSSIP v. GROSS
Syllabus
curring opinion, in which THOMAS, J., joined. THOMAS, J., filed a concurring opinion, in which SCALIA, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined.
Cite as: 576 U. S. ____ (2015)
1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–7955
_________________
RICHARD E. GLOSSIP, ET AL., PETITIONERS v.
KEVIN J. GROSS, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
[June 29, 2015] JUSTICE ALITO delivered the opinion of the Court.
Prisoners sentenced to death in the State of Oklahoma
filed an action in federal court under Rev. Stat. §1979, 42
U. S. C. §1983, contending that the method of execution
now used by the State violates the Eighth Amendment
because it creates an unacceptable risk of severe pain.
They argue that midazolam, the first drug employed in the
State’s current three-drug protocol, fails to render a person insensate to pain. After holding an evidentiary hearing, the District Court denied four prisoners’ application
for a preliminary injunction, finding that they had failed
to prove that midazolam is ineffective. The Court of Appeals for the Tenth Circuit affirmed and accepted the
District Court’s finding of fact regarding midazolam’s
efficacy.
For two independent reasons, we also affirm. First, the
prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain,
a requirement of all Eighth Amendment method-ofexecution claims. See Baze v. Rees, 553 U. S. 35, 61 (2008)
(plurality opinion). Second, the District Court did not
2
GLOSSIP v. GROSS
Opinion of the Court
commit clear error when it found that the prisoners failed
to establish that Oklahoma’s use of a massive dose of
midazolam in its execution protocol entails a substantial
risk of severe pain.
I
A
The death penalty was an accepted punishment at the
time of the adoption of the Constitution and the Bill of
Rights. In that era, death sentences were usually carried
out by hanging. The Death Penalty in America: Current
Controversies 4 (H. Bedau ed. 1997). Hanging remained
the standard method of execution through much of the
19th century, but that began to change in the century’s
later years. See Baze, supra, at 41–42. In the 1880’s, the
Legislature of the State of New York appointed a commission to find “ ‘the most humane and practical method
known to modern science of carrying into effect the sentence of death in capital cases.’ ” In re Kemmler, 136 U. S.
436, 444 (1890). The commission recommended electrocution, and in 1888, the Legislature enacted a law providing
for this method of execution. Id., at 444–445. In subsequent years, other States followed New York’s lead in the
“ ‘belief that electrocution is less painful and more humane
than hanging.’ ” Baze, 553 U. S., at 42 (quoting Malloy v.
South Carolina, 237 U. S. 180, 185 (1915)).
In 1921, the Nevada Legislature adopted another new
method of execution, lethal gas, after concluding that this
was “the most humane manner known to modern science.”
State v. Jon, 46 Nev. 418, 437, 211 P. 676, 682 (1923). The
Nevada Supreme Court rejected the argument that the
use of lethal gas was unconstitutional, id., at 435–437, 211
P., at 681–682, and other States followed Nevada’s lead,
see, e.g., Ariz. Const., Art. XXII, §22 (1933); 1937 Cal.
Stats. ch. 172, §1; 1933 Colo. Sess. Laws ch. 61, §1; 1955
Md. Laws ch. 625, §1, p. 1017; 1937 Mo. Laws p. 222, §1.
Cite as: 576 U. S. ____ (2015)
3
Opinion of the Court
Nevertheless, hanging and the firing squad were retained
in some States, see, e.g., 1961 Del. Laws ch. 309, §2 (hanging); 1935 Kan. Sess. Laws ch. 155, §1 (hanging); Utah
Code Crim. Proc. §105–37–16 (1933) (hanging or firing
squad), and electrocution remained the predominant
method of execution until the 9-year hiatus in executions
that ended with our judgment in Gregg v. Georgia, 428
U. S. 153 (1976). See Baze, supra, at 42.
After Gregg reaffirmed that the death penalty does not
violate the Constitution, some States once again sought a
more humane way to carry out death sentences. They
eventually adopted lethal injection, which today is “by far
the most prevalent method of execution in the United
States.” Baze, supra, at 42. Oklahoma adopted lethal
injection in 1977, see 1977 Okla. Sess. Laws p. 89, and it
eventually settled on a protocol that called for the use of
three drugs: (1) sodium thiopental, “a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection,”
(2) a paralytic agent, which “inhibits all muscular-skeletal
movements and, by paralyzing the diaphragm, stops respiration,” and (3) potassium chloride, which “interferes with
the electrical signals that stimulate the contractions of the
heart, inducing cardiac arrest.” Baze, supra, at 44; see
also Brief for Respondents 9. By 2008, at least 30 of the
36 States that used lethal injection employed that particular three-drug protocol. 553 U. S., at 44.
While methods of execution have changed over the
years, “[t]his Court has never invalidated a State’s chosen
procedure for carrying out a sentence of death as the
infliction of cruel and unusual punishment.” Id., at 48. In
Wilkerson v. Utah, 99 U. S. 130, 134–135 (1879), the Court
upheld a sentence of death by firing squad. In In re
Kemmler, supra, at 447–449, the Court rejected a challenge to the use of the electric chair. And the Court did
not retreat from that holding even when presented with a
4
GLOSSIP v. GROSS
Opinion of the Court
case in which a State’s initial attempt to execute a prisoner by electrocution was unsuccessful. Louisiana ex rel.
Francis v. Resweber, 329 U. S. 459, 463–464 (1947) (plurality opinion). Most recently, in Baze, supra, seven Justices agreed that the three-drug protocol just discussed
does not violate the Eighth Amendment.
Our decisions in this area have been animated in part
by the recognition that because it is settled that capital
punishment is constitutional, “[i]t necessarily follows that
there must be a [constitutional] means of carrying it out.”
Id., at 47. And because some risk of pain is inherent in
any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain.
Ibid. After all, while most humans wish to die a painless
death, many do not have that good fortune. Holding that
the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death
penalty altogether.
B
Baze cleared any legal obstacle to use of the most common three-drug protocol that had enabled States to carry
out the death penalty in a quick and painless fashion. But
a practical obstacle soon emerged, as anti-death-penalty
advocates pressured pharmaceutical companies to refuse
to supply the drugs used to carry out death sentences.
The sole American manufacturer of sodium thiopental, the
first drug used in the standard three-drug protocol, was
persuaded to cease production of the drug. After suspending domestic production in 2009, the company planned to
resume production in Italy. Koppel, Execution Drug Halt
Raises Ire of Doctors, Wall Street Journal, Jan. 25, 2011,
p. A6. Activists then pressured both the company and the
Italian Government to stop the sale of sodium thiopental
for use in lethal injections in this country. Bonner, Letter
from Europe: Drug Company in Cross Hairs of Death
Cite as: 576 U. S. ____ (2015)
5
Opinion of the Court
Penalty Opponents, N. Y. Times, Mar. 30, 2011; Koppel,
Drug Halt Hinders Executions in the U. S., Wall Street
Journal, Jan. 22, 2011, p. A1. That effort proved successful, and in January 2011, the company announced that it
would exit the sodium thiopental market entirely. See
Hospira, Press Release, Hospira Statement Regarding
PentothalTM (sodium thiopental) Market Exit (Jan. 21,
2011).
After other efforts to procure sodium thiopental proved
unsuccessful, States sought an alternative, and they eventually replaced sodium thiopental with pentobarbital,
another barbiturate. In December 2010, Oklahoma became the first State to execute an inmate using pentobarbital. See Reuters, Chicago Tribune, New Drug Mix Used
in Oklahoma Execution, Dec. 17 2010, p. 41. That execution occurred without incident, and States gradually shifted
to pentobarbital as their supplies of sodium thiopental
ran out. It is reported that pentobarbital was used in all
of the 43 executions carried out in 2012. The Death
Penalty Institute, Execution List 2012, online at www.
deathpenaltyinfo.org/execution-list-2012
(all
Internet
materials as visited June 26, 2015, and available in Clerk
of Court’s case file). Petitioners concede that pentobarbital, like sodium thiopental, can “reliably induce and maintain a comalike state that renders a person insensate to
pain” caused by administration of the second and third
drugs in the protocol. Brief for Petitioners 2. And courts
across the country have held that the use of pentobarbital
in executions does not violate the Eighth Amendment.
See, e.g., Jackson v. Danberg, 656 F. 3d 157 (CA3 2011);
Beaty v. Brewer, 649 F. 3d 1071 (CA9 2011); DeYoung v.
Owens, 646 F. 3d 1319 (CA11 2011); Pavatt v. Jones, 627
F. 3d 1336 (CA10 2010).
Before long, however, pentobarbital also became unavailable. Anti-death-penalty advocates lobbied the Danish
manufacturer of the drug to stop selling it for use in exe-
6
GLOSSIP v. GROSS
Opinion of the Court
cutions. See Bonner, supra. That manufacturer opposed
the death penalty and took steps to block the shipment of
pentobarbital for use in executions in the United States.
Stein, New Obstacle to Death Penalty in U. S., Washington Post, July 3, 2011, p. A4. Oklahoma eventually became unable to acquire the drug through any means. The
District Court below found that both sodium thiopental
and pentobarbital are now unavailable to Oklahoma. App.
67–68.
C
Unable to acquire either sodium thiopental or pentobarbital, some States have turned to midazolam, a sedative in
the benzodiazepine family of drugs. In October 2013,
Florida became the first State to substitute midazolam for
pentobarbital as part of a three-drug lethal injection protocol. Fernandez, Executions Stall As States Seek Different Drugs, N. Y. Times, Nov. 9, 2013, p. A1. To date,
Florida has conducted 11 executions using that protocol,
which calls for midazolam followed by a paralytic agent
and potassium chloride. See Brief for State of Florida as
Amicus Curiae 2–3; Chavez v. Florida SP Warden, 742
F. 3d 1267, 1269 (CA11 2014). In 2014, Oklahoma also
substituted midazolam for pentobarbital as part of its
three-drug protocol. Oklahoma has already used this
three-drug protocol twice: to execute Clayton Lockett in
April 2014 and Charles Warner in January 2015. (Warner
was one of the four inmates who moved for a preliminary
injunction in this case.)
The Lockett execution caused Oklahoma to implement
new safety precautions as part of its lethal injection protocol. When Oklahoma executed Lockett, its protocol called
for the administration of 100 milligrams of midazolam, as
compared to the 500 milligrams that are currently required. On the morning of his execution, Lockett cut
himself twice at “ ‘the bend of the elbow.’ ” App. 50. That
Cite as: 576 U. S. ____ (2015)
7
Opinion of the Court
evening, the execution team spent nearly an hour making
at least one dozen attempts to establish intravenous (IV)
access to Lockett’s cardiovascular system, including at his
arms and elsewhere on his body. The team eventually
believed that it had established intravenous access
through Lockett’s right femoral vein, and it covered the
injection access point with a sheet, in part to preserve
Lockett’s dignity during the execution. After the team
administered the midazolam and a physician determined
that Lockett was unconscious, the team next administered
the paralytic agent (vecuronium bromide) and most of the
potassium chloride. Lockett began to move and speak, at
which point the physician lifted the sheet and determined
that the IV had “infiltrated,” which means that “the IV
fluid, rather than entering Lockett’s blood stream, had
leaked into the tissue surrounding the IV access point.”
Warner v. Gross, 776 F. 3d 721, 725 (CA10 2015) (case
below). The execution team stopped administering the
remaining potassium chloride and terminated the execution about 33 minutes after the midazolam was first injected. About 10 minutes later, Lockett was pronounced
dead.
An investigation into the Lockett execution concluded
that “the viability of the IV access point was the single
greatest factor that contributed to the difficulty in administering the execution drugs.” App. 398. The investigation, which took five months to complete, recommended
several changes to Oklahoma’s execution protocol, and
Oklahoma adopted a new protocol with an effective date of
September 30, 2014. That protocol allows the Oklahoma
Department of Corrections to choose among four different
drug combinations. The option that Oklahoma plans to
use to execute petitioners calls for the administration of
500 milligrams of midazolam followed by a paralytic agent
8
GLOSSIP v. GROSS
Opinion of the Court
and potassium chloride.1 The paralytic agent may be
pancuronium bromide, vecuronium bromide, or rocuronium
bromide, three drugs that, all agree, are functionally
equivalent for purposes of this case. The protocol also
includes procedural safeguards to help ensure that an
inmate remains insensate to any pain caused by the administration of the paralytic agent and potassium chloride. Those safeguards include: (1) the insertion of both a
primary and backup IV catheter, (2) procedures to confirm
the viability of the IV site, (3) the option to postpone an
execution if viable IV sites cannot be established within an
hour, (4) a mandatory pause between administration of
the first and second drugs, (5) numerous procedures for
monitoring the offender’s consciousness, including the use
of an electrocardiograph and direct observation, and
(6) detailed provisions with respect to the training and
preparation of the execution team. In January of this
year, Oklahoma executed Warner using these revised
procedures and the combination of midazolam, a paralytic
agent, and potassium chloride.
II
A
In June 2014, after Oklahoma switched from pentobarbital to midazolam and executed Lockett, 21 Oklahoma
death row inmates filed an action under 42 U. S. C. §1983
challenging the State’s new lethal injection protocol. The
complaint alleged that Oklahoma’s use of midazolam
violates the Eighth Amendment’s prohibition of cruel and
unusual punishment.
In November 2014, four of those plaintiffs—Richard
——————
1 The
three other drug combinations that Oklahoma may administer are: (1) a single dose of pentobarbital, (2) a single dose of
sodium thiopental, and (3) a dose of midazolam followed by a dose of
hydromorphone.
Cite as: 576 U. S. ____ (2015)
9
Opinion of the Court
Glossip, Benjamin Cole, John Grant, and Warner—filed a
motion for a preliminary injunction. All four men had
been convicted of murder and sentenced to death by Oklahoma juries. Glossip hired Justin Sneed to kill his employer, Barry Van Treese. Sneed entered a room where
Van Treese was sleeping and beat him to death with a
baseball bat. See Glossip v. State, 2007 OK CR 12, 157
P. 3d 143, 147–149. Cole murdered his 9-month-old
daughter after she would not stop crying. Cole bent her
body backwards until he snapped her spine in half. After
the child died, Cole played video games. See Cole v. State,
2007 OK CR 27, 164 P. 3d 1089, 1092–1093. Grant, while
serving terms of imprisonment totaling 130 years, killed
Gay Carter, a prison food service supervisor, by pulling
her into a mop closet and stabbing her numerous times
with a shank. See Grant v. State, 2002 OK CR 36, 58
P. 3d 783, 789. Warner anally raped and murdered an 11month-old girl. The child’s injuries included two skull
fractures, internal brain injuries, two fractures to her jaw,
a lacerated liver, and a bruised spleen and lungs. See
Warner v. State, 2006 OK CR 40, 144 P. 3d 838, 856–857.
The Oklahoma Court of Criminal Appeals affirmed the
murder conviction and death sentence of each offender.
Each of the men then unsuccessfully sought both state
postconviction and federal habeas corpus relief. Having
exhausted the avenues for challenging their convictions
and sentences, they moved for a preliminary injunction
against Oklahoma’s lethal injection protocol.
B
In December 2014, after discovery, the District Court
held a 3-day evidentiary hearing on the preliminary injunction motion. The District Court heard testimony from
17 witnesses and reviewed numerous exhibits. Dr. David
Lubarsky, an anesthesiologist, and Dr. Larry Sasich, a
doctor of pharmacy, provided expert testimony about
10
GLOSSIP v. GROSS
Opinion of the Court
midazolam for petitioners, and Dr. Roswell Evans, a
doctor of pharmacy, provided expert testimony for
respondents.
After reviewing the evidence, the District Court issued
an oral ruling denying the motion for a preliminary injunction. The District Court first rejected petitioners’
challenge under Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U. S. 579 (1993), to the testimony of Dr. Evans.
It concluded that Dr. Evans, the Dean of Auburn University’s School of Pharmacy, was well qualified to testify about
midazolam’s properties and that he offered reliable testimony. The District Court then held that petitioners failed
to establish a likelihood of success on the merits of their
claim that the use of midazolam violates the Eighth
Amendment. The court provided two independent reasons
for this conclusion. First, the court held that petitioners
failed to identify a known and available method of execution that presented a substantially less severe risk of pain
than the method that the State proposed to use. Second,
the court found that petitioners failed to prove that Oklahoma’s protocol “presents a risk that is ‘sure or very likely
to cause serious illness and needless suffering,’ amounting
to ‘an objectively intolerable risk of harm.’ ” App. 96 (quoting Baze, 553 U. S., at 50). The court emphasized that the
Oklahoma protocol featured numerous safeguards, including the establishment of two IV access sites, confirmation
of the viability of those sites, and monitoring of the offender’s level of consciousness throughout the procedure.
The District Court supported its decision with findings
of fact about midazolam. It found that a 500-milligram
dose of midazolam “would make it a virtual certainty that
any individual will be at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from
the application of the second and third drugs.” App. 77.
Indeed, it found that a 500-milligram dose alone would
likely cause death by respiratory arrest within 30 minutes
Cite as: 576 U. S. ____ (2015)
11
Opinion of the Court
or an hour.
The Court of Appeals for the Tenth Circuit affirmed.
776 F. 3d 721. The Court of Appeals explained that our
decision in Baze requires a plaintiff challenging a lethal
injection protocol to demonstrate that the risk of severe
pain presented by an execution protocol is substantial
“ ‘when compared to the known and available alternatives.’ ” Id., at 732 (quoting Baze, supra, at 61). And it
agreed with the District Court that petitioners had not
identified any such alternative. The Court of Appeals
added, however, that this holding was “not outcomedeterminative in this case” because petitioners additionally
failed to establish that the use of midazolam creates a
demonstrated risk of severe pain. 776 F. 3d, at 732. The
Court of Appeals found that the District Court did not
abuse its discretion by relying on Dr. Evans’ testimony,
and it concluded that the District Court’s factual findings
about midazolam were not clearly erroneous. It also held
that alleged errors in Dr. Evans’ testimony did not render
his testimony unreliable or the District Court’s findings
clearly erroneous.
Oklahoma executed Warner on January 15, 2015, but
we subsequently voted to grant review and then stayed
the executions of Glossip, Cole, and Grant pending the
resolution of this case. 574 U. S. ___ (2015).
III
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest.” Winter v.
Natural Resources Defense Council, Inc., 555 U. S. 7, 20
(2008). The parties agree that this case turns on whether
petitioners are able to establish a likelihood of success on
the merits.
12
GLOSSIP v. GROSS
Opinion of the Court
The Eighth Amendment, made applicable to the States
through the Fourteenth Amendment, prohibits the infliction of “cruel and unusual punishments.” The controlling
opinion in Baze outlined what a prisoner must establish to
succeed on an Eighth Amendment method-of-execution
claim. Baze involved a challenge by Kentucky death row
inmates to that State’s three-drug lethal injection protocol
of sodium thiopental, pancuronium bromide, and potassium
chloride. The inmates conceded that the protocol, if
properly administered, would result in a humane and
constitutional execution because sodium thiopental would
render an inmate oblivious to any pain caused by the
second and third drugs. 553 U. S., at 49. But they argued
that there was an unacceptable risk that sodium thiopental would not be properly administered. Ibid. The inmates also maintained that a significant risk of harm
could be eliminated if Kentucky adopted a one-drug protocol and additional monitoring by trained personnel. Id., at
51.
The controlling opinion in Baze first concluded that
prisoners cannot successfully challenge a method of execution unless they establish that the method presents a risk
that is “ ‘sure or very likely to cause serious illness and
needless suffering,’ and give rise to ‘sufficiently imminent
dangers.’ ” Id., at 50 (quoting Helling v. McKinney, 509
U. S. 25, 33, 34–35 (1993)). To prevail on such a claim,
“there must be a ‘substantial risk of serious harm,’ an
‘objectively intolerable risk of harm’ that prevents prison
officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.’ ” 553 U. S.,
at 50 (quoting Farmer v. Brennan, 511 U. S. 825, 846, and
n. 9 (1994)). The controlling opinion also stated that
prisoners “cannot successfully challenge a State’s method
of execution merely by showing a slightly or marginally
safer alternative.” 553 U. S., at 51. Instead, prisoners
must identify an alternative that is “feasible, readily
Cite as: 576 U. S. ____ (2015)
13
Opinion of the Court
implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” Id., at 52.
The controlling opinion summarized the requirements of
an Eighth Amendment method-of-execution claim as
follows: “A stay of execution may not be granted on
grounds such as those asserted here unless the condemned
prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. [And] [h]e
must show that the risk is substantial when compared to
the known and available alternatives.” Id., at 61. The
preliminary injunction posture of the present case thus
requires petitioners to establish a likelihood that they can
establish both that Oklahoma’s lethal injection protocol
creates a demonstrated risk of severe pain and that the
risk is substantial when compared to the known and
available alternatives.
The challenge in Baze failed both because the Kentucky
inmates did not show that the risks they identified were
substantial and imminent, id., at 56, and because they did
not establish the existence of a known and available alternative method of execution that would entail a significantly
less severe risk, id., at 57–60. Petitioners’ arguments
here fail for similar reasons. First, petitioners have not
proved that any risk posed by midazolam is substantial
when compared to known and available alternative methods of execution. Second, they have failed to establish that
the District Court committed clear error when it found
that the use of midazolam will not result in severe pain
and suffering. We address each reason in turn.
IV
Our first ground for affirmance is based on petitioners’
failure to satisfy their burden of establishing that any risk
of harm was substantial when compared to a known and
available alternative method of execution.
In their
amended complaint, petitioners proffered that the State
14
GLOSSIP v. GROSS
Opinion of the Court
could use sodium thiopental as part of a single-drug protocol. They have since suggested that it might also be constitutional for Oklahoma to use pentobarbital. But the
District Court found that both sodium thiopental and
pentobarbital are now unavailable to Oklahoma’s Department of Corrections. The Court of Appeals affirmed
that finding, and it is not clearly erroneous. On the contrary, the record shows that Oklahoma has been unable to
procure those drugs despite a good-faith effort to do so.
Petitioners do not seriously contest this factual finding,
and they have not identified any available drug or drugs
that could be used in place of those that Oklahoma is now
unable to obtain. Nor have they shown a risk of pain so
great that other acceptable, available methods must be
used. Instead, they argue that they need not identify a
known and available method of execution that presents
less risk. But this argument is inconsistent with the
controlling opinion in Baze, 553 U. S., at 61, which imposed a requirement that the Court now follows.2
Petitioners contend that the requirement to identify an
alternative method of execution contravenes our pre-Baze
decision in Hill v. McDonough, 547 U. S. 573 (2006), but
they misread that decision. The portion of the opinion in
Hill on which they rely concerned a question of civil procedure, not a substantive Eighth Amendment question. In
——————
2 JUSTICE
SOTOMAYOR’s dissent (hereinafter principal dissent), post, at
24–25, inexplicably refuses to recognize that THE CHIEF JUSTICE’s
opinion in Baze sets out the holding of the case. In Baze, the opinion of
THE CHIEF JUSTICE was joined by two other JUSTICES. JUSTICES SCALIA
and THOMAS took the broader position that a method of execution is
consistent with the Eighth Amendment unless it is deliberately designed to inflict pain. 553 U. S., at 94 (THOMAS, J. concurring in judgment). Thus, as explained in Marks v. United States, 430 U. S. 188,
193 (1977), THE CHIEF JUSTICE’s opinion sets out the holding of the
case. It is for this reason that petitioners base their argument on the
rule set out in that opinion. See Brief for Petitioners 25, 28.
Cite as: 576 U. S. ____ (2015)
15
Opinion of the Court
Hill, the issue was whether a challenge to a method of
execution must be brought by means of an application for
a writ of habeas corpus or a civil action under §1983. Id.,
at 576. We held that a method-of-execution claim must be
brought under §1983 because such a claim does not attack
the validity of the prisoner’s conviction or death sentence.
Id., at 579–580. The United States as amicus curiae
argued that we should adopt a special pleading requirement to stop inmates from using §1983 actions to attack,
not just a particular means of execution, but the death
penalty itself. To achieve this end, the United States
proposed that an inmate asserting a method-of-execution
claim should be required to plead an acceptable alternative method of execution. Id., at 582. We rejected that
argument because “[s]pecific pleading requirements are
mandated by the Federal Rules of Civil Procedure, and
not, as a general rule, through case-by-case determinations of the federal courts.” Ibid. Hill thus held that
§1983 alone does not impose a heightened pleading requirement. Baze, on the other hand, addressed the substantive elements of an Eighth Amendment method-ofexecution claim, and it made clear that the Eighth
Amendment requires a prisoner to plead and prove a
known and available alternative. Because petitioners
failed to do this, the District Court properly held that they
did not establish a likelihood of success on their Eighth
Amendment claim.
Readers can judge for themselves how much distance
there is between the principal dissent’s argument against
requiring prisoners to identify an alternative and the
view, now announced by JUSTICES BREYER and GINSBURG,
that the death penalty is categorically unconstitutional.
Post, p. ___ (BREYER, J., dissenting). The principal dissent
goes out of its way to suggest that a State would violate
the Eighth Amendment if it used one of the methods of
execution employed before the advent of lethal injection.
16
GLOSSIP v. GROSS
Opinion of the Court
Post, at 30–31. And the principal dissent makes this
suggestion even though the Court held in Wilkerson that
this method (the firing squad) is constitutional and even
though, in the words of the principal dissent, “there is
some reason to think that it is relatively quick and painless.” Post, at 30. Tellingly silent about the methods of
execution most commonly used before States switched to
lethal injection (the electric chair and gas chamber), the
principal dissent implies that it would be unconstitutional
to use a method that “could be seen as a devolution to a
more primitive era.” Ibid. If States cannot return to any
of the “more primitive” methods used in the past and if no
drug that meets with the principal dissent’s approval is
available for use in carrying out a death sentence, the
logical conclusion is clear. But we have time and again
reaffirmed that capital punishment is not per se unconstitutional. See, e.g., Baze, 553 U. S., at 47; id., at 87–88
(SCALIA, J., concurring in judgment); Gregg, 428 U. S., at
187 (joint opinion of Stewart, Powell, and Stevens, JJ.);
id., at 226 (White, J., concurring in judgment); Resweber,
329 U. S., at 464; In re Kemmler, 136 U. S., at 447; Wilkerson, 99 U. S., at 134–135. We decline to effectively overrule these decisions.
V
We also affirm for a second reason: The District Court
did not commit clear error when it found that midazolam
is highly likely to render a person unable to feel pain
during an execution. We emphasize four points at the
outset of our analysis.
First, we review the District Court’s factual findings
under the deferential “clear error” standard. This standard does not entitle us to overturn a finding “simply because [we are] convinced that [we] would have decided the
case differently.” Anderson v. Bessemer City, 470 U. S.
564, 573 (1985).
Cite as: 576 U. S. ____ (2015)
17
Opinion of the Court
Second, petitioners bear the burden of persuasion on
this issue. Baze, supra, at 41. Although petitioners
expend great effort attacking peripheral aspects of Dr.
Evans’ testimony, they make little attempt to prove what
is critical, i.e., that the evidence they presented to the
District Court establishes that the use of midazolam is
sure or very likely to result in needless suffering.
Third, numerous courts have concluded that the use of
midazolam as the first drug in a three-drug protocol is
likely to render an inmate insensate to pain that might
result from administration of the paralytic agent and
potassium chloride. See, e.g., 776 F. 3d 721 (case below
affirming the District Court); Chavez v. Florida SP Warden, 742 F. 3d 1267 (affirming the District Court); Banks
v. State, 150 So. 3d 797 (Fla. 2014) (affirming the lower
court); Howell v. State, 133 So. 3d 511 (Fla. 2014) (same);
Muhammad v. State, 132 So. 3d 176 (Fla. 2013) (same).
(It is noteworthy that one or both of the two key witnesses
in this case—Dr. Lubarsky for petitioners and Dr. Evans
for respondents—were witnesses in the Chavez, Howell,
and Muhammad cases.) “Where an intermediate court
reviews, and affirms, a trial court’s factual findings, this
Court will not ‘lightly overturn’ the concurrent findings of
the two lower courts.” Easley v. Cromartie, 532 U. S. 234,
242 (2001). Our review is even more deferential where, as
here, multiple trial courts have reached the same finding,
and multiple appellate courts have affirmed those findings. Cf. Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830,
841 (1996) (explaining that this Court “ ‘cannot undertake
to review concurrent findings of fact by two courts below
in the absence of a very obvious and exceptional showing
of error’ ” (quoting Graver Tank & Mfg. Co. v. Linde Air
Products Co., 336 U. S. 271, 275 (1949))).
Fourth, challenges to lethal injection protocols test the
boundaries of the authority and competency of federal
courts. Although we must invalidate a lethal injection
18
GLOSSIP v. GROSS
Opinion of the Court
protocol if it violates the Eighth Amendment, federal
courts should not “embroil [themselves] in ongoing scientific controversies beyond their expertise.” Baze, supra, at
51. Accordingly, an inmate challenging a protocol bears
the burden to show, based on evidence presented to the
court, that there is a substantial risk of severe pain.
A
Petitioners attack the District Court’s findings of fact on
two main grounds.3 First, they argue that even if midazolam is powerful enough to induce unconsciousness, it is too
weak to maintain unconsciousness and insensitivity to
pain once the second and third drugs are administered.
Second, while conceding that the 500-milligram dose of
midazolam is much higher than the normal therapeutic
dose, they contend that this fact is irrelevant because
midazolam has a “ceiling effect”—that is, at a certain
point, an increase in the dose administered will not have
any greater effect on the inmate. Neither argument
succeeds.
The District Court found that midazolam is capable of
placing a person “at a sufficient level of unconsciousness to
resist the noxious stimuli which could occur from the
——————
3 Drs. Lubarsky and Sasich, petitioners’ key witnesses, both testified
that midazolam is inappropriate for a third reason, namely, that it
creates a risk of “paradoxical reactions” such as agitation, hyperactivity, and combativeness. App. 175 (expert report of Dr. Lubarsky); id., at
242, 244 (expert report of Dr. Sasich). The District Court found, however, that the frequency with which a paradoxical reaction occurs “is
speculative” and that the risk “occurs with the highest frequency in low
therapeutic doses.” Id., at 78. Indeed, Dr. Sasich conceded that the
incidence or risk of paradoxical reactions with midazolam “is unknown”
and that reports estimate the risk to vary only “from 1% to above 10%.”
Id., at 244. Moreover, the mere fact that a method of execution might
result in some unintended side effects does not amount to an Eighth
Amendment violation. “[T]he Constitution does not demand the avoidance of all risk of pain.” Baze, 553 U. S., at 47 (plurality opinion).
Cite as: 576 U. S. ____ (2015)
19
Opinion of the Court
application of the second and third drugs.” App. 77. This
conclusion was not clearly erroneous. Respondents’ expert, Dr. Evans, testified that the proper administration of
a 500-milligram dose of midazolam would make it “a
virtual certainty” that any individual would be “at a sufficient level of unconsciousness to resist the noxious stimuli
which could occur from application of the 2nd and 3rd
drugs” used in the Oklahoma protocol. Id., at 302; see also
id., at 322. And petitioners’ experts acknowledged that
they had no contrary scientific proof. See id., at 243–244
(Dr. Sasich stating that the ability of midazolam to render
a person insensate to the second and third drugs “has not
been subjected to scientific testing”); id., at 176 (Dr.
Lubarksy stating that “there is no scientific literature
addressing the use of midazolam as a manner to administer lethal injections in humans”).
In an effort to explain this dearth of evidence, Dr. Sasich
testified that “[i]t’s not my responsibility or the [Food and
Drug Administration’s] responsibility to prove that the
drug doesn’t work or is not safe.” Tr. of Preliminary Injunction Hearing 357 (Tr.). Instead, he stated, “it’s the
responsibility of the proponent to show that the drug is
safe and effective.” Ibid. Dr. Sasich confused the standard imposed on a drug manufacturer seeking approval of a
therapeutic drug with the standard that must be borne by
a party challenging a State’s lethal injection protocol.
When a method of execution is authorized under state law,
a party contending that this method violates the Eighth
Amendment bears the burden of showing that the method
creates an unacceptable risk of pain. Here, petitioners’
own experts effectively conceded that they lacked evidence
to prove their case beyond dispute.
Petitioners attempt to avoid this deficiency by criticizing
respondents’ expert. They argue that the District Court
should not have credited Dr. Evans’ testimony because he
admitted that his findings were based on “ ‘extrapo-
20
GLOSSIP v. GROSS
Opinion of the Court
lat[ions]’ ” from studies done about much lower therapeutic
doses of midazolam. See Brief for Petitioners 34 (citing Tr.
667–668; emphasis deleted). But because a 500-milligram
dose is never administered for a therapeutic purpose,
extrapolation was reasonable. And the conclusions of
petitioners’ experts were also based on extrapolations and
assumptions. For example, Dr. Lubarsky relied on “extrapolation of the ceiling effect data.” App. 177.
Based on the evidence that the parties presented to the
District Court, we must affirm. Testimony from both sides
supports the District Court’s conclusion that midazolam
can render a person insensate to pain. Dr. Evans testified
that although midazolam is not an analgesic, it can nonetheless “render the person unconscious and ‘insensate’ during the remainder of the procedure.” Id., at 294.
In his discussion about the ceiling effect, Dr. Sasich agreed
that as the dose of midazolam increases, it is “expected to
produce sedation, amnesia, and finally lack of response to
stimuli such as pain (unconsciousness).” Id., at 243.
Petitioners argue that midazolam is not powerful enough
to keep a person insensate to pain after the administration
of the second and third drugs, but Dr. Evans presented
creditable testimony to the contrary. See, e.g., Tr. 661
(testifying that a 500-milligram dose of midazolam will
induce a coma).4 Indeed, low doses of midazolam are
sufficient to induce unconsciousness and are even some——————
4 The principal dissent misunderstands the record when it bizarrely
suggests that midazolam is about as dangerous as a peanut. Post, at
15. Dr. Evans and Dr. Lubarsky agreed that midazolam has caused
fatalities in doses as low as 0.04 to 0.07 milligrams per kilogram. App.
217, 294. Even if death from such low doses is a “rare, unfortunate side
effec[t],” post, at 15, the District Court found that a massive 500milligram dose—many times higher than the lowest dose reported to
have produced death—will likely cause death in under an hour. App.
76–77.
Cite as: 576 U. S. ____ (2015)
21
Opinion of the Court
times used as the sole relevant drug in certain medical
procedures. Dr. Sasich conceded, for example, that midazolam might be used for medical procedures like colonoscopies and gastroscopies. App. 267–268; see also Brief for
Respondents 6–8.5
Petitioners emphasize that midazolam is not recommended or approved for use as the sole anesthetic during
painful surgery, but there are two reasons why this is not
dispositive. First, as the District Court found, the 500milligram dose at issue here “is many times higher than a
normal therapeutic dose of midazolam.” App. 76. The
effect of a small dose of midazolam has minimal probative
value about the effect of a 500-milligram dose. Second, the
fact that a low dose of midazolam is not the best drug for
maintaining unconsciousness during surgery says little
about whether a 500-milligram dose of midazolam is
constitutionally adequate for purposes of conducting an
execution. We recognized this point in Baze, where we
concluded that although the medical standard of care
might require the use of a blood pressure cuff and an
electrocardiogram during surgeries, this does not mean
those procedures are required for an execution to pass
Eighth Amendment scrutiny. 553 U. S., at 60.
Oklahoma has also adopted important safeguards to
ensure that midazolam is properly administered. The
——————
5 Petitioners’
experts also declined to testify that a 500-milligram
dose of midazolam is always insufficient to place a person in a coma
and render him insensate to pain. Dr. Lubarsky argued only that the
500-milligram dose cannot “reliably” produce a coma. Id., 228. And
when Dr. Sasich was asked whether he could say to a reasonable
degree of certainty that a 500-milligram dose of midazolam would not
render someone unconscious, he replied that he could not. Id., at 271–
272. A product label for midazolam that Dr. Sasich attached to his
expert report also acknowledged that an overdose of midazolam can
cause a coma. See Expert Report of Larry D. Sasich, in No. 14–6244
(CA10), p. 34.
22
GLOSSIP v. GROSS
Opinion of the Court
District Court emphasized three requirements in particular: The execution team must secure both a primary and
backup IV access site, it must confirm the viability of the
IV sites, and it must continuously monitor the offender’s
level of consciousness. The District Court did not commit
clear error in concluding that these safeguards help to
minimize any risk that might occur in the event that
midazolam does not operate as intended. Indeed, we
concluded in Baze that many of the safeguards that Oklahoma employs—including the establishment of a primary
and backup IV and the presence of personnel to monitor
an inmate—help in significantly reducing the risk that an
execution protocol will violate the Eighth Amendment.
Id., at 55–56. And many other safeguards that Oklahoma
has adopted mirror those that the dissent in Baze complained were absent from Kentucky’s protocol in that case.
For example, the dissent argued that because a consciousness check before injection of the second drug “can reduce
a risk of dreadful pain,” Kentucky’s failure to include that
step in its procedure was unconstitutional. Id., at 119
(opinion of GINSBURG, J.). The dissent also complained
that Kentucky did not monitor the effectiveness of the first
drug or pause between injection of the first and second
drugs. Id., at 120–121. Oklahoma has accommodated
each of those concerns.
B
Petitioners assert that midazolam’s “ceiling effect”
undermines the District Court’s finding about the effectiveness of the huge dose administered in the Oklahoma
protocol. Petitioners argue that midazolam has a “ceiling”
above which any increase in dosage produces no effect. As
a result, they maintain, it is wrong to assume that a 500milligram dose has a much greater effect than a therapeutic dose of about 5 milligrams. But the mere fact that
midazolam has such a ceiling cannot be dispositive. Dr.
Cite as: 576 U. S. ____ (2015)
23
Opinion of the Court
Sasich testified that “all drugs essentially have a ceiling
effect.” Tr. 343. The relevant question here is whether
midazolam’s ceiling effect occurs below the level of a 500milligram dose and at a point at which the drug does not
have the effect of rendering a person insensate to pain
caused by the second and third drugs.
Petitioners provided little probative evidence on this
point, and the speculative evidence that they did present
to the District Court does not come close to establishing
that its factual findings were clearly erroneous.
Dr. Sasich stated in his expert report that the literature
“indicates” that midazolam has a ceiling effect, but he
conceded that he “was unable to determine the midazolam
dose for a ceiling effect on unconsciousness because there
is no literature in which such testing has been done.” App.
243–244. Dr. Lubarsky’s report was similar, id., at 171–
172, and the testimony of petitioners’ experts at the hearing was no more compelling. Dr. Sasich frankly admitted
that he did a “search to try and determine at what dose of
midazolam you would get a ceiling effect,” but concluded:
“I could not find one.” Tr. 344. The closest petitioners
came was Dr. Lubarsky’s suggestion that the ceiling effect
occurs “[p]robably after about . . . 40 to 50 milligrams,” but
he added that he had not actually done the relevant calculations, and he admitted: “I can’t tell you right now” at
what dose the ceiling effect occurs. App. 225. We cannot
conclude that the District Court committed clear error in
declining to find, based on such speculative evidence, that
the ceiling effect negates midazolam’s ability to render an
inmate insensate to pain caused by the second and third
drugs in the protocol.
The principal dissent discusses the ceiling effect at
length, but it studiously avoids suggesting that petitioners
presented probative evidence about the dose at which the
ceiling effect occurs or about whether the effect occurs
before a person becomes insensate to pain. The principal
24
GLOSSIP v. GROSS
Opinion of the Court
dissent avoids these critical issues by suggesting that such
evidence is “irrelevant if there is no dose at which the drug
can . . . render a person ‘insensate to pain.’ ” Post, at 17.
But the District Court heard evidence that the drug can
render a person insensate to pain, and not just from Dr.
Evans: Dr. Sasich (one of petitioners’ own experts) testified that higher doses of midazolam are “expected to produce . . . lack of response to stimuli such as pain.” App.
243.6
In their brief, petitioners attempt to deflect attention
from their failure of proof regarding midazolam’s ceiling
effect by criticizing Dr. Evans’ testimony. But it was
petitioners’ burden to establish that midazolam’s ceiling
occurred at a dosage below the massive 500-milligram
dose employed in the Oklahoma protocol and at a point at
which the drug failed to render the recipient insensate to
pain. They did not meet that burden, and their criticisms
do not undermine Dr. Evans’ central point, which the
District Court credited, that a properly administered 500milligram dose of midazolam will render the recipient
unable to feel pain.
One of petitioners’ criticisms of Dr. Evans’ testimony is
little more than a quibble about the wording chosen by Dr.
Evans at one point in his oral testimony. Petitioners’
expert, Dr. Lubarsky, stated in his report that midazolam
“increases effective binding of [gamma-aminobutyric acid
(GABA)] to its receptor to induce unconsciousness.”7 App.
——————
6 The principal dissent emphasizes Dr. Lubarsky’s supposedly contrary testimony, but the District Court was entitled to credit Dr. Evans
(and Dr. Sasich) instead of Dr. Lubarsky on this point. And the District
Court had strong reasons not to credit Dr. Lubarsky, who even argued
that a protocol that includes sodium thiopental is “constructed to
produce egregious harm and suffering.” App. 227.
7 GABA is “an amino acid that functions as an inhibitory neurotransmitter in the brain and spinal cord.” Mosby’s Medical Dictionary
Cite as: 576 U. S. ____ (2015)
25
Opinion of the Court
172. Dr. Evans’ report provided a similar explanation of
the way in which midazolam works, see id., at 293–294,
and Dr. Lubarsky did not dispute the accuracy of that
explanation when he testified at the hearing. Petitioners
contend, however, that Dr. Evans erred when he said at
the hearing that “[m]idazolam attaches to GABA receptors, inhibiting GABA.” Id., at 312 (emphasis added).
Petitioners contend that this statement was incorrect
because “far from inhibiting GABA, midazolam facilitates
its binding to GABA receptors.” Brief for Petitioners 38.
In making this argument, petitioners are simply quarrelling with the words that Dr. Evans used during oral
testimony in an effort to explain how midazolam works in
terms understandable to a layman. Petitioners do not
suggest that the discussion of midazolam in Dr. Evans’
expert report was inaccurate, and as for Dr. Evans’ passing use of the term “inhibiting,” Dr. Lubarksy’s own expert
report states that GABA’s “inhibition of brain activity is
accentuated by midazolam.” App. 232 (emphasis added).
Dr. Evans’ oral use of the word “inhibiting”—particularly
in light of his written testimony—does not invalidate the
District Court’s decision to rely on his testimony.
Petitioners also point to an apparent conflict between
Dr. Evans’ testimony and a declaration by Dr. Lubarsky
(submitted after the District Court ruled) regarding the
biological process that produces midazolam’s ceiling effect.
But even if Dr. Lubarsky’s declaration is correct, it is
largely beside the point. What matters for present purposes is the dosage at which the ceiling effect kicks in, not
the biological process that produces the effect. And Dr.
Lubarsky’s declaration does not render the District Court’s
findings clearly erroneous with respect to that critical
issue.
——————
782 (7th ed. 2006).
26
GLOSSIP v. GROSS
Opinion of the Court
C
Petitioners’ remaining arguments about midazolam all
lack merit. First, we are not persuaded by petitioners’
argument that Dr. Evans’ testimony should have been
rejected because of some of the sources listed in his report.
Petitioners criticize two of the “selected references” that
Dr. Evans cited in his expert report: the Web site
drugs.com and a material safety data sheet (MSDS) about
midazolam. Petitioners’ argument is more of a Daubert
challenge to Dr. Evans’ testimony than an argument that
the District Court’s findings were clearly erroneous. The
District Court concluded that Dr. Evans was “wellqualified to give the expert testimony that he gave” and
that “his testimony was the product of reliable principles
and methods reliably applied to the facts of this case.”
App. 75–76. To the extent that the reliability of Dr.
Evans’ testimony is even before us, the District Court’s conclusion that his testimony was based on reliable sources is
reviewed under the deferential “abuse-of-discretion”
standard. General Elec. Co. v. Joiner, 522 U. S. 136, 142–
143 (1997). Dr. Evans relied on multiple sources and his
own expertise, and his testimony may not be disqualified
simply because one source (drugs.com) warns that it “ ‘is
not intended for medical advice’ ” and another (the MSDS)
states that its information is provided “ ‘without any warranty, express or implied, regarding its correctness.’ ”
Brief for Petitioners 36. Medical journals that both parties rely upon typically contain similar disclaimers. See,
e.g., Anesthesiology, Terms and Conditions of Use, online
at
http://anesthesiology.pubs.asahq.org/ss/terms.aspx
(“None of the information on this Site shall be used to
diagnose or treat any health problem or disease”). Dr.
Lubarsky—petitioners’ own expert—relied on an MSDS to
argue that midazolam has a ceiling effect. And petitioners
do not identify any incorrect statements from drugs.com
on which Dr. Evans relied. In fact, although Dr. Sasich
Cite as: 576 U. S. ____ (2015)
27
Opinion of the Court
submitted a declaration to the Court of Appeals criticizing
Dr. Evans’ reference to drugs.com, that declaration does
not identify a single fact from that site’s discussion of
midazolam that was materially inaccurate.
Second, petitioners argue that Dr. Evans’ expert report
contained a mathematical error, but we find this argument insignificant. Dr. Evans stated in his expert report
that the lowest dose of midazolam resulting in human
deaths, according to an MSDS, is 0.071 mg/kg delivered
intravenously. App. 294. Dr. Lubarsky agreed with this
statement. Specifically, he testified that fatalities have
occurred in doses ranging from 0.04 to 0.07 mg/kg, and he
stated that Dr. Evans’ testimony to that effect was “a true
statement” (though he added those fatalities occurred
among the elderly). Id., at 217. We do not understand
petitioners to dispute the testimony of Dr. Evans and their
own expert that 0.071 mg/kg is a potentially fatal dose of
midazolam. Instead, they make much of the fact that the
MSDS attached to Dr. Evans’ report apparently contained
a typographical error and reported the lowest toxic dose as
71 mg/kg. That Dr. Evans did not repeat that incorrect
figure but instead reported the correct dose supports
rather than undermines his testimony. In any event, the
alleged error in the MSDS is irrelevant because the District Court expressly stated that it did not rely on the
figure in the MSDS. See id., at 75.
Third, petitioners argue that there is no consensus
among the States regarding midazolam’s efficacy because
only four States (Oklahoma, Arizona, Florida, and Ohio)
have used midazolam as part of an execution. Petitioners
rely on the plurality’s statement in Baze that “it is difficult
to regard a practice as ‘objectively intolerable’ when it is in
fact widely tolerated,” and the plurality’s emphasis on the
fact that 36 States had adopted lethal injection and 30
States used the particular three-drug protocol at issue in
that case. 553 U. S., at 53. But while the near-universal
28
GLOSSIP v. GROSS
Opinion of the Court
use of the particular protocol at issue in Baze supported
our conclusion that this protocol did not violate the Eighth
Amendment, we did not say that the converse was true,
i.e., that other protocols or methods of execution are of
doubtful constitutionality. That argument, if accepted,
would hamper the adoption of new and potentially more
humane methods of execution and would prevent States
from adapting to changes in the availability of suitable
drugs.
Fourth, petitioners argue that difficulties with Oklahoma’s execution of Lockett and Arizona’s July 2014 execution of Joseph Wood establish that midazolam is sure or
very likely to cause serious pain. We are not persuaded.
Aside from the Lockett execution, 12 other executions
have been conducted using the three-drug protocol at issue
here, and those appear to have been conducted without
any significant problems. See Brief for Respondents 32;
Brief for State of Florida as Amicus Curiae 1. Moreover,
Lockett was administered only 100 milligrams of midazolam, and Oklahoma’s investigation into that execution
concluded that the difficulties were due primarily to the
execution team’s inability to obtain an IV access site. And
the Wood execution did not involve the protocol at issue
here. Wood did not receive a single dose of 500 milligrams
of midazolam; instead, he received fifteen 50-milligram
doses over the span of two hours.8 Brief for Respondents
——————
8 The
principal dissent emphasizes Dr. Lubarsky’s testimony that it is
irrelevant that Wood was administered the drug over a 2-hour period.
Post, at 20. But Dr. Evans disagreed and testified that if a 750milligram dose “was spread out over a long period of time,” such as one
hour (i.e., half the time at issue in the Wood execution), the drug might
not be as effective as if it were administered all at once. Tr. 667. The
principal dissent states that this “pronouncement was entirely unsupported,” post, at 20, n. 6, but it was supported by Dr. Evans’ expertise
and decades of experience. And it would be unusual for an expert
testifying on the stand to punctuate each sentence with citation to a
Cite as: 576 U. S. ____ (2015)
29
Opinion of the Court
12, n. 9. And Arizona used a different two-drug protocol
that paired midazolam with hydromorphone, a drug that
is not at issue in this case. Ibid. When all of the circumstances are considered, the Lockett and Wood executions
have little probative value for present purposes.
Finally, we find it appropriate to respond to the principal dissent’s groundless suggestion that our decision is
tantamount to allowing prisoners to be “drawn and quartered, slowly tortured to death, or actually burned at the
stake.” Post, at 28. That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the
weakness of its legal arguments.
VI
For these reasons, the judgment of the Court of Appeals
for the Tenth Circuit is affirmed.
It is so ordered.
——————
medical journal.
After the Wood execution, Arizona commissioned an independent
assessment of its execution protocol and the Wood execution. According
to that report, the IV team leader, medical examiner, and an independent physician all agreed that the dosage of midazolam “would result in
heavy sedation.” Ariz. Dept. of Corrections, Assessment and Review of
the Ariz. Dept. of Corrections Execution Protocols 46, 48 (Dec. 15,
2014), online at https://corrections.az.gov/sites/default/files/documents/
PDFs/arizona_final_report_12_15_14_w_cover.pdf.
And far from
blaming midazolam for the Wood execution, the report recommended
that Arizona replace its two-drug protocol with Oklahoma’s three-drug
protocol that includes a 500-milligram dose of midazolam as the first
drug. Id., at 49.
Cite as: 576 U. S. ____ (2015)
1
SCALIA, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–7955
_________________
RICHARD E. GLOSSIP, ET AL., PETITIONERS v.
KEVIN J. GROSS, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
[June 29, 2015] JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
concurring.
I join the opinion of the Court, and write to respond to
JUSTICE BREYER’s plea for judicial abolition of the death
penalty.
Welcome to Groundhog Day. The scene is familiar:
Petitioners, sentenced to die for the crimes they committed
(including, in the case of one petitioner since put to death,
raping and murdering an 11–month-old baby), come before
this Court asking us to nullify their sentences as “cruel
and unusual” under the Eighth Amendment. They rely on
this provision because it is the only provision they can rely
on. They were charged by a sovereign State with murder.
They were afforded counsel and tried before a jury of their
peers—tried twice, once to determine whether they were
guilty and once to determine whether death was the appropriate sentence. They were duly convicted and sentenced. They were granted the right to appeal and to seek
postconviction relief, first in state and then in federal
court. And now, acknowledging that their convictions are
unassailable, they ask us for clemency, as though clemency
were ours to give.
The response is also familiar: A vocal minority of the
Court, waving over their heads a ream of the most recent
abolitionist studies (a superabundant genre) as though
2
GLOSSIP v. GROSS
SCALIA, J., concurring
they have discovered the lost folios of Shakespeare, insist
that now, at long last, the death penalty must be abolished
for good. Mind you, not once in the history of the American Republic has this Court ever suggested the death
penalty is categorically impermissible. The reason is
obvious: It is impossible to hold unconstitutional that
which the Constitution explicitly contemplates. The Fifth
Amendment provides that “[n]o person shall be held to
answer for a capital . . . crime, unless on a presentment or
indictment of a Grand Jury,” and that no person shall be
“deprived of life . . . without due process of law.” Nevertheless, today JUSTICE BREYER takes on the role of the
abolitionists in this long-running drama, arguing that the
text of the Constitution and two centuries of history must
yield to his “20 years of experience on this Court,” and
inviting full briefing on the continued permissibility of
capital punishment, post, at 2 (dissenting opinion).
Historically, the Eighth Amendment was understood to
bar only those punishments that added “ ‘terror, pain, or
disgrace’ ” to an otherwise permissible capital sentence.
Baze v. Rees, 553 U. S. 35, 96 (2008) (THOMAS, J., concurring in judgment). Rather than bother with this troubling
detail, JUSTICE BREYER elects to contort the constitutional
text. Redefining “cruel” to mean “unreliable,” “arbitrary,”
or causing “excessive delays,” and “unusual” to include a
“decline in use,” he proceeds to offer up a white paper
devoid of any meaningful legal argument.
Even accepting JUSTICE BREYER’s rewriting of the
Eighth Amendment, his argument is full of internal contradictions and (it must be said) gobbledy-gook. He says
that the death penalty is cruel because it is unreliable; but
it is convictions, not punishments, that are unreliable.
Moreover, the “pressure on police, prosecutors, and jurors
to secure a conviction,” which he claims increases the risk
of wrongful convictions in capital cases, flows from the
nature of the crime, not the punishment that follows its
Cite as: 576 U. S. ____ (2015)
3
SCALIA, J., concurring
commission. Post, at 6. JUSTICE BREYER acknowledges as
much: “[T]he crimes at issue in capital cases are typically
horrendous murders, and thus accompanied by intense
community pressure.” Ibid. That same pressure would
exist, and the same risk of wrongful convictions, if horrendous death-penalty cases were converted into equally
horrendous life-without-parole cases. The reality is that
any innocent defendant is infinitely better off appealing a
death sentence than a sentence of life imprisonment.
(Which, again, JUSTICE BREYER acknowledges: “[C]ourts
(or State Governors) are 130 times more likely to exonerate a defendant where a death sentence is at issue,” post,
at 5.) The capital convict will obtain endless legal assistance from the abolition lobby (and legal favoritism from
abolitionist judges), while the lifer languishes unnoticed
behind bars.
JUSTICE BREYER next says that the death penalty is
cruel because it is arbitrary. To prove this point, he points
to a study of 205 cases that “measured the ‘egregiousness’
of the murderer’s conduct” with “a system of metrics,” and
then “compared the egregiousness of the conduct of the 9
defendants sentenced to death with the egregiousness of
the conduct of defendants in the remaining 196 cases [who
were not sentenced to death],” post, at 10–11. If only
Aristotle, Aquinas, and Hume knew that moral philosophy
could be so neatly distilled into a pocket-sized, vade mecum “system of metrics.” Of course it cannot: Egregiousness is a moral judgment susceptible of few hard-and-fast
rules. More importantly, egregiousness of the crime is
only one of several factors that render a punishment condign—culpability, rehabilitative potential, and the need
for deterrence also are relevant. That is why this Court
has required an individualized consideration of all mitigating circumstances, rather than formulaic application of
some egregiousness test.
It is because these questions are contextual and admit of
4
GLOSSIP v. GROSS
SCALIA, J., concurring
no easy answers that we rely on juries to make judgments
about the people and crimes before them. The fact that
these judgments may vary across cases is an inevitable
consequence of the jury trial, that cornerstone of AngloAmerican judicial procedure. But when a punishment is
authorized by law—if you kill you are subject to death—
the fact that some defendants receive mercy from their
jury no more renders the underlying punishment “cruel”
than does the fact that some guilty individuals are never
apprehended, are never tried, are acquitted, or are
pardoned.
JUSTICE BREYER’s third reason that the death penalty is
cruel is that it entails delay, thereby (1) subjecting inmates to long periods on death row and (2) undermining
the penological justifications of the death penalty. The
first point is nonsense. Life without parole is an even
lengthier period than the wait on death row; and if the
objection is that death row is a more confining environment, the solution should be modifying the environment
rather than abolishing the death penalty. As for the
argument that delay undermines the penological rationales for the death penalty: In insisting that “the major
alternative to capital punishment—namely, life in prison
without possibility of parole—also incapacitates,” post, at
24, JUSTICE BREYER apparently forgets that one of the
plaintiffs in this very case was already in prison when he
committed the murder that landed him on death row.
JUSTICE BREYER further asserts that “whatever interest in
retribution might be served by the death penalty as currently administered, that interest can be served almost as
well by a sentence of life in prison without parole,” post, at
27. My goodness. If he thinks the death penalty not much
more harsh (and hence not much more retributive), why is
he so keen to get rid of it? With all due respect, whether
the death penalty and life imprisonment constitute moreor-less equivalent retribution is a question far above the
Cite as: 576 U. S. ____ (2015)
5
SCALIA, J., concurring
judiciary’s pay grade. Perhaps JUSTICE BREYER is more
forgiving—or more enlightened—than those who, like
Kant, believe that death is the only just punishment for
taking a life. I would not presume to tell parents whose
life has been forever altered by the brutal murder of a
child that life imprisonment is punishment enough.
And finally, JUSTICE BREYER speculates that it does not
“seem likely” that the death penalty has a “significant”
deterrent effect. Post, at 25. It seems very likely to me,
and there are statistical studies that say so. See, e.g.,
Zimmerman, State Executions, Deterrence, and the Incidence of Murder, 7 J. Applied Econ. 163, 166 (2004) (“[I]t
is estimated that each state execution deters approximately
fourteen murders per year on average”); Dezhbakhsh,
Rubin, & Shepherd, Does Capital Punishment Have a
Deterrent Effect? New Evidence from Postmoratorium
Panel Data, 5 Am. L. & Econ. Rev. 344 (2003) (“[E]ach
execution results, on average, in eighteen fewer murders”
per year); Sunstein & Vermeule, Is Capital Punishment
Morally Required? Acts, Omissions, and Life-Life
Tradeoffs, 58 Stan. L. Rev. 703, 713 (2005) (“All in all, the
recent evidence of a deterrent effect from capital punishment seems impressive, especially in light of its ‘apparent
power and unanimity’ ”). But we federal judges live in a
world apart from the vast majority of Americans. After
work, we retire to homes in placid suburbia or to high-rise
co-ops with guards at the door. We are not confronted
with the threat of violence that is ever present in many
Americans’ everyday lives. The suggestion that the incremental deterrent effect of capital punishment does not
seem “significant” reflects, it seems to me, a let-them-eatcake obliviousness to the needs of others. Let the People
decide how much incremental deterrence is appropriate.
Of course, this delay is a problem of the Court’s own
making. As JUSTICE BREYER concedes, for more than 160
years, capital sentences were carried out in an average of
6
GLOSSIP v. GROSS
SCALIA, J., concurring
two years or less. Post, at 18. But by 2014, he tells us, it
took an average of 18 years to carry out a death sentence.
Id., at 19. What happened in the intervening years?
Nothing other than the proliferation of labyrinthine restrictions on capital punishment, promulgated by this
Court under an interpretation of the Eighth Amendment
that empowered it to divine “the evolving standards of
decency that mark the progress of a maturing society,”
Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)—a task for which we are eminently ill suited. Indeed,
for the past two decades, JUSTICE BREYER has been the
Drum Major in this parade. His invocation of the resultant delay as grounds for abolishing the death penalty calls
to mind the man sentenced to death for killing his parents,
who pleads for mercy on the ground that he is an orphan.
Amplifying the surrealism of his argument, JUSTICE
BREYER uses the fact that many States have abandoned
capital punishment—have abandoned it precisely because
of the costs those suspect decisions have imposed—to
conclude that it is now “unusual.” Post, at 33–39. (A
caution to the reader: Do not use the creative arithmetic
that JUSTICE BREYER employs in counting the number of
States that use the death penalty when you prepare your
next tax return; outside the world of our Eighth Amendment abolitionist-inspired jurisprudence, it will be regarded
as more misrepresentation than math.)
If we were to travel down the path that JUSTICE BREYER
sets out for us and once again consider the constitutionality
of the death penalty, I would ask that counsel also brief
whether our cases that have abandoned the historical
understanding of the Eighth Amendment, beginning with
Trop, should be overruled. That case has caused more
mischief to our jurisprudence, to our federal system, and
to our society than any other that comes to mind. JUSTICE
BREYER’s dissent is the living refutation of Trop’s assumption that this Court has the capacity to recognize “evolving
Cite as: 576 U. S. ____ (2015)
7
SCALIA, J., concurring
standards of decency.” Time and again, the People have
voted to exact the death penalty as punishment for the
most serious of crimes. Time and again, this Court has
upheld that decision. And time and again, a vocal minority of this Court has insisted that things have “changed
radically,” post, at 2, and has sought to replace the judgments of the People with their own standards of decency.
Capital punishment presents moral questions that
philosophers, theologians, and statesmen have grappled
with for millennia. The Framers of our Constitution
disagreed bitterly on the matter. For that reason, they
handled it the same way they handled many other controversial issues: they left it to the People to decide. By
arrogating to himself the power to overturn that decision,
JUSTICE BREYER does not just reject the death penalty, he
rejects the Enlightenment.
Cite as: 576 U. S. ____ (2015)
1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–7955
_________________
RICHARD E. GLOSSIP, ET AL., PETITIONERS v.
KEVIN J. GROSS, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
[June 29, 2015] JUSTICE THOMAS, with whom JUSTICE SCALIA joins,
concurring.
I agree with the Court that petitioners’ Eighth Amendment claim fails. That claim has no foundation in the
Eighth Amendment, which prohibits only those “method[s]
of execution” that are “deliberately designed to inflict
pain.” Baze v. Rees, 553 U. S. 35, 94 (2008) (THOMAS, J.,
concurring in judgment). Because petitioners make no
allegation that Oklahoma adopted its lethal injection
protocol “to add elements of terror, pain, or disgrace to the
death penalty,” they have no valid claim. Id., at 107.
That should have been the end of this case, but our precedents have predictably transformed the federal courts
“into boards of inquiry charged with determining the ‘best
practices’ for executions,” id., at 101 (internal quotation
marks omitted), necessitating the painstaking factual
inquiry the Court undertakes today. Although I continue
to believe that the broader interpretation of the Eighth
Amendment advanced in the plurality opinion in Baze is
erroneous, I join the Court’s opinion in full because it
correctly explains why petitioners’ claim fails even under
that controlling opinion.
I write separately to respond to JUSTICE BREYER’s dissent questioning the constitutionality of the death penalty
generally. No more need be said about the constitutional
2
GLOSSIP v. GROSS
THOMAS, J., concurring
arguments on which JUSTICE BREYER relies, as my colleagues and I have elsewhere refuted them.1 But JUSTICE
BREYER’s assertion, post, at 10, that the death penalty in
this country has fallen short of the aspiration that capital
punishment be reserved for the “worst of the worst” —a
notion itself based on an implicit proportionality principle
that has long been discredited, see Harmelin v. Michigan,
——————
1 Generally: Baze v. Rees, 553 U. S. 35, 94–97 (2008) (THOMAS, J.,
concurring in judgment) (explaining that the Cruel and Unusual
Punishments Clause does not prohibit the death penalty, but only
torturous punishments); Graham v. Collins, 506 U. S. 461, 488 (1993)
(THOMAS, J., concurring); Gardner v. Florida, 430 U. S. 349, 371 (1977)
(Rehnquist, J., dissenting) (“The prohibition of the Eighth Amendment
relates to the character of the punishment, and not to the process by
which it is imposed”). On reliability: Kansas v. Marsh, 548 U. S. 163,
181 (2006) (noting that the death penalty remains constitutional
despite imperfections in the criminal justice system); McGautha v.
California, 402 U. S. 183, 221 (1971) (“[T]he Federal Constitution,
which marks the limits of our authority in these cases, does not guarantee trial procedures that are the best of all worlds, or that accord
with the most enlightened ideas of students of the infant science of
criminology, or even those that measure up to the individual predilections of members of this Court”). On arbitrariness: Ring v. Arizona,
536 U. S. 584, 610 (2002) (SCALIA, J., concurring) (explaining that what
compelled States to specify “ ‘aggravating factors’ ” designed to limit the
death penalty to the worst of the worst was this Court’s baseless
jurisprudence concerning juror discretion); McCleskey v. Kemp, 481
U. S. 279, 308–312 (1987) (noting that various procedures, including
the right to a jury trial, constitute a defendant’s protection against
arbitrariness in the application of the death penalty). On excessive
delays: Knight v. Florida, 528 U. S. 990 (1999) (THOMAS, J., concurring
in denial of certiorari) (“I am unaware of any support in the American
constitutional tradition or in this Court’s precedent for the proposition
that a defendant can avail himself of the panoply of appellate and
collateral procedures and then complain when his execution is delayed”); see also Johnson v. Bredesen, 558 U. S. 1067, 1070 (2009)
(THOMAS, J., concurring in denial of certiorari). And on the decline in
use of the death penalty: Atkins v. Virginia, 536 U. S. 304, 345 (2002)
(SCALIA, J., dissenting); Woodson v. North Carolina, 428 U. S. 280, 308–
310 (1976) (Rehnquist, J., dissenting).
Cite as: 576 U. S. ____ (2015)
3
THOMAS, J., concurring
501 U. S. 957, 966 (1991) (opinion of SCALIA, J.)—merits
further comment. His conclusion is based on an analysis
that itself provides a powerful case against enforcing an
imaginary constitutional rule against “arbitrariness.”
The thrust of JUSTICE BREYER’s argument is that empirical studies performed by death penalty abolitionists
reveal that the assignment of death sentences does not
necessarily correspond to the “egregiousness” of the
crimes, but instead appears to be correlated to “arbitrary”
factors, such as the locality in which the crime was committed. Relying on these studies to determine the constitutionality of the death penalty fails to respect the values
implicit in the Constitution’s allocation of decisionmaking
in this context. The Donohue study, on which JUSTICE
BREYER relies most heavily, measured the “egregiousness”
(or “deathworthiness”) of murders by asking lawyers to
identify the legal grounds for aggravation in each case,
and by asking law students to evaluate written summaries
of the murders and assign “egregiousness” scores based on
a rubric designed to capture and standardize their moral
judgments. Donohue, An Empirical Evaluation of the
Connecticut Death Penalty System Since 1973, Are There
Unlawful Racial, Gender, and Geographic Disparities? 11
J. of Empirical Legal Studies 637, 644–645 (2014). This
exercise in some ways approximates the function performed by jurors, but there is at least one critical difference: The law students make their moral judgments based
on written summaries—they do not sit through hours,
days, or weeks of evidence detailing the crime; they do not
have an opportunity to assess the credibility of witnesses,
to see the remorse of the defendant, to feel the impact of
the crime on the victim’s family; they do not bear the
burden of deciding the fate of another human being; and
they are not drawn from the community whose sense of
security and justice may have been torn asunder by an act
of callous disregard for human life. They are like appel-
4
GLOSSIP v. GROSS
THOMAS, J., concurring
late judges and justices, reviewing only a paper record of
each side’s case for life or death.
There is a reason the choice between life and death,
within legal limits, is left to the jurors and judges who sit
through the trial, and not to legal elites (or law students).2
That reason is memorialized not once, but twice, in our
Constitution: Article III guarantees that “[t]he Trial of all
Crimes, except in cases of Impeachment, shall be by Jury”
and that “such Trial shall be held in the State where the
said Crimes shall have been committed.” Art. III, §2, cl. 3.
And the Sixth Amendment promises that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a . . .
trial, by an impartial jury of the State and district wherein
the crime shall have been committed.” Those provisions
ensure that capital defendants are given the option to be
sentenced by a jury of their peers who, collectively, are
better situated to make the moral judgment between life
and death than are the products of contemporary American law schools.
It should come as no surprise, then, that the primary
explanation a regression analysis revealed for the gap
between the egregiousness scores and the actual sentences
was not the race or sex of the offender or victim, but the
locality in which the crime was committed. Donohue,
supra, at 640; see also post, at 12 (BREYER, J., dissenting).
What is more surprising is that JUSTICE BREYER considers
——————
2 For some, a faith in the jury seems to be correlated to that institution’s likelihood of preventing imposition of the death penalty. See, e.g.,
Ring v. Arizona, 536 U. S. 584, 614 (2002) (BREYER, J., concurring in
judgment) (arguing that “the Eighth Amendment requires that a jury,
not a judge, make the decision to sentence a defendant to death”);
Wainwright v. Witt, 469 U. S. 412, 440, n. 1 (1985) (Brennan, J., dissenting) (“However heinous Witt’s crime, the majority’s vivid portrait of
its gruesome details has no bearing on the issue before us. It is not for
this Court to decide whether Witt deserves to die. That decision must
first be made by a jury of his peers”).
Cite as: 576 U. S. ____ (2015)
5
THOMAS, J., concurring
this factor to be evidence of arbitrariness. See ibid. The
constitutional provisions just quoted, which place such
decisions in the hands of jurors and trial courts located
where “the crime shall have been committed,” seem deliberately designed to introduce that factor.
In any event, the results of these studies are inherently
unreliable because they purport to control for egregiousness by quantifying moral depravity in a process that is
itself arbitrary, not to mention dehumanizing. One such
study’s explanation of how the author assigned “depravity
points” to identify the “worst of the worst” murderers
proves the point well. McCord, Lightning Still Strikes, 71
Brooklyn L. Rev. 797, 833–834 (2005). Each aggravating
factor received a point value based on the “blameworth[iness]” of the action associated with it. Id., at 830.
Killing a prison guard, for instance, earned a defendant
three “depravity points” because it improved the case for
complete incapacitation, while killing a police officer
merited only two, because, “considered dispassionately,”
such acts do “not seem be a sine qua non of the worst
criminals.” Id., at 834–836. (Do not worry, the author
reassures us, “many killers of police officers accrue depravity points in other ways that clearly put them among
the worst criminals.” Id., at 836.) Killing a child under
the age of 12 was worth two depravity points, because
such an act “seems particularly heartless,” but killing
someone over the age of 70 earned the murderer only one,
for although “elderly victims tug at our hearts,” they do so
“less” than children “because the promise of a long life is
less.” Id., at 836, 838. Killing to make a political statement was worth three depravity points; killing out of
racial hatred, only two. Id., at 835, 837. It goes on, but
this small sample of the moral judgments on which this
study rested shows just how unsuitable this evidence is to
serve as a basis for a judicial decision declaring unconstitutional a punishment duly enacted in more than 30
6
GLOSSIP v. GROSS
THOMAS, J., concurring
States, and by the Federal Government.
We owe victims more than this sort of pseudoscientific
assessment of their lives. It is bad enough to tell a mother
that her child’s murder is not “worthy” of society’s ultimate expression of moral condemnation. But to do so
based on cardboard stereotypes or cold mathematical
calculations is beyond my comprehension. In my decades
on the Court, I have not seen a capital crime that could
not be considered sufficiently “blameworthy” to merit a
death sentence (even when genuine constitutional errors
justified a vacatur of that sentence).3
A small sample of the applications for a stay of execution that have come before the Court this Term alone
proves my point. Mark Christeson was due to be executed
in October 2014 for his role in the murder of Susan Brouk
and her young children, Adrian and Kyle. After raping
——————
3 For his part, JUSTICE BREYER explains that his experience on the
Court has shown him “discrepancies for which [he] can find no rational
explanations.” Post, at 16. Why, he asks, did one man receive death for
a single-victim murder, while another received life for murdering a
young mother and nearly killing her infant? Ibid. The outcomes in
those two cases may not be morally compelled, but there was certainly
a rational explanation for them: The first man, who had previously
confessed to another murder, killed a disabled man who had offered
him a place to stay for the night. State v. Badgett, 361 N. C. 234, 239–
240, 644 S. E. 2d 206, 209–210 (2007). The killer stabbed his victim’s
throat and prevented him from seeking medical attention until he bled
to death. Ibid. The second man expressed remorse for his crimes and
claimed to suffer from mental disorders. See Charbonneau, Andre
Edwards Sentenced to Life in Prison for 2001 Murder, WRAL, Mar. 26,
2004, online at http://www.wral.com/news/local/story/109648 (all Internet materials as visited June 25, 2015, and available in Clerk of Court’s
case file); Charbonneau, Jury Finds Andre Edwards Guilty of First-Degree
Murder, WRAL, Mar. 23, 2004, online at http://www.wral.com/news/local/
story/109563. The other “discrepancies” similarly have “rational”
explanations, even if reasonable juries could have reached different
results.
Cite as: 576 U. S. ____ (2015)
7
THOMAS, J., concurring
Ms. Brouk at gunpoint, he and his accomplice drove the
family to a remote pond, where Christeson cut Ms. Brouk’s
throat with a bone knife. State v. Christeson, 50 S. W. 3d
251, 257–258 (Mo. 2001). Although bleeding profusely,
she stayed alive long enough to tell her children she loved
them and to watch as Christeson murdered them—her
son, by cutting his throat twice and drowning him; her
daughter, by pressing down on her throat until she suffocated. Ibid. Christeson and his accomplice then threw
Ms. Brouk—alive but barely breathing—into the pond to
drown on top of her dead children. Ibid. This Court
granted him a stay of execution. Christeson v. Roper, 574
U. S. ___ (2014). Lisa Ann Coleman was not so lucky. She
was executed on September 17, 2014, for murdering her
girlfriend’s son, 9-year-old Davontae Williams, by slowly
starving him to death. Coleman v. State, 2009 WL
4696064, *1 (Tex. Crim. App., Dec. 9, 2009). When he
died, Davontae had over 250 distinct injuries—including
cigarette burns and ligature marks—on his 36-pound
frame. Id., at *2. Infections from untreated wounds contributed to his other cause of death: pneumonia. Id., at
*1–*2. And Johnny Shane Kormondy, who met his end on
January 15, 2015, did so after he and his two accomplices
invaded the home of a married couple, took turns raping
the wife and forcing her to perform oral sex at gunpoint—
at one point, doing both simultaneously—and then put a
bullet in her husband’s head during the final rape. Kormondy v. Secretary, Fla. Dept. of Corrections, 688 F. 3d
1244, 1247–1248 (CA11 2012).
Some of our most “egregious” cases have been those in
which we have granted relief based on an unfounded
Eighth Amendment claim. For example, we have granted
relief in a number of egregious cases based on this Court’s
decision in Atkins v. Virginia, 536 U. S. 304 (2002), exempting certain “mentally retarded” offenders from the
death penalty. Last Term, the Court granted relief to a
8
GLOSSIP v. GROSS
THOMAS, J., concurring
man who kidnaped, beat, raped, and murdered a 21-yearold pregnant newlywed, Karol Hurst, also murdering her
unborn child, and then, on the same day, murdered a
sheriff ’s deputy acting in the line of duty. Hall v. Florida,
572 U. S. ___, ___ (2014) (slip op., at 1). And in Atkins
itself, the Court granted relief to a man who carjacked
Eric Michael Nesbitt, forced him to withdraw money from
a bank, drove him to a secluded area, and then shot him
multiple times before leaving him to bleed to death. Atkins v. Commonwealth, 257 Va. 160, 166–167, 510 S. E. 2d
445, 449–450 (1999).
The Court has also misinterpreted the Eighth Amendment to grant relief in egregious cases involving rape. In
Kennedy v. Louisiana, 554 U. S. 407 (2008), the Court
granted relief to a man who had been sentenced to death
for raping his 8-year-old stepdaughter. The rape was so
violent that it “separated her cervix from the back of her
vagina, causing her rectum to protrude into the vaginal
structure,” and tore her “entire perineum . . . from the
posterior fourchette to the anus.” Id., at 414. The evidence indicated that the petitioner spent at least an hour
and half attempting to destroy the evidence of his crime
before seeking emergency assistance, even as his stepdaughter bled profusely from her injuries. Id., at 415.
And in Coker v. Georgia, 433 U. S. 584 (1977) (plurality
opinion), the Court granted relief to a petitioner who had
escaped from prison, broken into the home of a young
married couple and their newborn, forced the wife to bind
her husband, gagged her husband with her underwear,
raped her (even after being told that she was recovering
from a recent childbirth), and then kidnaped her after
threatening her husband, Coker v. State, 234 Ga. 555,
556–557, 216 S. E. 2d 782, 786–787 (1975). In each case,
the Court crafted an Eighth Amendment right to be free
from execution for the crime of rape—whether it be of an
adult, Coker, 433 U. S., at 592, or a child, Kennedy, supra,
Cite as: 576 U. S. ____ (2015)
9
THOMAS, J., concurring
at 413.
The Court’s recent decision finding that the Eighth
Amendment prohibits the execution of those who committed their crimes as juveniles is no different. See Roper v.
Simmons, 543 U. S. 551 (2005). Although the Court had
rejected the claim less than two decades earlier, Stanford
v. Kentucky, 492 U. S. 361 (1989), it decided to revisit the
issue for a petitioner who had slain his victim because “he
wanted to murder someone” and believed he could “get
away with it” because he was a few months shy of his 18th
birthday. 543 U. S., at 556. His randomly chosen victim
was Shirley Crook, whom he and his friends kidnaped in
the middle of the night, bound with duct tape and electrical wire, and threw off a bridge to drown in the river
below. Id., at 556–557. The State of Alabama’s brief in
that case warned the Court that its decision would free
from death row a number of killers who had been sentenced for crimes committed as juveniles. Brief for State
of Alabama et al. as Amici Curiae in Roper v. Simmons, O.
T. 2014, No. 03–633. Mark Duke, for example, murdered
his father for refusing to loan him a truck, and his father’s
girlfriend and her two young daughters because he wanted
no witnesses to the crime. Id., at 4. He shot his father
and his father’s girlfriend pointblank in the face as they
pleaded for their lives. Id., at 5–6. He then tracked the
girls down in their hiding places and slit their throats,
leaving them alive for several minutes as they drowned in
their own blood. Id., at 6–7.
Whatever one’s views on the permissibility or wisdom of
the death penalty, I doubt anyone would disagree that
each of these crimes was egregious enough to merit the
severest condemnation that society has to offer. The only
constitutional problem with the fact that these criminals
were spared that condemnation, while others were not, is
10
GLOSSIP v. GROSS
THOMAS, J., concurring
that their amnesty came in the form of unfounded claims.
Arbitrariness has nothing to do with it.4 To the extent
that we are ill at ease with these disparate outcomes, it
seems to me that the best solution is for the Court to stop
making up Eighth Amendment claims in its ceaseless
quest to end the death penalty through undemocratic
means.
——————
4 JUSTICE
BREYER appears to acknowledge that our decision holding
mandatory death penalty schemes unconstitutional, Woodson v. North
Carolina, 428 U. S. 280 (1976) (plurality opinion), may have introduced
the problem of arbitrary application. Post, at 14. I agree that Woodson
eliminated one reliable legislative response to concerns about arbitrariness. Graham v. Collins, 506 U. S. 461, 486 (1993) (THOMAS, J., concurring). Because that decision was also questionable on constitutional
grounds, id., at 486–488, I would be willing to revisit it in a future case.
Cite as: 576 U. S. ____ (2015)
1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–7955
_________________
RICHARD E. GLOSSIP, ET AL., PETITIONERS v.
KEVIN J. GROSS, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
[June 29, 2015]
JUSTICE BREYER, with whom JUSTICE GINSBURG joins,
dissenting.
For the reasons stated in JUSTICE SOTOMAYOR’s opinion,
I dissent from the Court’s holding. But rather than try to
patch up the death penalty’s legal wounds one at a time, I
would ask for full briefing on a more basic question:
whether the death penalty violates the Constitution.
The relevant legal standard is the standard set forth in
the Eighth Amendment. The Constitution there forbids
the “inflict[ion]” of “cruel and unusual punishments.”
Amdt. 8. The Court has recognized that a “claim that
punishment is excessive is judged not by the standards
that prevailed in 1685 when Lord Jeffreys presided over
the ‘Bloody Assizes’ or when the Bill of Rights was adopted,
but rather by those that currently prevail.” Atkins v.
Virginia, 536 U. S. 304, 311 (2002). Indeed, the Constitution prohibits various gruesome punishments that were
common in Blackstone’s day. See 4 W. Blackstone, Commentaries on the Laws of England 369–370 (1769) (listing
mutilation and dismembering, among other punishments).
Nearly 40 years ago, this Court upheld the death penalty under statutes that, in the Court’s view, contained
safeguards sufficient to ensure that the penalty would be
applied reliably and not arbitrarily. See Gregg v. Georgia,
428 U. S. 153, 187 (1976) (joint opinion of Stewart, Powell,
2
GLOSSIP v. GROSS
BREYER, J., dissenting
and Stevens, JJ.); Proffitt v. Florida, 428 U. S. 242, 247
(1976) (joint opinion of Stewart, Powell, and Stevens, JJ.);
Jurek v. Texas, 428 U. S. 262, 268 (1976) (joint opinion of
Stewart, Powell, and Stevens, JJ.); but cf. Woodson v.
North Carolina, 428 U. S. 280, 303 (1976) (plurality opinion) (striking down mandatory death penalty); Roberts v.
Louisiana, 428 U. S. 325, 331 (1976) (plurality opinion)
(similar). The circumstances and the evidence of the
death penalty’s application have changed radically since
then. Given those changes, I believe that it is now time to
reopen the question.
In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in
effect delegated significant responsibility to the States to
develop procedures that would protect against those constitutional problems. Almost 40 years of studies, surveys,
and experience strongly indicate, however, that this effort
has failed. Today’s administration of the death penalty
involves three fundamental constitutional defects: (1)
serious unreliability, (2) arbitrariness in application, and
(3) unconscionably long delays that undermine the death
penalty’s penological purpose. Perhaps as a result, (4)
most places within the United States have abandoned its
use.
I shall describe each of these considerations, emphasizing changes that have occurred during the past four decades. For it is those changes, taken together with my own
20 years of experience on this Court, that lead me to believe that the death penalty, in and of itself, now likely
constitutes a legally prohibited “cruel and unusual punishmen[t].” U. S. Const., Amdt. 8.
I
“Cruel”—Lack of Reliability
This Court has specified that the finality of death creates a “qualitative difference” between the death penalty
Cite as: 576 U. S. ____ (2015)
3
BREYER, J., dissenting
and other punishments (including life in prison). Woodson, 428 U. S., at 305 (plurality opinion). That “qualitative difference” creates “a corresponding difference in the
need for reliability in the determination that death is the
appropriate punishment in a specific case.” Ibid. There is
increasing evidence, however, that the death penalty as
now applied lacks that requisite reliability. Cf. Kansas v.
Marsh, 548 U. S. 163, 207–211 (2006) (Souter, J., dissenting) (DNA exonerations constitute “a new body of
fact” when considering the constitutionality of capital
punishment).
For one thing, despite the difficulty of investigating the
circumstances surrounding an execution for a crime that
took place long ago, researchers have found convincing
evidence that, in the past three decades, innocent people
have been executed. See, e.g., Liebman, Fatal Injustice;
Carlos DeLuna’s Execution Shows That a Faster, Cheaper
Death Penalty is a Dangerous Idea, L. A. Times, June 1,
2012, p. A19 (describing results of a 4-year investigation,
later published as The Wrong Carlos: Anatomy of a
Wrongful Execution (2014), that led its authors to conclude that Carlos DeLuna, sentenced to death and executed
in 1989, six years after his arrest in Texas for stabbing
a single mother to death in a convenience store, was innocent); Grann, Trial By Fire: Did Texas Execute An Innocent Man? The New Yorker, Sept. 7, 2009, p. 42 (describing evidence that Cameron Todd Willingham was
convicted, and ultimately executed in 2004, for the apparently motiveless murder of his three children as the result
of invalid scientific analysis of the scene of the house fire
that killed his children). See also, e.g., Press Release: Gov.
Ritter Grants Posthumous Pardon in Case Dating Back to
1930s, Jan. 7, 2011, p. 1 (Colorado Governor granted full
and unconditional posthumous pardon to Joe Arridy, a
man with an IQ of 46 who was executed in 1936, because,
according to the Governor, “an overwhelming body of
4
GLOSSIP v. GROSS
BREYER, J., dissenting
evidence indicates the 23-year-old Arridy was innocent,
including false and coerced confessions, the likelihood that
Arridy was not in Pueblo at the time of the killing, and an
admission of guilt by someone else”); R. Warden, Wilkie
Collins’s The Dead Alive: The Novel, the Case, and Wrongful Convictions 157–158 (2005) (in 1987, Nebraska Governor Bob Kerrey pardoned William Jackson Marion, who
had been executed a century earlier for the murder of
John Cameron, a man who later turned up alive; the
alleged victim, Cameron, had gone to Mexico to avoid a
shotgun wedding).
For another, the evidence that the death penalty has
been wrongly imposed (whether or not it was carried out),
is striking. As of 2002, this Court used the word “disturbing” to describe the number of instances in which individuals had been sentenced to death but later exonerated. At
that time, there was evidence of approximately 60
exonerations in capital cases.
Atkins, 536 U. S., at
320, n. 25; National Registry of Exonerations, online at
http://www.law.umich.edu/special/exoneration/Pages/about.
aspx (all Internet materials as visited June 25, 2015, and
available in Clerk of Court’s case file). (I use “exoneration” to refer to relief from all legal consequences of a
capital conviction through a decision by a prosecutor, a
Governor or a court, after new evidence of the defendant’s
innocence was discovered.) Since 2002, the number of
exonerations in capital cases has risen to 115. Ibid.; National Registry of Exonerations, Exonerations in the United
States, 1989–2012, pp. 6–7 (2012) (Exonerations 2012
Report) (defining exoneration); accord, Death Penalty
Information Center (DPIC), Innocence: List of Those Freed
from Death Row, online at http://www.deathpenaltyinfo.
org/innocence-and-death-penalty (DPIC Innocence List)
(calculating, under a slightly different definition of exoneration, the number of exonerations since 1973 as 154).
Last year, in 2014, six death row inmates were exonerated
Cite as: 576 U. S. ____ (2015)
5
BREYER, J., dissenting
based on actual innocence. All had been imprisoned for
more than 30 years (and one for almost 40 years) at the
time of their exonerations. National Registry of Exonerations, Exonerations in 2014, p. 2 (2015).
The stories of three of the men exonerated within the
last year are illustrative. DNA evidence showed that
Henry Lee McCollum did not commit the rape and murder
for which he had been sentenced to death. Katz & Eckholm, DNA Evidence Clears Two Men in 1983 Murder,
N. Y. Times, Sept. 3, 2014, p. A1. Last Term, this Court
ordered that Anthony Ray Hinton, who had been convicted
of murder, receive further hearings in state court; he was
exonerated earlier this year because the forensic evidence
used against him was flawed. Hinton v. Alabama, 571
U. S. ___ (2014) (per curiam); Blinder, Alabama Man on
Death Row for Three Decades Is Freed as State’s Case
Erodes, N. Y. Times, Apr. 4, 2014, p. A11. And when
Glenn Ford, also convicted of murder, was exonerated, the
prosecutor admitted that even “[a]t the time this case was
tried there was evidence that would have cleared Glenn
Ford.” Stroud, Lead Prosecutor Apologizes for Role in
Sending Man to Death Row, Shreveport Times, Mar. 27,
2015. All three of these men spent 30 years on death row
before being exonerated. I return to these examples infra.
Furthermore, exonerations occur far more frequently
where capital convictions, rather than ordinary criminal
convictions, are at issue. Researchers have calculated that
courts (or State Governors) are 130 times more likely to
exonerate a defendant where a death sentence is at issue.
They are nine times more likely to exonerate where a
capital murder, rather than a noncapital murder, is at
issue. Exonerations 2012 Report 15–16, and nn. 24–26.
Why is that so? To some degree, it must be because the
law that governs capital cases is more complex. To some
degree, it must reflect the fact that courts scrutinize capital cases more closely. But, to some degree, it likely also
6
GLOSSIP v. GROSS
BREYER, J., dissenting
reflects a greater likelihood of an initial wrongful conviction. How could that be so? In the view of researchers
who have conducted these studies, it could be so because
the crimes at issue in capital cases are typically horrendous murders, and thus accompanied by intense community
pressure on police, prosecutors, and jurors to secure a
conviction. This pressure creates a greater likelihood of
convicting the wrong person. See Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in the United
States 1989 Through 2003, 95 J. Crim. L. & C. 523, 531–
533 (2005); Gross & O’Brien, Frequency and Predictors of
False Conviction: Why We Know So Little, and New Data
on Capital Cases, 5 J. Empirical L. Studies 927, 956–957
(2008) (noting that, in comparing those who were exonerated from death row to other capital defendants who were
not so exonerated, the initial police investigations tended
to be shorter for those exonerated); see also B. Garrett,
Convicting the Innocent: Where Criminal Prosecutions Go
Wrong (2011) (discussing other common causes of wrongful convictions generally including false confessions, mistaken eyewitness testimony, untruthful jailhouse informants, and ineffective defense counsel).
In the case of Cameron Todd Willingham, for example,
who (as noted earlier) was executed despite likely innocence, the State Bar of Texas recently filed formal misconduct charges against the lead prosecutor for his actions—
actions that may have contributed to Willingham’s conviction. Possley, Prosecutor Accused of Misconduct in Death
Penalty Case, Washington Post, Mar. 19, 2015, p. A3. And
in Glenn Ford’s case, the prosecutor admitted that he was
partly responsible for Ford’s wrongful conviction, issuing a
public apology to Ford and explaining that, at the time of
Ford’s conviction, he was “not as interested in justice as
[he] was in winning.” Stroud, supra.
Other factors may also play a role. One is the practice
of death-qualification; no one can serve on a capital jury
Cite as: 576 U. S. ____ (2015)
7
BREYER, J., dissenting
who is not willing to impose the death penalty. See
Rozelle, The Principled Executioner: Capital Juries’ Bias
and the Benefits of True Bifurcation, 38 Ariz. S. L. J. 769,
772–793, 807 (2006) (summarizing research and concluding that “[f]or over fifty years, empirical investigation has
demonstrated that death qualification skews juries toward
guilt and death”); Note, Mandatory Voir Dire Questions in
Capital Cases: A Potential Solution to the Biases of Death
Qualification, 10 Roger Williams Univ. L. Rev. 211, 214–
223 (2004) (similar).
Another is the more general problem of flawed forensic
testimony. See Garrett, supra, at 7. The Federal Bureau
of Investigation (FBI), for example, recently found that
flawed microscopic hair analysis was used in 33 of 35
capital cases under review; 9 of the 33 had already been
executed. FBI, National Press Releases, FBI Testimony
on Microscopic Hair Analysis Contained Errors in at Least
90 Percent of Cases in Ongoing Review, Apr. 20, 2015.
See also Hsu, FBI Admits Errors at Trials: False Matches
on Crime-Scene Hair, Washington Post, Apr. 19, 2015,
p. A1 (in the District of Columbia, which does not have the
death penalty, five of seven defendants in cases with
flawed hair analysis testimony were eventually exonerated).
In light of these and other factors, researchers estimate
that about 4% of those sentenced to death are actually
innocent. See Gross, O’Brien, Hu, & Kennedy, Rate of
False Conviction of Criminal Defendants Who Are Sentenced to Death, 111 Proceeding of the National Academy
of Sciences 7230 (2014) (full-scale study of all death sentences from 1973 through 2004 estimating that 4.1% of
those sentenced to death are actually innocent); Risinger,
Innocents Convicted: An Empirically Justified Factual
Wrongful Conviction Rate, 97 J. Crim. L. & C. 761 (2007)
(examination of DNA exonerations in death penalty cases
for murder-rapes between 1982 and 1989 suggesting an
analogous rate of between 3.3% and 5%).
8
GLOSSIP v. GROSS
BREYER, J., dissenting
Finally, if we expand our definition of “exoneration”
(which we limited to errors suggesting the defendant was
actually innocent) and thereby also categorize as “erroneous” instances in which courts failed to follow legally
required procedures, the numbers soar. Between 1973
and 1995, courts identified prejudicial errors in 68% of the
capital cases before them. Gelman, Liebman, West, &
Kiss, A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States, 1 J. Empirical L. Studies 209, 217 (2004). State courts on direct and
postconviction review overturned 47% of the sentences
they reviewed. Id., at 232. Federal courts, reviewing
capital cases in habeas corpus proceedings, found error in
40% of those cases. Ibid.
This research and these figures are likely controversial.
Full briefing would allow us to scrutinize them with more
care. But, at a minimum, they suggest a serious problem
of reliability. They suggest that there are too many instances in which courts sentence defendants to death
without complying with the necessary procedures; and
they suggest that, in a significant number of cases, the
death sentence is imposed on a person who did not commit
the crime. See Earley, A Pink Cadillac, An IQ of 63, and A
Fourteen-Year-Old from South Carolina: Why I Can No
Longer Support the Death Penalty, 49 U. Rich. L. Rev.
811, 813 (2015) (“I have come to the conclusion that the
death penalty is based on a false utopian premise. That
false premise is that we have had, do have, will have 100%
accuracy in death penalty convictions and executions”);
Earley, I Oversaw 36 Executions. Even Death Penalty
Supporters Can Push for Change, Guardian, May 12, 2014
(Earley presided over 36 executions as Virginia Attorney
General from 1998–2001); but see ante, at 2–3 (SCALIA, J.,
concurring) (apparently finding no special constitutional
problem arising from the fact that the execution of an
innocent person is irreversible). Unlike 40 years ago, we
Cite as: 576 U. S. ____ (2015)
9
BREYER, J., dissenting
now have plausible evidence of unreliability that (perhaps
due to DNA evidence) is stronger than the evidence we
had before. In sum, there is significantly more researchbased evidence today indicating that courts sentence to
death individuals who may well be actually innocent or
whose convictions (in the law’s view) do not warrant the
death penalty’s application.
II
“Cruel”—Arbitrariness
The arbitrary imposition of punishment is the antithesis
of the rule of law. For that reason, Justice Potter Stewart
(who supplied critical votes for the holdings in Furman v.
Georgia, 408 U. S. 238 (1972) (per curiam), and Gregg)
found the death penalty unconstitutional as administered
in 1972:
“These death sentences are cruel and unusual in the
same way that being struck by lightning is cruel and
unusual. For, of all the people convicted of [deatheligible crimes], many just as reprehensible as these,
the[se] petitioners are among a capriciously selected
random handful upon which the sentence of death has
in fact been imposed.” Furman, 408 U. S., at 309–310
(concurring opinion).
See also id., at 310 (“[T]he Eighth and Fourteenth
Amendments cannot tolerate the infliction of a sentence of
death under legal systems that permit this unique penalty
to be so wantonly and so freakishly imposed”); id., at 313
(White, J., concurring) (“[T]he death penalty is exacted
with great infrequency even for the most atrocious crimes
and . . . there is no meaningful basis for distinguishing the
few cases in which it is imposed from the many cases in
which it is not”).
When the death penalty was reinstated in 1976, this
Court acknowledged that the death penalty is (and would
10
GLOSSIP v. GROSS
BREYER, J., dissenting
be) unconstitutional if “inflicted in an arbitrary and capricious manner.” Gregg, 428 U. S., at 188 (joint opinion of
Stewart, Powell, and Stevens, JJ.); see also id., at 189
(“[W]here discretion is afforded a sentencing body on a
matter so grave as the determination of whether a human
life should be taken or spared, that discretion must be
suitably directed and limited so as to minimize the risk of
wholly arbitrary and capricious action”); Godfrey v. Georgia, 446 U. S. 420, 428 (1980) (plurality opinion) (similar).
The Court has consequently sought to make the application of the death penalty less arbitrary by restricting its
use to those whom Justice Souter called “ ‘the worst of the
worst.’ ” Kansas v. Marsh, 548 U. S., at 206 (dissenting
opinion); see also Roper v. Simmons, 543 U. S. 551, 568
(2005) (“Capital punishment must be limited to those
offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the
most deserving of execution” (internal quotation marks
omitted)); Kennedy v. Louisiana, 554 U. S. 407, 420 (2008)
(citing Roper, supra, at 568).
Despite the Gregg Court’s hope for fair administration of
the death penalty, 40 years of further experience make it
increasingly clear that the death penalty is imposed arbitrarily, i.e., without the “reasonable consistency” legally
necessary to reconcile its use with the Constitution’s
commands. Eddings v. Oklahoma, 455 U. S. 104, 112
(1982).
Thorough studies of death penalty sentences support
this conclusion. A recent study, for example, examined all
death penalty sentences imposed between 1973 and 2007
in Connecticut, a State that abolished the death penalty in
2012. Donohue, An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful
Racial, Gender, and Geographic Disparities? 11 J. Empirical Legal Studies 637 (2014). The study reviewed treatment of all homicide defendants. It found 205 instances in
Cite as: 576 U. S. ____ (2015)
11
BREYER, J., dissenting
which Connecticut law made the defendant eligible for a
death sentence. Id., at 641–643. Courts imposed a death
sentence in 12 of these 205 cases, of which 9 were sustained on appeal. Id., at 641. The study then measured
the “egregiousness” of the murderer’s conduct in those 9
cases, developing a system of metrics designed to do so.
Id., at 643–645. It then compared the egregiousness of the
conduct of the 9 defendants sentenced to death with the
egregiousness of the conduct of defendants in the remaining 196 cases (those in which the defendant, though found
guilty of a death-eligible offense, was ultimately not sentenced to death). Application of the studies’ metrics made
clear that only 1 of those 9 defendants was indeed the
“worst of the worst” (or was, at least, within the 15%
considered most “egregious”). The remaining eight were
not. Their behavior was no worse than the behavior of at
least 33 and as many as 170 other defendants (out of a
total pool of 205) who had not been sentenced to death.
Id., at 678–679.
Such studies indicate that the factors that most clearly
ought to affect application of the death penalty—namely,
comparative egregiousness of the crime—often do not.
Other studies show that circumstances that ought not to
affect application of the death penalty, such as race, gender, or geography, often do.
Numerous studies, for example, have concluded that
individuals accused of murdering white victims, as opposed to black or other minority victims, are more likely to
receive the death penalty. See GAO, Report to the Senate
and House Committees on the Judiciary: Death Penalty
Sentencing 5 (GAO/GGD–90–57, 1990) (82% of the 28
studies conducted between 1972 and 1990 found that race
of victim influences capital murder charge or death sentence, a “finding . . . remarkably consistent across data
sets, states, data collection methods, and analytic techniques”); Shatz & Dalton, Challenging the Death Penalty
12
GLOSSIP v. GROSS
BREYER, J., dissenting
with Statistics: Furman, McCleskey, and a Single County
Case Study, 34 Cardozo L. Rev. 1227, 1245–1251 (2013)
(same conclusion drawn from 20 plus studies conducted
between 1990 and 2013).
Fewer, but still many, studies have found that the gender of the defendant or the gender of the victim makes a
not-otherwise-warranted difference. Id., at 1251–1253
(citing many studies).
Geography also plays an important role in determining
who is sentenced to death. See id., at 1253–1256. And
that is not simply because some States permit the death
penalty while others do not. Rather within a death penalty State, the imposition of the death penalty heavily depends on the county in which a defendant is tried. Smith,
The Geography of the Death Penalty and its Ramifications, 92 B. U. L. Rev. 227, 231–232 (2012) (hereinafter
Smith); see also Donohue, supra, at 673 (“[T]he single
most important influence from 1973–2007 explaining
whether a death-eligible defendant [in Connecticut] would
be sentenced to death was whether the crime occurred in
Waterbury [County]”). Between 2004 and 2009, for example, just 29 counties (fewer than 1% of counties in the
country) accounted for approximately half of all death
sentences imposed nationwide. Smith 233. And in 2012,
just 59 counties (fewer than 2% of counties in the country)
accounted for all death sentences imposed nationwide.
DPIC, The 2% Death Penalty: How A Minority of Counties
Produce Most Death Cases At Enormous Costs to All 9
(Oct. 2013).
What accounts for this county-by-county disparity?
Some studies indicate that the disparity reflects the decisionmaking authority, the legal discretion, and ultimately
the power of the local prosecutor. See, e.g., Goelzhauser,
Prosecutorial Discretion Under Resource Constraints:
Budget Allocations and Local Death-Charging Decisions,
96 Judicature 161, 162–163 (2013); Barnes, Sloss, &
Cite as: 576 U. S. ____ (2015)
13
BREYER, J., dissenting
Thaman, Place Matters (Most): An Empirical Study of
Prosecutorial Decision-Making in Death-Eligible Cases, 51
Ariz. L. Rev. 305 (2009) (analyzing Missouri); Donohue,
An Empirical Evaluation of the Connecticut Death Penalty System, at 681 (Connecticut); Marceau, Kamin, &
Foglia, Death Eligibility in Colorado: Many Are Called,
Few Are Chosen, 84 U. Colo. L. Rev. 1069 (2013) (Colorado); Shatz & Dalton, supra, at 1260–1261 (Alameda
County).
Others suggest that the availability of resources for
defense counsel (or the lack thereof) helps explain geographical differences. See, e.g., Smith 258–265 (counties
with higher death-sentencing rates tend to have weaker
public defense programs); Liebman & Clarke, Minority
Practice, Majority’s Burden: The Death Penalty Today, 9
Ohio S. J. Crim. L. 255, 274 (2011) (hereinafter Liebman
& Clarke) (similar); see generally Bright, Counsel for the
Poor: The Death Sentence Not for the Worst Crime but for
the Worst Lawyer, 103 Yale L. J. 1835 (1994).
Still others indicate that the racial composition of and
distribution within a county plays an important role. See,
e.g., Levinson, Smith, & Young, Devaluing Death: An
Empirical Study of Implicit Racial Bias on Jury-Eligible
Citizens in Six Death Penalty States, 89 N. Y. U. L. Rev.
513, 533–536 (2014) (summarizing research on this point);
see also Shatz & Dalton, supra, at 1275 (describing research finding that death-sentencing rates were lowest in
counties with the highest nonwhite population); cf. Cohen
& Smith, The Racial Geography of the Federal Death
Penalty, 85 Wash. L. Rev. 425 (2010) (arguing that the
federal death penalty is sought disproportionately where
the federal district, from which the jury will be drawn, has
a dramatic racial difference from the county in which the
federal crime occurred).
Finally, some studies suggest that political pressures,
including pressures on judges who must stand for election,
14
GLOSSIP v. GROSS
BREYER, J., dissenting
can make a difference. See Woodward v. Alabama, 571
U. S. ___, ___ (2013) (SOTOMAYOR, J., dissenting from
denial of certiorari) (slip op., at 7) (noting that empirical
evidence suggests that, when Alabama judges reverse jury
recommendations, these “judges, who are elected in partisan proceedings, appear to have succumbed to electoral
pressures”); Harris v. Alabama, 513 U. S. 504, 519 (1995)
(Stevens, J., dissenting) (similar); Gelman, 1 J. Empirical
L. Studies, at 247 (elected state judges are less likely to
reverse flawed verdicts in capital cases in small towns
than in larger communities).
Thus, whether one looks at research indicating that
irrelevant or improper factors—such as race, gender, local
geography, and resources—do significantly determine who
receives the death penalty, or whether one looks at research indicating that proper factors—such as “egregiousness”—do not determine who receives the death penalty,
the legal conclusion must be the same: The research
strongly suggests that the death penalty is imposed
arbitrarily.
JUSTICE THOMAS catalogues the tragic details of various
capital cases, ante, at 6–10 (concurring opinion), but this
misses my point. Every murder is tragic, but unless we
return to the mandatory death penalty struck down in
Woodson, 428 U. S., at 304–305, the constitutionality of
capital punishment rests on its limited application to the
worst of the worst, supra, at 9–10. And this extensive
body of evidence suggests that it is not so limited.
Four decades ago, the Court believed it possible to interpret the Eighth Amendment in ways that would significantly limit the arbitrary application of the death sentence. See Gregg, 428 U. S., at 195 (joint opinion of
Stewart, Powell, and Stevens, JJ.) (“[T]he concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met”).
But that no longer seems likely.
Cite as: 576 U. S. ____ (2015)
15
BREYER, J., dissenting
The Constitution does not prohibit the use of prosecutorial discretion. Id., at 199, and n. 50 (joint opinion of
Stewart, Powell, and Stevens, JJ.); McCleskey v. Kemp,
481 U. S. 279, 307–308, and n. 28, 311–312 (1987). It has
not proved possible to increase capital defense funding
significantly. Smith, The Supreme Court and the Politics
of Death, 94 Va. L. Rev. 283, 355 (2008) (“Capital defenders are notoriously underfunded, particularly in states . . .
that lead the nation in executions”); American Bar Assn.
(ABA) Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases, Guideline 9.1,
Commentary (rev. ed. Feb. 2003), in 31 Hofstra L. Rev.
913, 985 (2003) (“[C]ompensation of attorneys for death
penalty representation remains notoriously inadequate”).
And courts cannot easily inquire into judicial motivation.
See, e.g., Harris, supra.
Moreover, racial and gender biases may, unfortunately,
reflect deeply rooted community biases (conscious or unconscious), which, despite their legal irrelevance, may
affect a jury’s evaluation of mitigating evidence, see
Callins v. Collins, 510 U. S. 1141, 1153 (1994) (Blackmun,
J., dissenting from denial of certiorari) (“Perhaps it should
not be surprising that the biases and prejudices that infect
society generally would influence the determination of
who is sentenced to death”). Nevertheless, it remains the
jury’s task to make the individualized assessment of
whether the defendant’s mitigation evidence entitles him
to mercy. See, e.g., Penry v. Lynaugh, 492 U. S. 302, 319
(1989); Lockett v. Ohio, 438 U. S. 586, 604–605 (1978)
(opinion of Burger, C. J.); Woodson, 428 U. S., at 304–305
(plurality opinion).
Finally, since this Court held that comparative proportionality review is not constitutionally required, Pulley v.
Harris, 465 U. S. 37 (1984), it seems unlikely that appeals
can prevent the arbitrariness I have described. See
Kaufman-Osborn, Capital Punishment, Proportionality
16
GLOSSIP v. GROSS
BREYER, J., dissenting
Review, and Claims of Fairness (with Lessons from Washington State), 79 Wash. L. Rev. 775, 791–792 (2004) (after
Pulley, many States repealed their statutes requiring
comparative proportionality review, and most state high
courts “reduced proportionality review to a perfunctory
exercise” (internal quotation marks omitted)).
The studies bear out my own view, reached after considering thousands of death penalty cases and last-minute
petitions over the course of more than 20 years. I see
discrepancies for which I can find no rational explanations. Cf. Godfrey, 446 U. S., at 433 (plurality opinion)
(“There is no principled way to distinguish this case, in
which the death penalty was imposed, from the many
cases in which it was not”). Why does one defendant who
committed a single-victim murder receive the death penalty (due to aggravators of a prior felony conviction and an
after-the-fact robbery), while another defendant does not,
despite having kidnapped, raped, and murdered a young
mother while leaving her infant baby to die at the scene of
the crime. Compare State v. Badgett, 361 N. C. 234, 644
S. E. 2d 206 (2007), and Pet. for Cert. in Badgett v. North
Carolina, O. T. 2006, No. 07–6156, with Charbonneau,
Andre Edwards Sentenced to Life in Prison for 2001 Murder, WRAL, Mar. 26, 2004, online at http://www.wral.
com/news/local/story/109648. Why does one defendant who
committed a single-victim murder receive the death penalty (due to aggravators of a prior felony conviction and
acting recklessly with a gun), while another defendant
does not, despite having committed a “triple murder” by
killing a young man and his pregnant wife? Compare
Commonwealth v. Boxley, 596 Pa. 620, 948 A. 2d 742
(2008), and Pet. for Cert., O. T. 2008, No. 08–6172, with
Shea, Judge Gives Consecutive Life Sentences for Triple
Murder, Philadelphia Inquirer, June 29, 2004, p. B5. For
that matter, why does one defendant who participated in a
single-victim murder-for-hire scheme (plus an after-the-
Cite as: 576 U. S. ____ (2015)
17
BREYER, J., dissenting
fact robbery) receive the death penalty, while another
defendant does not, despite having stabbed his wife 60
times and killed his 6-year-old daughter and 3-year-old
son while they slept? See Donohue, Capital Punishment
in Connecticut, 1973–2007: A Comprehensive Evaluation
from 4686 Murders to One Execution, pp. 128–134 (2013),
online at http://works.bepress.com/john_donohue/87. In
each instance, the sentences compared were imposed in
the same State at about the same time.
The question raised by these examples (and the many
more I could give but do not), as well as by the research to
which I have referred, is the same question Justice Stewart, Justice Powell, and others raised over the course of
several decades: The imposition and implementation of the
death penalty seems capricious, random, indeed, arbitrary. From a defendant’s perspective, to receive that
sentence, and certainly to find it implemented, is the
equivalent of being struck by lightning. How then can we
reconcile the death penalty with the demands of a Constitution that first and foremost insists upon a rule of law?
III
“Cruel”—Excessive Delays
The problems of reliability and unfairness almost inevitably lead to a third independent constitutional problem:
excessively long periods of time that individuals typically
spend on death row, alive but under sentence of death.
That is to say, delay is in part a problem that the Constitution’s own demands create. Given the special need for
reliability and fairness in death penalty cases, the Eighth
Amendment does, and must, apply to the death penalty
“with special force.” Roper, 543 U. S., at 568. Those who
face “that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution.” Hall v. Florida, 572 U. S. ___, ___ (2014) (slip op., at
22). At the same time, the Constitution insists that “every
18
GLOSSIP v. GROSS
BREYER, J., dissenting
safeguard” be “observed” when “a defendant’s life is at
stake.” Gregg, 428 U. S., at 187 (joint opinion of Stewart,
Powell, and Stevens, JJ.); Furman, 408 U. S., at 306
(Stewart, J., concurring) (death “differs from all other
forms of criminal punishment, not in degree but in kind”);
Woodson, supra, at 305 (plurality opinion) (“Death, in its
finality, differs more from life imprisonment than a 100year prison term differs from one of only a year or two”).
These procedural necessities take time to implement.
And, unless we abandon the procedural requirements that
assure fairness and reliability, we are forced to confront
the problem of increasingly lengthy delays in capital cases.
Ultimately, though these legal causes may help to explain,
they do not mitigate the harms caused by delay itself.
A
Consider first the statistics. In 2014, 35 individuals
were executed. Those executions occurred, on average,
nearly 18 years after a court initially pronounced its
sentence of death. DPIC, Execution List 2014, online
at http: / / www.deathpenaltyinfo.org / execution - list-2014
(showing an average delay of 17 years, 7 months). In some
death penalty States, the average delay is longer. In
an oral argument last year, for example, the State admitted that the last 10 prisoners executed in Florida had
spent an average of nearly 25 years on death row before
execution. Tr. of Oral Arg. in Hall v. Florida, O. T. 2013,
No. 12–10882, p. 46.
The length of the average delay has increased dramatically over the years. In 1960, the average delay between
sentencing and execution was two years. See Aarons, Can
Inordinate Delay Between a Death Sentence and Execution Constitute Cruel and Unusual Punishment? 29 Seton
Hall L. Rev. 147, 181 (1998). Ten years ago (in 2004) the
average delay was about 11 years. See Dept. of Justice,
Bureau of Justice Statistics (BJS), T. Snell, Capital Pun-
Cite as: 576 U. S. ____ (2015)
19
BREYER, J., dissenting
ishment, 2013—Statistical Tables 14 (Table 10) (rev. Dec.
2014) (hereinafter BJS 2013 Stats). By last year the
average had risen to about 18 years. DPIC, Execution List
2014, supra. Nearly half of the 3,000 inmates now on
death row have been there for more than 15 years. And,
at present execution rates, it would take more than 75
years to carry out those 3,000 death sentences; thus, the
average person on death row would spend an additional
37.5 years there before being executed. BJS 2013 Stats, at
14, 18 (Tables 11 and 15).
I cannot find any reasons to believe the trend will soon
be reversed.
B
These lengthy delays create two special constitutional
difficulties. See Johnson v. Bredesen, 558 U. S. 1067, 1069
(2009) (Stevens, J., statement respecting denial of certiorari). First, a lengthy delay in and of itself is especially
cruel because it “subjects death row inmates to decades of
especially severe, dehumanizing conditions of confinement.” Ibid.; Gomez v. Fierro, 519 U. S. 918 (1996) (Stevens, J., dissenting) (excessive delays from sentencing to
execution can themselves “constitute cruel and unusual
punishment prohibited by the Eighth Amendment”); see
also Lackey v. Texas, 514 U. S. 1045 (1995) (memorandum
of Stevens, J., respecting denial of certiorari); Knight v.
Florida, 528 U. S. 990, 993 (1999) (BREYER, J., dissenting
from denial of certiorari). Second, lengthy delay undermines the death penalty’s penological rationale. Johnson,
supra, at 1069; Thompson v. McNeil, 556 U. S. 1114,
1115 (2009) (statement of Stevens, J., respecting denial of
certiorari).
1
Turning to the first constitutional difficulty, nearly all
death penalty States keep death row inmates in isolation
20
GLOSSIP v. GROSS
BREYER, J., dissenting
for 22 or more hours per day. American Civil Liberties
Union (ACLU), A Death Before Dying: Solitary Confinement on Death Row 5 (July 2013) (ACLU Report). This
occurs even though the ABA has suggested that death row
inmates be housed in conditions similar to the general
population, and the United Nations Special Rapporteur on
Torture has called for a global ban on solitary confinement
longer than 15 days. See id., at 2, 4; ABA Standards for
Criminal Justice: Treatment of Prisoners 6 (3d ed. 2011).
And it is well documented that such prolonged solitary
confinement produces numerous deleterious harms. See,
e.g., Haney, Mental Health Issues in Long-Term Solitary
and “Supermax” Confinement, 49 Crime & Delinquency
124, 130 (2003) (cataloguing studies finding that solitary
confinement can cause prisoners to experience “anxiety,
panic, rage, loss of control, paranoia, hallucinations, and
self-mutilations,” among many other symptoms); Grassian,
Psychiatric Effects of Solitary Confinement, 22 Wash
U. J. L. & Policy 325, 331 (2006) (“[E]ven a few days of
solitary confinement will predictably shift the [brain’s]
electroencephalogram (EEG) pattern toward an abnormal
pattern characteristic of stupor and delirium”); accord, In
re Medley, 134 U. S. 160, 167–168 (1890); see also Davis v.
Ayala, ante, at 1–4 (KENNEDY, J., concurring).
The dehumanizing effect of solitary confinement is
aggravated by uncertainty as to whether a death sentence
will in fact be carried out. In 1890, this Court recognized
that, “when a prisoner sentenced by a court to death is
confined in the penitentiary awaiting the execution of the
sentence, one of the most horrible feelings to which he can
be subjected during that time is the uncertainty during
the whole of it.” Medley, supra, at 172. The Court was
there describing a delay of a mere four weeks. In the past
century and a quarter, little has changed in this respect—
except for duration. Today we must describe delays measured, not in weeks, but in decades. Supra, at 18–19.
Cite as: 576 U. S. ____ (2015)
21
BREYER, J., dissenting
Moreover, we must consider death warrants that have
been issued and revoked, not once, but repeatedly. See,
e.g., Pet. for Cert. in Suárez Medina v. Texas, O. T. 2001,
No. 02–5752, pp. 35–36 (filed Aug. 13, 2002) (“On fourteen
separate occasions since Mr. Suárez Medina’s death sentence was imposed, he has been informed of the time, date,
and manner of his death. At least eleven times, he
has been asked to describe the disposal of his bodily
remains”); Lithwick, Cruel but not Unusual, Slate,
Apr. 1, 2011, online at http://www.slate.com/articles/
news_and_politics/jurisprudence/2011/04/cruel_but_not_
unusual.html (John Thompson had seven death warrants
signed before he was exonerated); see also, e.g., WFMZ-TV
69 News, Michael John Parrish’s Execution Warrant
Signed by Governor Corbett (Aug. 18, 2014), online at
http: / / www.wfmz.com /news/Regional-Poconos-Coal / Local/
michael-john-parrishs-execution-warrant-signed-by-governorcorbett/27595356 (former Pennsylvania Governor signed
36 death warrants in his first 3.5 years in office even
though Pennsylvania has not carried out an execution
since 1999).
Several inmates have come within hours or days of
execution before later being exonerated. Willie Manning
was four hours from his scheduled execution before the
Mississippi Supreme Court stayed the execution. See
Robertson, With Hours to Go, Execution is Postponed,
N. Y. Times, Apr. 8, 2015, p. A17. Two years later, Manning was exonerated after the evidence against him, including flawed testimony from an FBI hair examiner, was
severely undermined. Nave, Why Does the State Still
Want to Kill Willie Jerome Manning? Jackson Free Press,
Apr. 29, 2015. Nor is Manning an outlier case. See, e.g.,
Martin, Randall Adams, 61, Dies; Freed With Help of
Film, N. Y. Times, June 26, 2011, p. 24 (Randall Adams:
stayed by this Court three days before execution; later
exonerated); N. Davies, White Lies 231, 292, 298, 399
22
GLOSSIP v. GROSS
BREYER, J., dissenting
(1991) (Clarence Lee Brandley: execution stayed twice,
once 6 days and once 10 days before; later exonerated); M.
Edds, An Expendable Man 93 (2003) (Earl Washington,
Jr.: stayed 9 days before execution; later exonerated).
Furthermore, given the negative effects of confinement
and uncertainty, it is not surprising that many inmates
volunteer to be executed, abandoning further appeals.
See, e.g., ACLU Report 8; Rountree, Volunteers for Execution: Directions for Further Research into Grief, Culpability, and Legal Structures, 82 UMKC L. Rev. 295 (2014)
(11% of those executed have dropped appeals and volunteered); ACLU Report 3 (account of “ ‘guys who dropped
their appeals because of the intolerable conditions’ ”).
Indeed, one death row inmate, who was later exonerated,
still said he would have preferred to die rather than to
spend years on death row pursuing his exoneration.
Strafer, Volunteering for Execution: Competency, Voluntariness and the Propriety of Third Party Intervention, 74
J. Crim. L. & C. 860, 869 (1983). Nor is it surprising that
many inmates consider, or commit, suicide. Id., at 872, n.
44 (35% of those confined on death row in Florida attempted suicide).
Others have written at great length about the constitutional problems that delays create, and, rather than repeat their facts, arguments, and conclusions, I simply
refer to some of their writings. See, e.g., Johnson, 558
U. S., at 1069 (statement of Stevens, J.) (delay “subjects
death row inmates to decades of especially severe, dehumanizing conditions of confinement”); Furman, 408 U. S.,
at 288 (Brennan, J., concurring) (“long wait between the
imposition of sentence and the actual infliction of death” is
“inevitable” and often “exacts a frightful toll”); Solesbee v.
Balkcom, 339 U. S. 9, 14 (1950) (Frankfurter, J., dissenting) (“In the history of murder, the onset of insanity while
awaiting execution of a death sentence is not a rare phenomenon”); People v. Anderson, 6 Cal. 3d 628, 649, 493 P.
Cite as: 576 U. S. ____ (2015)
23
BREYER, J., dissenting
2d 880, 894 (1972) (collecting sources) (“[C]ruelty of capital
punishment lies not only in the execution itself and the
pain incident thereto, but also in the dehumanizing effects
of the lengthy imprisonment prior to execution during
which the judicial and administrative procedures essential
to due process of law are carried out” (footnote omitted));
District Attorney for Suffolk Dist. v. Watson, 381 Mass.
648, 673, 411 N. E. 2d 1274, 1287 (1980) (Braucher, J.,
concurring) (death penalty unconstitutional under State
Constitution in part because “[it] will be carried out only
after agonizing months and years of uncertainty”); see also
Riley v. Attorney General of Jamaica, [1983] 1 A. C. 719,
734–735 (P. C. 1982) (Lord Scarman, joined by Lord
Brightman, dissenting) (“execution after inordinate delay”
would infringe prohibition against “cruel and unusual
punishments” in §10 of the “Bill of Rights of 1689,” the
precursor to our Eighth Amendment); Pratt v. Attorney
Gen. of Jamaica, [1994] 2 A. C. 1, 4 (P. C. 1993); id., at 32–
33 (collecting cases finding inordinate delays unconstitutional or the equivalent); State v. Makwanyane 1995 (3)
SA391 (CC) (S. Afr.); Catholic Commission for Justice &
Peace in Zimbabwe v. Attorney-General, [1993] 1 Zim.
L. R. 242, 282 (inordinate delays unconstitutional); Soering v. United Kingdom, 11 Eur. Ct. H. R. (ser. A), p. 439
(1989) (extradition of murder suspect to United States
would violate the European Convention on Human Rights
in light of risk of delay before execution); United States v.
Burns, [2001] 1 S. C. R. 283, 353, ¶123 (similar).
2
The second constitutional difficulty resulting from
lengthy delays is that those delays undermine the death
penalty’s penological rationale, perhaps irreparably so.
The rationale for capital punishment, as for any punishment, classically rests upon society’s need to secure deterrence, incapacitation, retribution, or rehabilitation. Capi-
24
GLOSSIP v. GROSS
BREYER, J., dissenting
tal punishment by definition does not rehabilitate. It
does, of course, incapacitate the offender. But the major
alternative to capital punishment—namely, life in prison
without possibility of parole—also incapacitates. See Ring
v. Arizona, 536 U. S. 584, 615 (2002) (BREYER, J., concurring in judgment).
Thus, as the Court has recognized, the death penalty’s
penological rationale in fact rests almost exclusively upon
a belief in its tendency to deter and upon its ability to
satisfy a community’s interest in retribution. See, e.g.,
Gregg, 428 U. S., at 183 (joint opinion of Stewart, Powell,
and Stevens, JJ.). Many studies have examined the death
penalty’s deterrent effect; some have found such an effect,
whereas others have found a lack of evidence that it deters
crime. Compare ante, at 5 (SCALIA, J., concurring) (collecting studies finding deterrent effect), with e.g., Sorensen,
Wrinkle, Brewer, & Marquart, Capital Punishment and
Deterrence: Examining the Effect of Executions on Murder
in Texas, 45 Crime & Delinquency 481 (1999) (no evidence
of a deterrent effect); Bonner & Fessenden, Absence of
Executions: A Special Report, States With No Death Penalty Share Lower Homicide Rates, N. Y. Times, Sept. 22,
2000, p. A1 (from 1980–2000, homicide rate in deathpenalty States was 48% to 101% higher than in non-deathpenalty States); Radelet & Akers, Deterrence and the
Death Penalty: The Views of the Experts, 87 J. Crim. L. &
C. 1, 8 (1996) (over 80% of criminologists believe existing
research fails to support deterrence justification); Donohue
& Wolfers, Uses and Abuses of Empirical Evidence in the
Death Penalty Debate, 58 Stan. L. Rev. 791, 794 (2005)
(evaluating existing statistical evidence and concluding
that there is “profound uncertainty” about the existence of
a deterrent effect).
Recently, the National Research Council (whose members are drawn from the councils of the National Academy
of Sciences, the National Academy of Engineering, and the
Cite as: 576 U. S. ____ (2015)
25
BREYER, J., dissenting
Institute of Medicine) reviewed 30 years of empirical
evidence and concluded that it was insufficient to establish a deterrent effect and thus should “not be used to
inform” discussion about the deterrent value of the death
penalty. National Research Council, Deterrence and the
Death Penalty 2 (D. Nagin & J. Pepper eds. 2012); accord,
Baze v. Rees, 553 U. S. 35, 79 (2008) (Stevens, J., concurring in judgment) (“Despite 30 years of empirical research in the area, there remains no reliable statistical evi-
dence that capital punishment in fact deters potential
offenders”).
I recognize that a “lack of evidence” for a proposition
does not prove the contrary. See Ring, supra, at 615 (one
might believe the studies “inconclusive”). But suppose
that we add to these studies the fact that, today, very few
of those sentenced to death are actually executed, and that
even those executions occur, on average, after nearly two
decades on death row. DPIC, Execution List 2014, supra.
Then, does it still seem likely that the death penalty has a
significant deterrent effect?
Consider, for example, what actually happened to the
183 inmates sentenced to death in 1978. As of 2013 (35
years later), 38 (or 21% of them) had been executed; 132
(or 72%) had had their convictions or sentences overturned
or commuted; and 7 (or 4%) had died of other (likely natural) causes. Six (or 3%) remained on death row. BJS 2013
Stats, at 19 (Table 16).
The example illustrates a general trend. Of the 8,466
inmates under a death sentence at some point between
1973 and 2013, 16% were executed, 42% had their convictions or sentences overturned or commuted, and 6% died
by other causes; the remainder (35%) are still on death
row. Id., at 20 (Table 17); see also Baumgartner & Dietrich, Most Death Penalty Sentences Are Overturned:
Here’s Why That Matters, Washington Post Blog, Monkey
Cage, Mar. 17, 2015 (similar).
26
GLOSSIP v. GROSS
BREYER, J., dissenting
Thus an offender who is sentenced to death is two or
three times more likely to find his sentence overturned or
commuted than to be executed; and he has a good chance
of dying from natural causes before any execution (or
exoneration) can take place. In a word, executions are
rare. And an individual contemplating a crime but evaluating the potential punishment would know that, in any
event, he faces a potential sentence of life without parole.
These facts, when recurring, must have some offsetting
effect on a potential perpetrator’s fear of a death penalty.
And, even if that effect is no more than slight, it makes it
difficult to believe (given the studies of deterrence cited
earlier) that such a rare event significantly deters horrendous crimes. See Furman, 408 U. S., at 311–312 (White,
J., concurring) (It cannot “be said with confidence that
society’s need for specific deterrence justifies death for so
few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient”).
But what about retribution? Retribution is a valid
penological goal. I recognize that surviving relatives of
victims of a horrendous crime, or perhaps the community
itself, may find vindication in an execution. And a community that favors the death penalty has an understandable interest in representing their voices. But see A. Sarat,
Mercy on Trial: What It Means To Stop an Execution 130
(2005) (Illinois Governor George Ryan explained his decision to commute all death sentences on the ground that it
was “cruel and unusual” for “family members to go
through this . . . legal limbo for [20] years”).
The relevant question here, however, is whether a
“community’s sense of retribution” can often find vindication in “a death that comes,” if at all, “only several decades
after the crime was committed.” Valle v. Florida, 564
U. S. ___, ___ (2011) (BREYER, J., dissenting from denial of
stay) (slip op., at 3). By then the community is a different
group of people. The offenders and the victims’ families
Cite as: 576 U. S. ____ (2015)
27
BREYER, J., dissenting
have grown far older. Feelings of outrage may have subsided. The offender may have found himself a changed
human being. And sometimes repentance and even forgiveness can restore meaning to lives once ruined. At the
same time, the community and victims’ families will know
that, even without a further death, the offender will serve
decades in prison under a sentence of life without parole.
I recognize, of course, that this may not always be the
case, and that sometimes the community believes that an
execution could provide closure. Nevertheless, the delays
and low probability of execution must play some role in
any calculation that leads a community to insist on death
as retribution. As I have already suggested, they may well
attenuate the community’s interest in retribution to the
point where it cannot by itself amount to a significant
justification for the death penalty. Id., at ___ (slip op., at
3). In any event, I believe that whatever interest in retribution might be served by the death penalty as currently
administered, that interest can be served almost as well
by a sentence of life in prison without parole (a sentence
that every State now permits, see ACLU, A Living Death:
Life Without Parole for Nonviolent Offenses 11, and n. 10
(2013)).
Finally, the fact of lengthy delays undermines any effort
to justify the death penalty in terms of its prevalence
when the Founders wrote the Eighth Amendment. When
the Founders wrote the Constitution, there were no 20- or
30-year delays. Execution took place soon after sentencing. See P. Mackey, Hanging in the Balance: The AntiCapital Punishment Movement in New York State, 1776–
1861, p. 17 (1982); T. Jefferson, A Bill for Proportioning
Crimes and Punishments (1779), reprinted in The Complete Jefferson 90, 95 (S. Padover ed. 1943); 2 Papers of
John Marshall 207–209 (C. Cullen & H. Johnson eds.
1977) (describing petition for commutation based in part
on 5-month delay); Pratt v. Attorney Gen. of Jamaica,
28
GLOSSIP v. GROSS
BREYER, J., dissenting
[1994] 2 A. C., at 17 (same in United Kingdom) (collecting
cases). And, for reasons I shall describe, infra, at 29–33,
we cannot return to the quick executions in the founding
era.
3
The upshot is that lengthy delays both aggravate the
cruelty of the death penalty and undermine its jurisprudential rationale. And this Court has said that, if the
death penalty does not fulfill the goals of deterrence or
retribution, “it is nothing more than the purposeless and
needless imposition of pain and suffering and hence an
unconstitutional punishment.” Atkins, 536 U. S., at 319
(quoting Enmund v. Florida, 458 U. S. 782, 798 (1982);
internal quotation marks omitted); see also Gregg, 428
U. S., at 183 (joint opinion of Stewart, Powell, and Stevens, JJ.) (“sanction imposed cannot be so totally without
penological justification that it results in the gratuitous
infliction of suffering”); Furman, supra, at 312 (White, J.,
concurring) (a “penalty with such negligible returns to the
State would be patently excessive and cruel and unusual
punishment violative of the Eighth Amendment”); Thompson, 556 U. S., at 1115 (statement of Stevens, J., respecting denial of certiorari) (similar).
Indeed, Justice Lewis Powell (who provided a crucial
vote in Gregg) came to much the same conclusion, albeit
after his retirement from this Court. Justice Powell had
come to the Court convinced that the Federal Constitution
did not outlaw the death penalty but rather left the matter
up to individual States to determine. Furman, supra, at
431–432 (Powell, J., dissenting); see also J. Jeffries, Justice Lewis F. Powell, Jr., p. 409 (2001) (describing Powell,
during his time on the Court, as a “fervent partisan” of
“the constitutionality of capital punishment”).
Soon after Justice Powell’s retirement, Chief Justice
Rehnquist appointed him to chair a committee addressing
Cite as: 576 U. S. ____ (2015)
29
BREYER, J., dissenting
concerns about delays in capital cases, the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases (Committee). The Committee presented a report to Congress,
and Justice Powell testified that “[d]elay robs the penalty
of much of its deterrent value.” Habeas Corpus Reform,
Hearings before the Senate Committee on the Judiciary,
100th Cong., 1st and 2d Sess., 35 (1989 and 1990). Justice
Powell, according to his official biographer, ultimately
concluded that capital punishment:
“ ‘serves no useful purpose.’ The United States was
‘unique among the industrialized nations of the West
in maintaining the death penalty,’ and it was enforced
so rarely that it could not deter. More important, the
haggling and delay and seemingly endless litigation in
every capital case brought the law itself into disrepute.” Jeffries, supra, at 452.
In short, the problem of excessive delays led Justice Powell, at least in part, to conclude that the death penalty was
unconstitutional.
As I have said, today delays are much worse. When
Chief Justice Rehnquist appointed Justice Powell to the
Committee, the average delay between sentencing and
execution was 7 years and 11 months, compared with 17
years and 7 months today. Compare BJS, L. Greenfeld,
Capital Punishment, 1990, p. 11 (Table 12) (Sept. 1991)
with supra, at 18–19.
C
One might ask, why can Congress or the States not deal
directly with the delay problem? Why can they not take
steps to shorten the time between sentence and execution,
and thereby mitigate the problems just raised? The answer is that shortening delay is much more difficult than
one might think. And that is in part because efforts to do
so risk causing procedural harms that also undermine the
30
GLOSSIP v. GROSS
BREYER, J., dissenting
death penalty’s constitutionality.
For one thing, delays have helped to make application of
the death penalty more reliable. Recall the case of Henry
Lee McCollum, whom DNA evidence exonerated 30 years
after his conviction. Katz & Eckholm, N. Y. Times, at A1.
If McCollum had been executed earlier, he would not have
lived to see the day when DNA evidence exonerated him
and implicated another man; that man is already serving
a life sentence for a rape and murder that he committed
just a few weeks after the murder McCollum was convicted
of. Ibid. In fact, this Court had earlier denied review
of McCollum’s claim over the public dissent of only one
Justice. McCollum v. North Carolina, 512 U. S. 1254
(1994). And yet a full 20 years after the Court denied
review, McCollum was exonerated by DNA evidence.
There are a significant number of similar cases, some of
which I have discussed earlier. See also DPIC Innocence
List, supra (Nathson Fields, 23 years; Paul House, 23
years; Nicholas Yarris, 21 years; Anthony Graves, 16
years; Damon Thibodeaux, 15 years; Ricky Jackson, Wiley
Bridgeman, and Kwame Ajamu, all exonerated for the
same crime 39 years after their convictions).
In addition to those who are exonerated on the ground
that they are innocent, there are other individuals whose
sentences or convictions have been overturned for other
reasons (as discussed above, state and federal courts found
error in 68% of the capital cases they reviewed between
1973 and 1995). See Part I, supra. In many of these
cases, a court will have found that the individual did not
merit the death penalty in a special sense—namely, he
failed to receive all the procedural protections that the law
requires for the death penalty’s application. By eliminating some of these protections, one likely could reduce
delay.
But which protections should we eliminate?
Should we eliminate the trial-related protections we have
established for capital defendants: that they be able to
Cite as: 576 U. S. ____ (2015)
31
BREYER, J., dissenting
present to the sentencing judge or jury all mitigating
circumstances, Lockett v. Ohio, 438 U. S. 586; that the
State provide guidance adequate to reserve the application
of the death penalty to particularly serious murders,
Gregg, 428 U. S. 153; that the State provide adequate
counsel and, where warranted, adequate expert assistance, Powell v. Alabama, 287 U. S. 45 (1932); Wiggins v.
Smith, 539 U. S. 510 (2003); Ake v. Oklahoma, 470 U. S.
68 (1985); or that a jury must find the aggravating factors
necessary to impose the death penalty, Ring, 536 U. S.
584; see also id., at 614 (BREYER, J., concurring in judgment)? Should we no longer ensure that the State does
not execute those who are seriously intellectually disabled,
Atkins, 536 U. S. 304? Should we eliminate the requirement that the manner of execution be constitutional, Baze,
553 U. S. 35, or the requirement that the inmate be mentally competent at the time of his execution, Ford v.
Wainwright, 477 U. S. 399 (1986)? Or should we get rid of
the criminal protections that all criminal defendants
receive—for instance, that defendants claiming violation
of constitutional guarantees (say “due process of law”) may
seek a writ of habeas corpus in federal courts? See, e.g.,
O’Neal v. McAninch, 513 U. S. 432 (1995). My answer to
these questions is “surely not.” But see ante, at 5–7
(SCALIA, J., concurring).
One might, of course, argue that courts, particularly
federal courts providing additional layers of review, apply
these and other requirements too strictly, and that causes
delay. But, it is difficult for judges, as it would be difficult
for anyone, not to apply legal requirements punctiliously
when the consequence of failing to do so may well be
death, particularly the death of an innocent person. See,
e.g., Zant v. Stephens, 462 U. S. 862, 885 (1983)
(“[A]lthough not every imperfection in the deliberative
process is sufficient, even in a capital case, to set aside a
state-court judgment, the severity of the sentence man-
32
GLOSSIP v. GROSS
BREYER, J., dissenting
dates careful scrutiny in the review of any colorable claim
of error”); Kyles v. Whitley, 514 U. S. 419, 422 (1995)
(“[O]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital
case” (internal quotation marks omitted)); Thompson, 556
U. S., at 1116 (statement of Stevens, J.) (“Judicial process
takes time, but the error rate in capital cases illustrates
its necessity”).
Moreover, review by courts at every level helps to ensure reliability; if this Court had not ordered that Anthony
Ray Hinton receive further hearings in state court, see
Hinton v. Alabama, 571 U. S. ___, he may well have been
executed rather than exonerated. In my own view, our
legal system’s complexity, our federal system with its
separate state and federal courts, our constitutional guarantees, our commitment to fair procedure, and, above all,
a special need for reliability and fairness in capital cases,
combine to make significant procedural “reform” unlikely
in practice to reduce delays to an acceptable level.
And that fact creates a dilemma: A death penalty system that seeks procedural fairness and reliability brings
with it delays that severely aggravate the cruelty of capital punishment and significantly undermine the rationale
for imposing a sentence of death in the first place. See
Knight, 528 U. S., at 998 (BREYER, J., dissenting from
denial of certiorari) (one of the primary causes of the delay
is the States’ “failure to apply constitutionally sufficient
procedures at the time of initial [conviction or] sentencing”). But a death penalty system that minimizes delays
would undermine the legal system’s efforts to secure reliability and procedural fairness.
In this world, or at least in this Nation, we can have a
death penalty that at least arguably serves legitimate
penological purposes or we can have a procedural system
that at least arguably seeks reliability and fairness in the
death penalty’s application. We cannot have both. And
Cite as: 576 U. S. ____ (2015)
33
BREYER, J., dissenting
that simple fact, demonstrated convincingly over the past
40 years, strongly supports the claim that the death penalty violates the Eighth Amendment. A death penalty
system that is unreliable or procedurally unfair would
violate the Eighth Amendment. Woodson, 428 U. S., at
305 (plurality opinion); Hall, 572 U. S., at ___ (slip op., at
22); Roper, 543 U. S., at 568. And so would a system that,
if reliable and fair in its application of the death penalty,
would serve no legitimate penological purpose. Furman,
408 U. S., at 312 (White, J., concurring); Gregg, supra, at
183 (joint opinion of Stewart, Powell, and Stevens, JJ.);
Atkins, supra, at 319.
IV
“Unusual”—Decline in Use of the Death Penalty
The Eighth Amendment forbids punishments that are
cruel and unusual. Last year, in 2014, only seven States
carried out an execution. Perhaps more importantly, in
the last two decades, the imposition and implementation
of the death penalty have increasingly become unusual. I
can illustrate the significant decline in the use of the
death penalty in several ways.
An appropriate starting point concerns the trajectory of
the number of annual death sentences nationwide, from
the 1970’s to present day. In 1977—just after the Supreme Court made clear that, by modifying their legislation, States could reinstate the death penalty—137 people
were sentenced to death. BJS 2013 Stats, at 19 (Table 16).
Many States having revised their death penalty laws to
meet Furman’s requirements, the number of death sentences then increased. Between 1986 and 1999, 286 persons on average were sentenced to death each year. BJS
2013 Stats, at 14, 19 (Tables 11 and 16). But, approximately 15 years ago, the numbers began to decline, and
they have declined rapidly ever since. See Appendix A,
infra (showing sentences from 1977–2014). In 1999, 279
34
GLOSSIP v. GROSS
BREYER, J., dissenting
persons were sentenced to death. BJS 2013 Stats, at 19
(Table 16). Last year, just 73 persons were sentenced to
death. DPIC, The Death Penalty in 2014: Year End Report 1 (2015).
That trend, a significant decline in the last 15 years,
also holds true with respect to the number of annual
executions. See Appendix B, infra (showing executions
from 1977–2014). In 1999, 98 people were executed. BJS,
Data Collection: National Prisoner Statistics Program
(BJS Prisoner Statistics) (available in Clerk of Court’s
case file). Last year, that number was only 35. DPIC, The
Death Penalty in 2014, supra, at 1.
Next, one can consider state-level data. Often when
deciding whether a punishment practice is, constitutionally
speaking, “unusual,” this Court has looked to the number of States engaging in that practice. Atkins, 536 U. S.,
at 313–316; Roper, supra, at 564–566. In this respect, the
number of active death penalty States has fallen dramatically. In 1972, when the Court decided Furman, the death
penalty was lawful in 41 States. Nine States had abolished it. E. Mandery, A Wild Justice: The Death and
Resurrection of Capital Punishment in America 145
(2013). As of today, 19 States have abolished the death
penalty (along with the District of Columbia), although
some did so prospectively only. See DPIC, States With
and Without the Death Penalty, online at http://www.
deathpenaltyinfo.org/states-and-without-death-penalty. In
11 other States that maintain the death penalty on the
books, no execution has taken place for more than eight
years: Arkansas (last execution 2005); California (2006);
Colorado (1997); Kansas (no executions since the death
penalty was reinstated in 1976); Montana (2006); Nevada
(2006); New Hampshire (no executions since the death
penalty was reinstated in 1976); North Carolina (2006);
Oregon (1997); Pennsylvania (1999); and Wyoming (1992).
DPIC, Executions by State and Year, online at http://www.
Cite as: 576 U. S. ____ (2015)
35
BREYER, J., dissenting
deathpenaltyinfo.org/node/5741.
Accordingly, 30 States have either formally abolished
the death penalty or have not conducted an execution in
more than eight years. Of the 20 States that have conducted at least one execution in the past eight years, 9
have conducted fewer than five in that time, making an
execution in those States a fairly rare event. BJS Prisoner
Statistics (Delaware, Idaho, Indiana, Kentucky, Louisiana,
South Dakota, Tennessee, Utah, Washington).
That
leaves 11 States in which it is fair to say that capital
punishment is not “unusual.” And just three of those
States (Texas, Missouri, and Florida) accounted for 80% of
the executions nationwide (28 of the 35) in 2014. See
DPIC, Number of Executions by State and Region Since
1976, online at http://www.deathpenaltyinfo.org/number-
executions-state-and-region-1976. Indeed, last year, only
seven States conducted an execution. DPIC, Executions
by State and Year, supra; DPIC, Death Sentences in the
United States From 1977 by State and by Year, online at
http://www.deathpenaltyinfo.org/death-sentences-unitedstates-1977-2008. In other words, in 43 States, no one was
executed.
In terms of population, if we ask how many Americans
live in a State that at least occasionally carries out an
execution (at least one within the prior three years), the
answer two decades ago was 60% or 70%. Today, that
number is 33%. See Appendix C, infra.
At the same time, use of the death penalty has become
increasingly concentrated geographically.
County-bycounty figures are relevant, for decisions to impose the
death penalty typically take place at a county level. See
supra, at 12–13. County-level sentencing figures show
that, between 1973 and 1997, 66 of America’s 3,143 counties accounted for approximately 50% of all death sentences
imposed. Liebman & Clarke 264–265; cf. id., at 266.
(counties with 10% of the Nation’s population imposed
36
GLOSSIP v. GROSS
BREYER, J., dissenting
43% of its death sentences). By the early 2000’s, the death
penalty was only actively practiced in a very small number
of counties: between 2004 and 2009, only 35 counties
imposed 5 or more death sentences, i.e., approximately one
per year. See Appendix D, infra (such counties colored in
red) (citing Ford, The Death Penalty’s Last Stand, The
Atlantic, Apr. 21, 2015). And more recent data show that
the practice has diminished yet further: between 2010 and
2015 (as of June 22), only 15 counties imposed five or more
death sentences. See Appendix E, infra. In short, the
number of active death penalty counties is small and
getting smaller. And the overall statistics on county-level
executions bear this out. Between 1976 and 2007, there
were no executions in 86% of America’s counties. Liebman
& Clarke 265–266, and n. 47; cf. ibid. (counties with less
than 5% of the Nation’s population carried out over half of
its executions from 1976–2007).
In sum, if we look to States, in more than 60% there is
effectively no death penalty, in an additional 18% an
execution is rare and unusual, and 6%, i.e., three States,
account for 80% of all executions. If we look to population,
about 66% of the Nation lives in a State that has not
carried out an execution in the last three years. And if we
look to counties, in 86% there is effectively no death penalty. It seems fair to say that it is now unusual to find
capital punishment in the United States, at least when we
consider the Nation as a whole. See Furman, 408 U. S., at
311 (1972) (White, J., concurring) (executions could be so
infrequently carried out that they “would cease to be a
credible deterrent or measurably to contribute to any
other end of punishment in the criminal justice system . . .
when imposition of the penalty reaches a certain degree
of infrequency, it would be very doubtful that any existing general need for retribution would be measurably
satisfied”).
Moreover, we have said that it “ ‘is not so much the
Cite as: 576 U. S. ____ (2015)
37
BREYER, J., dissenting
number of these States that is significant, but the consistency of the direction of change.’ ” Roper, 543 U. S., at
566 (quoting Atkins, supra, at 315) (finding significant
that five States had abandoned the death penalty for
juveniles, four legislatively and one judicially, since the
Court’s decision in Stanford v. Kentucky, 492 U. S. 361
(1989)). Judged in that way, capital punishment has
indeed become unusual. Seven States have abolished the
death penalty in the last decade, including (quite recently)
Nebraska. DPIC, States With and Without the Death
Penalty, supra. And several States have come within a
single vote of eliminating the death penalty. Seelye,
Measure to Repeal Death Penalty Fails by a Single Vote in
New Hampshire Senate, N. Y. Times, Apr. 17, 2014, p.
A12; Dennison, House Deadlocks on Bill To Abolish Death
Penalty in Montana, Billings Gazette, Feb. 23, 2015; see
also Offredo, Delaware Senate Passes Death Penalty
Repeal Bill, Delaware News Journal, Apr. 3, 2015. Eleven
States, as noted earlier, have not executed anyone in eight
years. Supra, at 34–35. And several States have formally
stopped executing inmates. See Yardley, Oregon’s Governor Says He Will Not Allow Executions, N. Y. Times, Nov.
23, 2011, p. A14 (Oregon); Governor of Colorado, Exec.
Order No. D2013–006, May 22, 2013 (Colorado); Lovett,
Executions Are Suspended by Governor in Washington,
N. Y. Times, Feb. 12, 2014, p. A12 (Washington); Begley,
Pennsylvania Stops Using the Death Penalty, Time, Feb.
13, 2015 (Pennsylvania); see also Welsh-Huggins, Associated Press, Ohio Executions Rescheduled, Jan. 30, 2015
(Ohio).
Moreover, the direction of change is consistent. In the
past two decades, no State without a death penalty has
passed legislation to reinstate the penalty. See Atkins,
supra, at 315–316; DPIC, States With and Without the
Death Penalty, supra. Indeed, even in many States most
associated with the death penalty, remarkable shifts have
38
GLOSSIP v. GROSS
BREYER, J., dissenting
occurred. In Texas, the State that carries out the most
executions, the number of executions fell from 40 in 2000
to 10 in 2014, and the number of death sentences fell from
48 in 1999 to 9 in 2013 (and 0 thus far in 2015). DPIC,
Executions by State and Year, supra; BJS, T. Snell, Capital Punishment, 1999, p. 6 (Table 5) (Dec. 2000) (hereinafter BJS 1999 Stats); BJS 2013 Stats, at 19 (Table 16); von
Drehle, Bungled Executions, Backlogged Courts, and
Three More Reasons the Modern Death Penalty Is a
Failed Experiment, Time, June 8, 2015, p. 26. Similarly
dramatic declines are present in Virginia, Oklahoma,
Missouri, and North Carolina. BJS 1999 Stats, at 6 (Table
5); BJS 2013 Stats, at 19 (Table 16).
These circumstances perhaps reflect the fact that a
majority of Americans, when asked to choose between the
death penalty and life in prison without parole, now
choose the latter. Wilson, Support for Death Penalty Still
High, But Down, Washington Post, GovBeat, June 5, 2014,
online at www.washingtonpost.com/blogs/govbeat/wp/
2014/06/05/support-for-death-penalty-still-high-but-down;
see also ALI, Report of the Council to the Membership on
the Matter of the Death Penalty 4 (Apr. 15, 2009) (withdrawing Model Penal Code section on capital punishment
section from the Code, in part because of doubts that the
American Law Institute could “recommend procedures
that would” address concerns about the administration of
the death penalty); cf. Gregg, 428 U. S., at 193–194 (joint
opinion of Stewart, Powell, and Stevens, JJ.) (relying in
part on Model Penal Code to conclude that a “carefully
drafted statute” can satisfy the arbitrariness concerns
expressed in Furman).
I rely primarily upon domestic, not foreign events, in
pointing to changes and circumstances that tend to justify
the claim that the death penalty, constitutionally speaking, is “unusual.” Those circumstances are sufficient to
warrant our reconsideration of the death penalty’s consti-
Cite as: 576 U. S. ____ (2015)
39
BREYER, J., dissenting
tutionality. I note, however, that many nations—indeed,
95 of the 193 members of the United Nations—have formally abolished the death penalty and an additional 42
have abolished it in practice. Oakford, UN Vote Against
Death Penalty Highlights Global Abolitionist Trend–and
Leaves the US Stranded, Vice News, Dec. 19, 2014, online
at https: / /news.vice.com / article / un-vote-against-deathpenalty-highlights-global-abolitionist-trend-and-leaves-the-
us-stranded. In 2013, only 22 countries in the world carried out an execution. International Commission Against
Death Penalty, Review 2013, pp. 2–3. No executions were
carried out in Europe or Central Asia, and the United
States was the only country in the Americas to execute an
inmate in 2013. Id., at 3. Only eight countries executed
more than 10 individuals (the United States, China, Iran,
Iraq, Saudi Arabia, Somalia, Sudan, Yemen). Id., at 2.
And almost 80% of all known executions took place in
three countries: Iran, Iraq, and Saudi Arabia. Amnesty
International, Death Sentences and Executions 2013, p. 3
(2014). (This figure does not include China, which has a
large population, but where precise data cannot be obtained. Id., at 2.)
V
I recognize a strong counterargument that favors constitutionality. We are a court. Why should we not leave the
matter up to the people acting democratically through
legislatures? The Constitution foresees a country that will
make most important decisions democratically. Most
nations that have abandoned the death penalty have done
so through legislation, not judicial decision. And legislators, unlike judges, are free to take account of matters
such as monetary costs, which I do not claim are relevant
here. See, e.g., Berman, Nebraska Lawmakers Abolish the
Death Penalty, Narrowly Overriding Governor’s Veto,
Washington Post Blog, Post Nation, May 27, 2015) (listing
40
GLOSSIP v. GROSS
BREYER, J.,
BREYER,
J.,dissenting
dissenting
cost as one of the reasons why Nebraska legislators recently repealed the death penalty in that State); cf. California Commission on the Fair Administration of Justice,
Report and Recommendations on the Administration of
the Death Penalty in California 117 (June 30, 2008) (death
penalty costs California $137 million per year; a comparable system of life imprisonment without parole would cost
$11.5 million per year), online at http://www.ccfaj.org/rrdp-official.html; Dáte, The High Price of Killing Killers,
Palm Beach Post, Jan. 4, 2000, p. 1A (cost of each execution is $23 million above cost of life imprisonment without
parole in Florida).
The answer is that the matters I have discussed, such as
lack of reliability, the arbitrary application of a serious
and irreversible punishment, individual suffering caused
by long delays, and lack of penological purpose are quintessentially judicial matters. They concern the infliction—
indeed the unfair, cruel, and unusual infliction—of a
serious punishment upon an individual. I recognize that
in 1972 this Court, in a sense, turned to Congress and the
state legislatures in its search for standards that would
increase the fairness and reliability of imposing a death
penalty. The legislatures responded. But, in the last four
decades, considerable evidence has accumulated that
those responses have not worked.
Thus we are left with a judicial responsibility. The
Eighth Amendment sets forth the relevant law, and we
must interpret that law. See Marbury v. Madison, 1
Cranch 137, 177 (1803); Hall, 572 U. S., at ___ (slip op., at
19) (“That exercise of independent judgment is the Court’s
judicial duty”). We have made clear that “ ‘the Constitution contemplates that in the end our own judgment will
be brought to bear on the question of the acceptability of
the death penalty under the Eighth Amendment.’ ” Id., at
___ (slip op., at 19) (quoting Coker v. Georgia, 433 U. S.
584, 597 (1977) (plurality opinion)); see also Thompson v.
Cite as: 576 U. S. ____ (2015)
41
BREYER, J., dissenting
Oklahoma, 487 U. S. 815, 833, n. 40 (1988) (plurality
opinion).
For the reasons I have set forth in this opinion, I believe
it highly likely that the death penalty violates the Eighth
Amendment. At the very least, the Court should call for
full briefing on the basic question.
With respect, I dissent.
42
GLOSSIP v. GROSS
J., dissenting
BREYER
Appendix
A to ,opinion
of BREYER, J. APPENDICES A
Death Sentences Imposed 1977–2014 Cite as: 576 U. S. ____ (2015)
J., dissenting
BREYER
Appendix
B to ,opinion
of BREYER, J.
B
Executions 1977–2014 43
44
GLOSSIP v. GROSS
J., dissenting
BREYER
Appendix
C to ,opinion
of BREYER, J.
C
Percentage of U.S. population in States that conducted an
execution within prior 3 years
Year
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
Percentage
54%
60%
63%
63%
61%
70%
68%
67%
57%
53%
52%
52%
55%
57%
53%
39%
43%
42%
39%
34%
33%
•
~
..
"= .,
~
=
•• ""~
=
= .,
-5"' 0
.,;
..
<
~
..
~
~
.:
~
...=
<;;>
..
_,..•
C>
C>
C'I
'
""'
C>
C>
C-1
p
~
........
p
z
~
P-i
~
••
~
~
"-
"'..:c.
E
•0
;;
••
=
.3
<
'"
.c.
rn
f-
"':::
1i
"'
..c
.s
..,.
(.)
.._,
"
·7.
"'a
;:
CJ)
.._,
~.
O!
a
"'
0
it
..c
.._,
..c
·~
ii
0
Ill
~
l!
·o
"'
3
0
:f
;;
0
"'
rZ"
,,•
,.
"
••
~
"
(
}
...;..
,.
APPENDIXE
Counties with Death Sentences: 2010-Pi·es~ol
,
. ..
'";'~
•
L•f~nd
'
~-
Cl
Fe-"'tr than 3 1ent~ocet
•
iS or more- sentenc-e.s
CJ ~or n1ore ten1enc'.9 in
states Lhol ha,•e eJTectl,•tly
nbandootd execudooJ
:0:.1u-""--·~ ·rb••
lu1dt•1•l,y tni: 1lnh• \\ 11,. •vm1,11''<I ....1, h
rt"l'-{'~ln=h
n...e1etaDCt' fn1m I h•~ :5upren1r t·\ ,urt Llhrur)' (1·urrc·nl n.. ,.r.Junt• 22. :!O i.;,
Cite as: 576 U. S. ____ (2015)
1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–7955
_________________
RICHARD E. GLOSSIP, ET AL., PETITIONERS v.
KEVIN J. GROSS, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
[June 29, 2015] JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE KAGAN join, dissenting.
Petitioners, three inmates on Oklahoma’s death row,
challenge the constitutionality of the State’s lethal injection protocol. The State plans to execute petitioners using
three drugs: midazolam, rocuronium bromide, and potassium chloride. The latter two drugs are intended to paralyze the inmate and stop his heart. But they do so in a
torturous manner, causing burning, searing pain. It is
thus critical that the first drug, midazolam, do what it is
supposed to do, which is to render and keep the inmate
unconscious. Petitioners claim that midazolam cannot be
expected to perform that function, and they have presented
ample evidence showing that the State’s planned use of
this drug poses substantial, constitutionally intolerable
risks.
Nevertheless, the Court today turns aside petitioners’
plea that they at least be allowed a stay of execution while
they seek to prove midazolam’s inadequacy. The Court
achieves this result in two ways: first, by deferring to the
District Court’s decision to credit the scientifically unsupported and implausible testimony of a single expert witness; and second, by faulting petitioners for failing to
satisfy the wholly novel requirement of proving the availability of an alternative means for their own executions.
2
GLOSSIP v. GROSS
SOTOMAYOR, J., dissenting
On both counts the Court errs. As a result, it leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake.
I
A
The Eighth Amendment succinctly prohibits the infliction of “cruel and unusual punishments.” Seven years ago,
in Baze v. Rees, 553 U. S. 35 (2008), the Court addressed
the application of this mandate to Kentucky’s lethal injection protocol. At that time, Kentucky, like at least 29 of
the 35 other States with the death penalty, utilized a
series of three drugs to perform executions: (1) sodium
thiopental, a “fast-acting barbiturate sedative that induces
a deep, comalike unconsciousness when given in the
amounts used for lethal injection”; (2) pancuronium bromide, “a paralytic agent that inhibits all muscular-skeletal
movements and . . . stops respiration”; and (3) potassium
chloride, which “interferes with the electrical signals that
stimulate the contractions of the heart, inducing cardiac
arrest.” Id., at 44 (plurality opinion of ROBERTS, C. J.).
In Baze, it was undisputed that absent a “proper dose of
sodium thiopental,” there would be a “substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride.” Id., at 53. That is because, if
given to a conscious inmate, pancuronium bromide would
leave him or her asphyxiated and unable to demonstrate
“any outward sign of distress,” while potassium chloride
would cause “excruciating pain.” Id., at 71 (Stevens, J.,
concurring in judgment). But the Baze petitioners conceded
that if administered as intended, Kentucky’s method of
execution would nevertheless “result in a humane death,”
id., at 41 (plurality opinion), as the “proper administration” of sodium thiopental “eliminates any meaningful risk
that a prisoner would experience pain from the subse-
Cite as: 576 U. S. ____ (2015)
3
SOTOMAYOR, J., dissenting
quent injections of pancuronium and potassium chloride,”
id., at 49. Based on that premise, the Court ultimately
rejected the challenge to Kentucky’s protocol, with the
plurality opinion concluding that the State’s procedures
for administering these three drugs ensured there was no
“objectively intolerable risk” of severe pain. Id., at 61–62
(internal quotation marks omitted).
B
For many years, Oklahoma performed executions using
the same three drugs at issue in Baze. After Baze was
decided, however, the primary producer of sodium thiopental refused to continue permitting the drug to be used
in executions. Ante, at 4–5. Like a number of other
States, Oklahoma opted to substitute pentobarbital, another barbiturate, in its place. But in March 2014, shortly
before two scheduled executions, Oklahoma found itself
unable to secure this drug. App. 144.
The State rescheduled the executions for the following
month to give it time to locate an alternative anesthetic.
In less than a week, a group of officials from the Oklahoma Department of Corrections and the Attorney General’s
office selected midazolam to serve as a replacement for
pentobarbital. Id., at 145, 148–149.
Soon thereafter, Oklahoma used midazolam for the first
time in its execution of Clayton Lockett. That execution
did not go smoothly. Ten minutes after an intravenous
(IV) line was set in Lockett’s groin area and 100 milligrams of midazolam were administered, an attending
physician declared Lockett unconscious. Id., at 392–393.
When the paralytic and potassium chloride were administered, however, Lockett awoke. Ibid. Various witnesses
reported that Lockett began to writhe against his restraints, saying, “[t]his s*** is f***ing with my mind,”
“something is wrong,” and “[t]he drugs aren’t working.”
Id., at 53 (internal quotation marks omitted). State offi-
4
GLOSSIP v. GROSS
SOTOMAYOR, J., dissenting
cials ordered the blinds lowered, then halted the execution.
Id., at 393, 395.
But 10 minutes later—
approximately 40 minutes after the execution began—
Lockett was pronounced dead. Id., at 395.
The State stayed all future executions while it sought to
determine what had gone wrong in Lockett’s. Five months
later, the State released an investigative report identifying a flaw in the IV line as the principal difficulty: The IV
had failed to fully deliver the lethal drugs into Lockett’s
veins. Id., at 398. An autopsy determined, however, that
the concentration of midazolam in Lockett’s blood was
more than sufficient to render an average person unconscious. Id., at 397, 405.
In response to this report, the State modified its lethal
injection protocol. The new protocol contains a number of
procedures designed to guarantee that members of the
execution team are able to insert the IV properly, and
charges them with ensuring that the inmate is unconscious. Id., at 57–66, 361–369. But the protocol continues
to authorize the use of the same three-drug formula used
to kill Lockett—though it does increase the intended dose
of midazolam from 100 milligrams to 500 milligrams. Id.,
at 61. The State has indicated that it plans to use this
drug combination in all upcoming executions, subject to
only an immaterial substitution of paralytic agents. Ante,
at 7–8.
C
In June 2014, inmates on Oklahoma’s death row filed a
42 U. S. C. §1983 suit against respondent prison officials
challenging the constitutionality of Oklahoma’s method of
execution. After the State released its revised execution
protocol, the four inmates whose executions were most
imminent—Charles Warner, along with petitioners Richard Glossip, John Grant, and Benjamin Cole—moved for a
preliminary injunction. They contended, among other
Cite as: 576 U. S. ____ (2015)
5
SOTOMAYOR, J., dissenting
things, that the State’s intended use of midazolam would
violate the Eighth Amendment because, unlike sodium
thiopental or pentobarbital, the drug “is incapable of
producing a state of unawareness that will be reliably
maintained after either of the other two pain-producing
drugs . . . is injected.” Amended Complaint ¶101.
The District Court held a 3-day evidentiary hearing, at
which petitioners relied principally on the testimony of
two experts: Dr. David Lubarsky, an anesthesiologist, and
Dr. Larry Sasich, a doctor of pharmacy. The State, in
turn, based its case on the testimony of Dr. Roswell Evans,
also a doctor of pharmacy.
To a great extent, the experts’ testimony overlapped.
All three experts agreed that midazolam is from a class of
sedative drugs known as benzodiazepines (a class that
includes Valium and Xanax), and that it has no analgesic—or pain-relieving—effects. App. 205 (Lubarsky), 260–
261 (Sasich), 311 (Evans). They further agreed that while
midazolam can be used to render someone unconscious, it
is not approved by the Federal Drug Administration (FDA)
for use as, and is not in fact used as, a “sole drug to produce and maintain anesthesia in surgical proceedings.”
Id., at 307, 327 (Evans); see id., at 171 (Lubarsky); id., at
262 (Sasich). Finally, all three experts recognized that
midazolam is subject to a ceiling effect, which means that
there is a point at which increasing the dose of the drug
does not result in any greater effect.
Id., at 172
(Lubarsky), 243 (Sasich), 331 (Evans).
The experts’ opinions diverged, however, on the crucial
questions of how this ceiling effect operates, and whether
it will prevent midazolam from keeping a condemned
inmate unconscious when the second and third lethal
injection drugs are administered. Dr. Lubarsky testified
that while benzodiazepines such as midazolam may, like
barbiturate drugs such as sodium thiopental and pentobarbital, induce unconsciousness by inhibiting neuron
6
GLOSSIP v. GROSS
SOTOMAYOR, J., dissenting
function, they do so in a materially different way. Id., at
207. More specifically, Dr. Lubarsky explained that both
barbiturates and benzodiazepines initially cause sedation
by facilitating the binding of a naturally occurring chemical called gamma-aminobutyric acid (GABA) with GABA
receptors, which then impedes the flow of electrical impulses through the neurons in the central nervous system.
Id., at 206. But at higher doses, barbiturates also act as a
GABA substitute and mimic its neuron-suppressing effects. Ibid. By contrast, benzodiazepines lack this mimicking function, which means their effect is capped at a
lower level of sedation. Ibid. Critically, according to Dr.
Lubarsky, this ceiling on midazolam’s sedative effect is
reached before full anesthesia can be achieved. Ibid.
Thus, in his view, while “midazolam unconsciousness is
. . . sufficient” for “minor procedure[s],” Tr. of Preliminary
Injunction Hearing 132–133 (Tr.), it is incapable of keeping someone “insensate and immobile in the face of [more]
noxious stimuli,” including the extreme pain and discomfort associated with administration of the second and third
drugs in Oklahoma’s lethal injection protocol, App. 218.
Dr. Sasich endorsed Dr. Lubarsky’s description of the
ceiling effect, and offered similar reasons for reaching the
same conclusion. See id., at 243, 248, 262.
In support of these assertions, both experts cited a
variety of evidence. Dr. Lubarsky emphasized, in particular, Arizona’s 2014 execution of Joseph Wood, which had
been conducted using midazolam and the drug hydromorphone rather than the three-drug cocktail Oklahoma
intends to employ.1 Id., at 176. Despite being administered 750 milligrams of midazolam, Wood had continued
breathing and moving for nearly two hours—which, ac——————
1 Hydromorphone is a powerful analgesic similar to morphine or heroin. See R. Stoelting & S. Hillier, Pharmacology & Physiology in Anesthetic Practice 87–88 (4th ed. 2006) (Stoelting & Hillier).
Cite as: 576 U. S. ____ (2015)
7
SOTOMAYOR, J., dissenting
cording to Dr. Lubarsky, would not have occurred “during
extremely deep levels of anesthesia.” Id., at 177. Both
experts also cited various scientific articles and textbooks
to support their conclusions. For instance, Dr. Lubarsky
relied on a study measuring the brain activity of rats that
were administered midazolam, which showed that the
drug’s impact significantly tailed off at higher doses. See
Hovinga et al., Pharmacokinetic-EEG Effect Relationship
of Midazolam in Aging BN/BiRij Rats, 107 British J.
Pharmacology 171, 173, Fig. 2 (1992). He also pointed to a
pharmacology textbook that confirmed his description of
how benzodiazepines and barbiturates produce their
effects, see Stoelting & Hillier 127–128, 140–144, and a
survey article concluding that “[m]idazolam cannot be
used alone . . . to maintain adequate anesthesia,” Reves,
Fragen, Vinik, & Greenblatt, Midazolam: Pharmacology
and Uses, 62 Anesthesiology 310, 318 (1985) (Reves). For
his part, Dr. Sasich referred to a separate survey article,
which similarly recognized and described the ceiling effect
to which benzodiazepines are subject. See Saari, UusiOukari, Ahonen, & Olkkola, Enhancement of GABAergic
Activity: Neuropharmacological Effects of Benzodiazepines
and Therapeutic Use in Anesthesiology, 63 Pharamacological Rev. 243, 244, 250 (2011) (Saari).
By contrast, Dr. Evans, the State’s expert, asserted that
a 500-milligram dose of midazolam would “render the
person unconscious and ‘insensate’ during the remainder
of the [execution] procedure.” App. 294. He rested this
conclusion on two interrelated propositions.
First, observing that a therapeutic dose of midazolam to
treat anxiety is less than 5 milligrams for a 70-kilogram
adult, Dr. Evans emphasized that Oklahoma’s planned
administration of 500 milligrams of the drug was “at least
100 times the normal therapeutic dose.” Ibid. While he
acknowledged that “[t]here are no studies that have been
done . . . administering that much . . . midazolam . . . to
8
GLOSSIP v. GROSS
SOTOMAYOR, J., dissenting
anybody,” he noted that deaths had occurred in doses as
low as 0.04 to 0.07 milligrams per kilogram (2.8 to 4.9
milligrams for a 70-kilogram adult), and contended that a
500-milligram dose would itself cause death within less
than an hour—a conclusion he characterized as “essentially
an extrapolation from a toxic effect.” Id., at 327; see id.,
at 308.
Second, in explaining how he reconciled his opinion with
the evidence of midazolam’s ceiling effect, Dr. Evans testified that while “GABA receptors are found across the
entire body,” midazolam’s ceiling effect is limited to the
“spinal cord” and there is “no ceiling effect” at the “higher
level of [the] brain.” Id., at 311–312. Consequently, in his
view, “as you increase the dose of midazolam, it’s a linear
effect, so you’re going to continue to get an impact from
higher doses of the drug,” id., at 332, until eventually
“you’re paralyzing the brain,” id., at 314. Dr. Evans also
understood the chemical source of midazolam’s ceiling
effect somewhat differently from petitioners’ experts.
Although he agreed that midazolam produces its effect by
“binding to [GABA] receptors,” id., at 293, he appeared to
believe that midazolam produced sedation by “inhibiting
GABA” from attaching to GABA receptors, not by promoting GABA’s sedative effects, id., at 312. Thus, when asked
about Dr. Lubarsky’s description of the ceiling effect, Dr.
Evans characterized the phenomenon as stemming from
“the competitive nature of substances trying to attach to
GABA receptors.” Id., at 313.
Dr. Evans cited no scholarly research in support of his
opinions. Instead, he appeared to rely primarily on two
sources: the Web site www.drugs.com, and a “Material
Safety Data Sheet” produced by a midazolam manufacturer.
See id., at 303. Both simply contained general information that covered the experts’ areas of agreement.
Cite as: 576 U. S. ____ (2015)
9
SOTOMAYOR, J., dissenting
D
The District Court denied petitioners’ motion for a
preliminary injunction. It began by making a series of
factual findings regarding the characteristics of midazolam and its use in Oklahoma’s execution protocol. Most
relevant here, the District Court found that “[t]he proper
administration of 500 milligrams of midazolam . . . would
make it a virtual certainty that an individual will be at a
sufficient level of unconsciousness to resist the noxious
stimuli which could occur from the application of the
second and third drugs.” Id., at 77. Respecting petitioners’ contention that there is a “ceiling effect which prevents an increase in dosage from having a corresponding
incremental effect on anesthetic depth,” the District Court
concluded:
“Dr. Evans testified persuasively . . . that whatever
the ceiling effect of midazolam may be with respect to
anesthesia, which takes effect at the spinal cord level,
there is no ceiling effect with respect to the ability of a
500 milligram dose of midazolam to effectively paralyze the brain, a phenomenon which is not anesthesia
but does have the effect of shutting down respiration
and eliminating the individual’s awareness of pain.”
Id., at 78.
Having made these findings, the District Court held
that petitioners had shown no likelihood of success on the
merits of their Eighth Amendment claim for two independent reasons. First, it determined that petitioners had
“failed to establish that proceeding with [their] execution[s] . . . on the basis of the revised protocol presents . . .
‘an objectively intolerable risk of harm.’ ” Id., at 96. Second, the District Court held that petitioners were unlikely
to prevail because they had not identified any “ ‘known and
available alternative’ ” means by which they could be
executed—a requirement it understood Baze to impose.
10
GLOSSIP v. GROSS
SOTOMAYOR, J., dissenting
Id., at 97. The District Court concluded that the State
“ha[d] affirmatively shown that sodium thiopental and
pentobarbital, the only alternatives to which the [petitioners] have even alluded, are not available to the [State].”
Id., at 98.
The Court of Appeals for the Tenth Circuit affirmed.
Warner v. Gross, 776 F. 3d 721 (2015). It, like the District
Court, held that petitioners were unlikely to prevail on the
merits because they had failed to prove the existence of
“ ‘known and available alternatives.’ ” Id., at 732. “In any
event,” the court continued, it was unable to conclude that
the District Court’s factual findings had been clearly
erroneous, and thus petitioners had also “failed to establish that the use of midazolam in their executions . . .
creates a demonstrated risk of severe pain.” Ibid.
Petitioners and Charles Warner filed a petition for
certiorari and an application to stay their executions. The
Court denied the stay application, and Charles Warner
was executed on January 15, 2015. See Warner v. Gross,
574 U. S. ___ (2015) (SOTOMAYOR, J., dissenting from
denial of certiorari). The Court subsequently granted
certiorari and, at the request of the State, stayed petitioners’ pending executions.
II
I begin with the second of the Court’s two holdings: that
the District Court properly found that petitioners did not
demonstrate a likelihood of showing that Oklahoma’s
execution protocol poses an unconstitutional risk of pain.
In reaching this conclusion, the Court sweeps aside substantial evidence showing that, while midazolam may be
able to induce unconsciousness, it cannot be utilized to
maintain unconsciousness in the face of agonizing stimuli.
Instead, like the District Court, the Court finds comfort in
Dr. Evans’ wholly unsupported claims that 500 milligrams
of midazolam will “paralyz[e] the brain.” In so holding,
Cite as: 576 U. S. ____ (2015)
11
SOTOMAYOR, J., dissenting
the Court disregards an objectively intolerable risk of
severe pain.
A
Like the Court, I would review for clear error the District Court’s finding that 500 milligrams of midazolam will
render someone sufficiently unconscious “ ‘to resist the
noxious stimuli which could occur from the application of
the second and third drugs.’ ” Ante, at 18–19 (quoting App.
77). Unlike the Court, however, I would do so without
abdicating our duty to examine critically the factual predicates for the District Court’s finding—namely, Dr. Evans’
testimony that midazolam has a “ceiling effect” only “at
the spinal cord level,” and that a “500 milligram dose of
midazolam” can therefore “effectively paralyze the brain.”
Id., at 78. To be sure, as the Court observes, such scientific testimony may at times lie at the boundaries of federal courts’ expertise. See ante, at 17–18. But just because
a purported expert says something does not make it so.
Especially when important constitutional rights are at
stake, federal district courts must carefully evaluate the
premises and evidence on which scientific conclusions are
based, and appellate courts must ensure that the courts
below have in fact carefully considered all the evidence
presented. Clear error exists “when although there is
evidence to support” a finding, “the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed.” United States v.
United States Gypsum Co., 333 U. S. 364, 395 (1948).
Here, given the numerous flaws in Dr. Evans’ testimony,
there can be little doubt that the District Court clearly
erred in relying on it.
To begin, Dr. Evans identified no scientific literature to
support his opinion regarding midazolam’s properties at
higher-than-normal doses. Apart from a Material Safety
Data Sheet that was relevant only insofar as it suggests
12
GLOSSIP v. GROSS
SOTOMAYOR, J., dissenting
that a low dose of midazolam may occasionally be toxic,
see ante, at 27—an issue I discuss further below—Dr.
Evans’ testimony seems to have been based on the Web
site www.drugs.com. The Court may be right that “petitioners do not identify any incorrect statements from
drugs.com on which Dr. Evans relied.” Ante, at 27. But
that is because there were no statements from drugs.com
that supported the critically disputed aspects of Dr. Evans’
opinion. If anything, the Web site supported petitioners’
contentions, as it expressly cautioned that midazolam
“[s]hould not be used alone for maintenance of anesthesia,” App. H to Pet. for Cert. 6159, and contained no warning that an excessive dose of midazolam could “paralyze
the brain,” see id., at 6528–6529.
Most importantly, nothing from drugs.com—or, for that
matter, any other source in the record—corroborated Dr.
Evans’ key testimony that midazolam’s ceiling effect is
limited to the spinal cord and does not pertain to the
brain. Indeed, the State appears to have disavowed Dr.
Evans’ spinal-cord theory, refraining from even mentioning it in its brief despite the fact that the District Court
expressly relied on this testimony as the basis for finding
that larger doses of midazolam will have greater anesthetic
effects. App. 78. The Court likewise assiduously avoids
defending this theory.
That is likely because this aspect of Dr. Evans’ testimony was not just unsupported, but was directly refuted by
the studies and articles cited by Drs. Lubarsky and Sasich.
Both of these experts relied on academic texts describing
benzodiazepines’ ceiling effect and explaining why it prevents these drugs from rendering a person completely
insensate. See Stoelting & Hillier 141, 144 (describing
midazolam’s ceiling effect and contrasting the drug with
barbiturates); Saari 244 (observing that “abolishment of
perception of environmental stimuli cannot usually be
generated”). One study further made clear that the ceiling
Cite as: 576 U. S. ____ (2015)
13
SOTOMAYOR, J., dissenting
effect is apparent in the brain. See id., at 250.
These scientific sources also appear to demonstrate that
Dr. Evans’ spinal-cord theory—i.e., that midazolam’s
ceiling effect is limited to the spinal cord—was premised
on a basic misunderstanding of midazolam’s mechanism of
action. I say “appear” not because the sources themselves
are unclear about how midazolam operates: They plainly
state that midazolam functions by promoting GABA’s
inhibitory effects on the central nervous system. See, e.g.,
Stoelting & Hillier 140. Instead, I use “appear” because
discerning the rationale underlying Dr. Evans’ testimony
is difficult. His spinal-cord theory might, however, be
explained at least in part by his apparent belief that rather
than promoting GABA’s inhibitory effects, midazolam
produces sedation by “compet[ing]” with GABA and thus
“inhibit[ing]” GABA’s effect. App. 312–313.2 Regardless, I
need not delve too deeply into Dr. Evans’ alternative
scientific reality. It suffices to say that to the extent that
Dr. Evans’ testimony was based on his understanding of
the source of midazolam’s pharmacological properties, that
understanding was wrong.
——————
2 The Court disputes this characterization of Dr. Evans’ testimony,
insisting that Dr. Evans accurately described midazolam’s properties in
the written report he submitted prior to the hearing below, and suggesting that petitioners’ experts would have “dispute[d] the accuracy” of
this explanation were it in fact wrong. Ante, at 25. But Dr. Evans’
written report simply said midazolam “produces different levels of
central nervous system (CNS) depression through binding to [GABA]
receptors.” App. 293. That much is true. Only after Drs. Sasich and
Lubarsky testified did Dr. Evans further claim that midazolam produced CNS depression by binding to GABA receptors and thereby
preventing GABA itself from binding to those receptors—which is where
he went wrong. The Court’s further observation that Dr. Lubarsky also
used a variant on the word “inhibiting” in his testimony—in saying that
GABA’s “ ‘inhibition of brain activity is accentuated by midazolam,’ ”
ante, at 25 (quoting App. 232)—is completely nonresponsive. “Inhibiting” is a perfectly good word; the problem here is the manner in which
Dr. Evans used it in a sentence.
14
GLOSSIP v. GROSS
SOTOMAYOR, J., dissenting
These inconsistencies and inaccuracies go to the very
heart of Dr. Evans’ expert opinion, as they were the key
components of his professed belief that one can extrapolate
from what is known about midazolam’s effect at low doses
to conclude that the drug would “paralyz[e] the brain” at
Oklahoma’s planned dose. Id., at 314. All three experts
recognized that there had been no scientific testing on the
use of this amount of midazolam in conjunction with these
particular lethal injection drugs. See ante, at 19; App. 176
(Lubarsky), 243–244 (Sasich), 327 (Evans). For this reason, as the Court correctly observes, “extrapolation was
reasonable.” Ante, at 20. But simply because extrapolation may be reasonable or even required does not mean
that every conceivable method of extrapolation can be
credited, or that all estimates stemming from purported
extrapolation are worthy of belief. Dr. Evans’ view was
that because 40 milligrams of midazolam could be used to
induce unconsciousness, App. 294, and because more drug
will generally produce more effect, a significantly larger
dose of 500 milligrams would not just induce unconsciousness but allow for its maintenance in the face of extremely
painful stimuli, and ultimately even cause death itself. In
his words: “[A]s you increase the dose of midazolam, it’s a
linear effect, so you’re going to continue to get an impact
from higher doses of the drug.” Id., at 332. If, however,
there is a ceiling with respect to midazolam’s effect on the
brain—as petitioners’ experts established there is—then
such simplistic logic is not viable. In this context, more is
not necessarily better, and Dr. Evans was plainly wrong to
presume it would be.
If Dr. Evans had any other basis for the “extrapolation”
that led him to conclude 500 milligrams of midazolam
would “paralyz[e] the brain,” id., at 314, it was even further divorced from scientific evidence and logic. Having
emphasized that midazolam had been known to cause
approximately 80 deaths, Dr. Evans asserted that his
Cite as: 576 U. S. ____ (2015)
15
SOTOMAYOR, J., dissenting
opinion regarding the efficacy of Oklahoma’s planned use
of the drug represented “essentially an extrapolation from
a toxic effect.” Id., at 327 (emphasis added); see id., at
308. Thus, Dr. Evans appeared to believe—and again, I
say “appeared” because his rationale is not clear—that
because midazolam caused some deaths, it would necessarily cause complete unconsciousness and then death at
especially high doses. But Dr. Evans also thought, and
Dr. Lubarsky confirmed, that these midazolam fatalities
had occurred at very low doses—well below what any
expert said would produce unconsciousness. See id., at
207, 308. These deaths thus seem to represent the rare,
unfortunate side effects that one would expect to see with
any drug at normal therapeutic doses; they provide no
indication of the effect one would expect midazolam to
have on the brain at substantially higher doses. Deaths
occur with almost any product. One might as well say
that because some people occasionally die from eating one
peanut, one hundred peanuts would necessarily induce a
coma and death in anyone.3
In sum, then, Dr. Evans’ conclusions were entirely
unsupported by any study or third-party source, contradicted by the extrinsic evidence proffered by petitioners,
inconsistent with the scientific understanding of midazolam’s properties, and apparently premised on basic logical
errors. Given these glaring flaws, the District Court’s
——————
3 For
all the reasons discussed in Part II–B, infra, and contrary to the
Court’s claim, see ante, at 20, n. 4, there are good reasons to doubt that
500 milligrams of midazolam will, in light of the ceiling effect, inevitably kill someone. The closest the record comes to providing support for
this contention is the fleeting mention in the FDA-approved product
label that one of the possible consequences of midazolam overdosage is
coma. See ante, at 21, n. 5. Moreover, even if this amount of the drug
could kill some people in “under an hour,” ante, at 20, n. 4, that would
not necessarily mean that the condemned would be insensate during
the approximately 10 minutes it takes for the paralytic and potassium
chloride to do their work.
16
GLOSSIP v. GROSS
SOTOMAYOR, J., dissenting
acceptance of Dr. Evans’ claim that 500 milligrams of
midazolam would “paralyz[e] the brain” cannot be credited.
This is not a case “[w]here there are two permissible
views of the evidence,” and the District Court chose one;
rather, it is one where the trial judge credited “one of two
or more witnesses” even though that witness failed to tell
“a coherent and facially plausible story that is not contradicted by extrinsic evidence.” Anderson v. Bessemer City,
470 U. S. 564, 574–575 (1985). In other words, this is a
case in which the District Court clearly erred. See ibid.
B
Setting aside the District Court’s erroneous factual
finding that 500 milligrams of midazolam will necessarily
“paralyze the brain,” the question is whether the Court is
nevertheless correct to hold that petitioners failed to
demonstrate that the use of midazolam poses an “objectively intolerable risk” of severe pain. See Baze, 553 U. S.,
at 50 (plurality opinion) (internal quotation marks omitted). I would hold that they made this showing. That is
because, in stark contrast to Dr. Evans, petitioners’ experts were able to point to objective evidence indicating
that midazolam cannot serve as an effective anesthetic
that “render[s] a person insensate to pain caused by the
second and third [lethal injection] drugs.” Ante, at 23.
As observed above, these experts cited multiple sources
supporting the existence of midazolam’s ceiling effect.
That evidence alone provides ample reason to doubt midazolam’s efficacy. Again, to prevail on their claim, petitioners need only establish an intolerable risk of pain, not
a certainty. See Baze, 553 U. S., at 50. Here, the State is
attempting to use midazolam to produce an effect the drug
has never previously been demonstrated to produce, and
despite studies indicating that at some point increasing
the dose will not actually increase the drug’s effect. The
State is thus proceeding in the face of a very real risk that
Cite as: 576 U. S. ____ (2015)
17
SOTOMAYOR, J., dissenting
the drug will not work in the manner it claims.
Moreover, and perhaps more importantly, the record
provides good reason to think this risk is substantial. The
Court insists that petitioners failed to provide “probative
evidence” as to whether “midazolam’s ceiling effect occurs
below the level of a 500-milligram dose and at a point at
which the drug does not have the effect of rendering a
person insensate to pain.” Ante, at 23. It emphasizes that
Dr. Lubarsky was unable to say “at what dose the ceiling
effect occurs,” and could only estimate that it was
“ ‘[p]robably after about . . . 40 to 50 milligrams.’ ” Ante, at
23 (quoting App. 225).
But the precise dose at which midazolam reaches its
ceiling effect is irrelevant if there is no dose at which the
drug can, in the Court’s words, render a person “insensate
to pain.” Ante, at 23. On this critical point, Dr. Lubarsky
was quite clear.4 He explained that the drug “does not
work to produce” a “lack of consciousness as noxious stimuli are applied,” and is “not sufficient to produce a surgical
plane of anesthesia in human beings.” App. 204. He also
——————
4 Dr.
Sasich, as the Court emphasizes, was perhaps more hesitant to
reach definitive conclusions, see ante, at 19–21, and n. 5, 23–24, but the
statements highlighted by the Court largely reflect his (truthful)
observations that no testing has been done at doses of 500 milligrams,
and his inability to pinpoint the precise dose at which midazolam's
ceiling effect might be reached. Dr. Sasich did not, as the Court suggests, claim that midazolam’s ceiling effect would be reached only after
a person became fully insensate to pain. Ante, at 24. What Dr. Sasich
actually said was: “As the dose increases, the benzodiazepines are
expected to produce sedation, amnesia, and finally lack of response to
stimuli such as pain (unconsciousness).” App. 243. In context, it is
clear that Dr. Sasich was simply explaining that a drug like midazolam
can be used to induce unconsciousness—an issue that was and remains
undisputed—not that it could render an inmate sufficiently unconscious
to resist all noxious stimuli. Indeed, it was midazolam’s possible
inability to serve the latter function that led Dr. Sasich to conclude that
“it is not an appropriate drug to use when administering a paralytic
followed by potassium chloride.” Id., at 248.
18
GLOSSIP v. GROSS
SOTOMAYOR, J., dissenting
noted that “[t]he drug would never be used and has never
been used as a sole anesthetic to give anesthesia during a
surgery,” id., at 223, and asserted that “the drug was not
approved by the FDA as a sole anesthetic because after
the use of fairly large doses that were sufficient to reach
the ceiling effect and produce induction of unconsciousness, the patients responded to the surgery,” id., at 219.
Thus, Dr. Lubarsky may not have been able to identify
whether this effect would be reached at 40, 50, or 60 milligrams or some higher threshold, but he could specify
that at no level would midazolam reliably keep an inmate unconscious once the second and third drugs were
delivered.5
These assertions were amply supported by the evidence
of the manner in which midazolam is and can be used. All
three experts agreed that midazolam is utilized as the sole
sedative only in minor procedures. Dr. Evans, for example, acknowledged that while midazolam may be used as
the sole drug in some procedures that are not “terribly
invasive,” even then “you would [generally] see it used in
combination with a narcotic.” Id., at 307. And though, as
the Court observes, Dr. Sasich believed midazolam could
be “used for medical procedures like colonoscopies and
gastroscopies,” ante, at 21, he insisted that these procedures were not necessarily painful, and that it would be a
——————
5 The Court claims that the District Court could have properly disregarded Dr. Lubarsky’s testimony because he asserted that a protocol
with sodium thiopental would “ ‘produce egregious harm and suffering.’ ” Ante, at 24, n. 6 (quoting App. 227). But Dr. Lubarsky did not
testify that, like midazolam, sodium thiopental would not render an
inmate fully insensate even if properly administered; rather, he simply
observed that he had previously contended that protocols using that
drug were ineffective. See App. 227. He was presumably referring to
an article he coauthored that found many condemned inmates were not
being successfully delivered the dose of sodium thiopental necessary to
fully anesthetize them. See Baze, 553 U. S., at 67 (ALITO, J., concurring) (discussing this study).
Cite as: 576 U. S. ____ (2015)
19
SOTOMAYOR, J., dissenting
“big jump” to conclude that midazolam would be effective
to maintain unconsciousness throughout an execution. Tr.
369–370. Indeed, the record provides no reason to think
that these procedures cause excruciating pain remotely
comparable to that produced by the second and third
lethal injection drugs Oklahoma intends to use.
As for more painful procedures, the consensus was also
clear: Midazolam is not FDA-approved for, and is not used
as, a sole drug to maintain unconsciousness. See App. 171
(Lubarsky), 262 (Sasich), 327 (Evans). One might infer
from the fact that midazolam is not used as the sole anesthetic for more serious procedures that it cannot be used
for them. But drawing such an inference is unnecessary,
as petitioners’ experts invoked sources expressly stating
as much. In particular, Dr. Lubarsky pointed to a survey
article that cited four separate authorities and declared
that “[m]idazolam cannot be used alone . . . to maintain
adequate anesthesia.” Reves 318; see also Stoelting &
Hillier 145 (explaining that midzolam is used for “induction of anesthesia,” and that, “[i]n combination with other
drugs, [it] may be used for maintenance of anesthesia”
(emphasis added)).
This evidence was alone sufficient, but if one wanted
further support for these conclusions it was provided by
the Lockett and Wood executions. The procedural flaws
that marred the Lockett execution created the conditions
for an unintended (and grotesque) experiment on midazolam’s efficacy. Due to problems with the IV line, Lockett
was not fully paralyzed after the second and third drugs
were administered. He had, however, been administered
more than enough midazolam to “render an average person unconscious,” as the District Court found. App. 57.
When Lockett awoke and began to writhe and speak, he
demonstrated the critical difference between midazolam’s
ability to render an inmate unconscious and its ability to
maintain the inmate in that state. The Court insists that
20
GLOSSIP v. GROSS
SOTOMAYOR, J., dissenting
Lockett’s execution involved “only 100 milligrams of midazolam,” ante, at 28, but as explained previously, more is
not necessarily better given midazolam’s ceiling effect.
The Wood execution is perhaps even more probative.
Despite being given over 750 milligrams of midazolam,
Wood gasped and snorted for nearly two hours. These
reactions were, according to Dr. Lubarsky, inconsistent
with Wood being fully anesthetized, App. 177–178, and
belie the claim that a lesser dose of 500 milligrams would
somehow suffice. The Court attempts to distinguish the
Wood execution on the ground that the timing of Arizona’s
administration of midazolam was different. Ante, at 28.
But as Dr. Lubarsky testified, it did not “matter” whether
in Wood’s execution the “midazolam was introduced all at
once or over . . . multiple doses,” because “[t]he drug has a
sufficient half life that the effect is cumulative.” App. 220;
see also Saari 253 (midazolam’s “elimination half-life
ranges from 1.7 to 3.5 h[ours]”).6 Nor does the fact that
Wood’s dose of midazolam was paired with hydromorphone rather than a paralytic and potassium chromide,
see ante, at 29, appear to have any relevance—other than
that the use of this analgesic drug may have meant that
Wood did not experience the same degree of searing pain
that an inmate executed under Oklahoma’s protocol may
face.
By contrast, Florida’s use of this same three-drug protocol in 11 executions, see ante, at 28 (citing Brief for State
of Florida as Amicus Curiae 1), tells us virtually nothing.
Although these executions have featured no obvious mishaps, the key word is “obvious.” Because the protocol
——————
6 The Court asserts that the State refuted these contentions, pointing
to Dr. Evans’ testimony that 750 milligrams of the drug “might not
have the effect that was sought” if administered over an hour. Tr. 667;
see ante, at 28, n. 6. But as has been the theme here, this pronouncement was entirely unsupported, and appears to be contradicted by the
secondary sources cited by petitioners’ experts.
Cite as: 576 U. S. ____ (2015)
21
SOTOMAYOR, J., dissenting
involves the administration of a powerful paralytic, it is,
as Drs. Sasich and Lubarsky explained, impossible to tell
whether the condemned inmate in fact remained unconscious. App. 218, 273; see also Baze, 553 U. S., at 71
(Stevens, J., concurring in judgment). Even in these
executions, moreover, there have been indications of the
inmates’ possible awareness. See Brief for State of Alabama et al. as Amici Curiae 9–13 (describing the 11 Florida executions, and noting that some allegedly involved
blinking and other movement after administration of the
three drugs).7
Finally, none of the State’s “safeguards” for administering these drugs would seem to mitigate the substantial
risk that midazolam will not work, as the Court contends.
See ante, at 21–22. Protections ensuring that officials
have properly secured a viable IV site will not enable
midazolam to have an effect that it is chemically incapable
of having. Nor is there any indication that the State’s
monitoring of the inmate’s consciousness will be able to
anticipate whether the inmate will remain unconscious
while the second and third drugs are administered. No
one questions whether midazolam can induce unconsciousness. The problem, as Lockett’s execution vividly
illustrates, is that an unconscious inmate may be awakened by the pain and respiratory distress caused by administration of the second and third drugs. At that point,
even if it were possible to determine whether the inmate is
conscious—dubious, given the use of a paralytic—it is
already too late. Presumably for these reasons, the Tenth
Circuit characterized the District Court’s reliance on these
procedural mechanisms as “not relevant to its rejection of
——————
7 The fact that courts in Florida have approved the use of midazolam
in this fashion is arguably slightly more relevant, though it is worth
noting that the majority of these decisions were handed down before
the Lockett and Wood executions, and that some relied, as here, on Dr.
Evans’ testimony. See ante, at 17.
22
GLOSSIP v. GROSS
SOTOMAYOR, J., dissenting
[petitioners’] claims regarding the inherent characteristics
of midazolam.” Warner, 776 F. 3d, at 733.
C
The Court not only disregards this record evidence of
midazolam’s inadequacy, but also fails to fully appreciate
the procedural posture in which this case arises. Petitioners have not been accorded a full hearing on the merits of
their claim. They were granted only an abbreviated evidentiary proceeding that began less than three months
after the State issued its amended execution protocol; they
did not even have the opportunity to present rebuttal
evidence after Dr. Evans testified. They sought a preliminary injunction, and thus were not required to prove their
claim, but only to show that they were likely to succeed on
the merits. See Winter v. Natural Resources Defense
Council, Inc., 555 U. S. 7, 20 (2008); Hill v. McDonough,
547 U. S. 573, 584 (2006).
Perhaps the State could prevail after a full hearing,
though this would require more than Dr. Evans’ unsupported testimony. At the preliminary injunction stage,
however, petitioners presented compelling evidence suggesting that midazolam will not work as the State intends.
The State, by contrast, offered absolutely no contrary
evidence worth crediting. Petitioners are thus at the very
least likely to prove that, due to midazolam’s inherent
deficiencies, there is a constitutionally intolerable risk
that they will be awake, yet unable to move, while chemicals known to cause “excruciating pain” course through
their veins. Baze, 553 U. S., at 71 (Stevens, J., concurring
in judgment).
III
The Court’s determination that the use of midazolam
poses no objectively intolerable risk of severe pain is factually wrong. The Court’s conclusion that petitioners’
Cite as: 576 U. S. ____ (2015)
23
SOTOMAYOR, J., dissenting
challenge also fails because they identified no available
alternative means by which the State may kill them is
legally indefensible.
A
This Court has long recognized that certain methods of
execution are categorically off-limits. The Court first
confronted an Eighth Amendment challenge to a method
of execution in Wilkerson v. Utah, 99 U. S. 130 (1879).
Although Wilkerson approved the particular method at
issue—the firing squad—it made clear that “public dissection,” “burning alive,” and other “punishments of torture
. . . in the same line of unnecessary cruelty, are forbidden
by [the Eighth A]mendment to the Constitution.” Id., at
135–136. Eleven years later, in rejecting a challenge to
the first proposed use of the electric chair, the Court again
reiterated that “if the punishment prescribed for an offense against the laws of the State were manifestly cruel
and unusual, as burning at the stake, crucifixion, breaking
on the wheel, or the like, it would be the duty of the courts
to adjudge such penalties to be within the constitutional
prohibition.” In re Kemmler, 136 U. S. 436, 446 (1890).
In the more than a century since, the Members of this
Court have often had cause to debate the full scope of the
Eighth Amendment’s prohibition of cruel and unusual
punishment. See, e.g., Furman v. Georgia, 408 U. S. 238
(1972). But there has been little dispute that it at the
very least precludes the imposition of “barbarous physical
punishments.” Rhodes v. Chapman, 452 U. S. 337, 345
(1981); see, e.g., Solem v. Helm, 463 U. S. 277, 284 (1983);
id., at 312–313 (Burger, C. J., dissenting); Baze, 553 U. S.,
at 97–99 (THOMAS, J., concurring in judgment); Harmelin
v. Michigan, 501 U. S. 957, 976 (1991) (opinion of SCALIA,
J.). Nor has there been any question that the Amendment
prohibits such “inherently barbaric punishments under all
circumstances.” Graham v. Florida, 560 U. S. 48, 59
24
GLOSSIP v. GROSS
SOTOMAYOR, J., dissenting
(2010) (emphasis added). Simply stated, the “Eighth
Amendment categorically prohibits the infliction of cruel
and unusual punishments.” Penry v. Lynaugh, 492 U. S.
302, 330 (1989) (emphasis added).
B
The Court today, however, would convert this categorical prohibition into a conditional one. A method of execution that is intolerably painful—even to the point of being
the chemical equivalent of burning alive—will, the Court
holds, be unconstitutional if, and only if, there is a “known
and available alternative” method of execution. Ante, at
15. It deems Baze to foreclose any argument to the contrary. Ante, at 14.
Baze held no such thing. In the first place, the Court
cites only the plurality opinion in Baze as support for its
known-and-available-alternative requirement. See ibid.
Even assuming that the Baze plurality set forth such a
requirement—which it did not—none of the Members of
the Court whose concurrences were necessary to sustain
the Baze Court’s judgment articulated a similar view. See
553 U. S., at 71–77, 87 (Stevens, J., concurring in judgment); id., at 94, 99–107 (THOMAS, J., concurring in judgment); id., at 107–108, 113 (BREYER, J., concurring in
judgment). In general, “the holding of the Court may be
viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds.”
Marks v. United States, 430 U. S. 188, 193 (1977) (internal
quotation marks omitted). And as the Court observes,
ante, at 14, n. 2, the opinion of JUSTICE THOMAS, joined by
JUSTICE SCALIA, took the broadest position with respect to
the degree of intent that state officials must have in
order to have violated the Eighth Amendment, concluding
that only a method of execution deliberately designed
to inflict pain, and not one simply designed with deliberate
indifference to the risk of severe pain, would be un-
Cite as: 576 U. S. ____ (2015)
25
SOTOMAYOR, J., dissenting
constitutional. 553 U. S., at 94 (THOMAS, J., concurring
in judgment). But this understanding of the Eighth
Amendment’s intent requirement is unrelated to, and thus
not any broader or narrower than, the requirement the
Court now divines from Baze. Because the position that a
plaintiff challenging a method of execution under the
Eighth Amendment must prove the availability of an
alternative means of execution did not “represent the
views of a majority of the Court,” it was not the holding of
the Baze Court. CTS Corp. v. Dynamics Corp. of America,
481 U. S. 69, 81 (1987).
In any event, even the Baze plurality opinion provides
no support for the Court’s proposition. To be sure, that
opinion contains the following sentence: “[The condemned]
must show that the risk is substantial when compared to
the known and available alternatives.” 553 U. S., at 61.
But the meaning of that key sentence and the limits of the
requirement it imposed are made clear by the sentence
directly preceding it: “A stay of execution may not be
granted on grounds such as those asserted here unless the
condemned prisoner establishes that the State’s lethal
injection protocol creates a demonstrated risk of severe
pain.” Ibid. (emphasis added). In Baze, the very premise
of the petitioners’ Eighth Amendment claim was that they
had “identified a significant risk of harm [in Kentucky’s
protocol] that [could] be eliminated by adopting alternative procedures.” Id., at 51. Their basic theory was that
even if the risk of pain was only, say, 25%, that risk would
be objectively intolerable if there was an obvious alternative that would reduce the risk to 5%. See Brief for Petitioners in Baze v. Rees, O. T. 2007, No. 07–5439, p. 29 (“In
view of the severity of the pain risked and the ease with
which it could be avoided, Petitioners should not have
been required to show a high likelihood that they would
suffer such pain . . . ”). Thus, the “grounds . . . asserted”
for relief in Baze were that the State’s protocol was intol-
26
GLOSSIP v. GROSS
SOTOMAYOR, J., dissenting
erably risky given the alternative procedures the State
could have employed.
Addressing this claim, the Baze plurality clarified that
“a condemned prisoner cannot successfully challenge a
State’s method of execution merely by showing a slightly
or marginally safer alternative,” 553 U. S., at 51; instead,
to succeed in a challenge of this type, the comparative risk
must be “substantial,” id., at 61. Nowhere did the plurality
suggest that all challenges to a State’s method of execution would require this sort of comparative-risk analysis.
Recognizing the relevance of available alternatives is not
at all the same as concluding that their absence precludes
a claimant from showing that a chosen method carries
objectively intolerable risks. If, for example, prison officials chose a method of execution that has a 99% chance of
causing lingering and excruciating pain, certainly that
risk would be objectively intolerable whether or not the
officials ignored other methods in making this choice.
Irrespective of the existence of alternatives, there are
some risks “so grave that it violates contemporary standards of decency to expose anyone unwillingly to” them.
Helling v. McKinney, 509 U. S. 25, 36 (1993) (emphasis in
original).
That the Baze plurality’s statement regarding a condemned inmate’s ability to point to an available alternative means of execution pertained only to challenges premised on the existence of such alternatives is further
evidenced by the opinion’s failure to distinguish or even
mention the Court’s unanimous decision in Hill v.
McDonough, 547 U. S. 573. Hill held that a §1983 plaintiff challenging a State’s method of execution need not
“identif[y] an alternative, authorized method of execution.”
Id., at 582. True, as the Court notes, ante, at 14–15, Hill
did so in the context of addressing §1983’s pleading standard, rejecting the proposed alternative-means requirement
because the Court saw no basis for the “[i]mposition of
Cite as: 576 U. S. ____ (2015)
27
SOTOMAYOR, J., dissenting
heightened pleading requirements.” 547 U. S., at 582.
But that only confirms that the Court in Hill did not view
the availability of an alternative means of execution as an
element of an Eighth Amendment claim: If it had, then
requiring the plaintiff to plead this element would not
have meant imposing a heightened standard at all, but
rather would have been entirely consistent with “traditional pleading requirements.” Ibid.; see Ashcroft v. Iqbal,
556 U. S. 662, 678 (2009). The Baze plurality opinion
should not be understood to have so carelessly tossed aside
Hill’s underlying premise less than two years later.
C
In reengineering Baze to support its newfound rule, the
Court appears to rely on a flawed syllogism. If the death
penalty is constitutional, the Court reasons, then there
must be a means of accomplishing it, and thus some available method of execution must be constitutional. See ante,
at 4, 15–16. But even accepting that the death penalty is,
in the abstract, consistent with evolving standards of
decency, but see ante, p. ___ (BREYER, J., dissenting), the
Court’s conclusion does not follow. The constitutionality of
the death penalty may inform our conception of the degree
of pain that would render a particular method of imposing
it unconstitutional. See Baze, 553 U. S., at 47 (plurality
opinion) (because “[s]ome risk of pain is inherent in any
method of execution,” “[i]t is clear . . . the Constitution
does not demand the avoidance of all risk of pain”). But a
method of execution that is “barbarous,” Rhodes, 452
U. S., at 345, or “involve[s] torture or a lingering death,”
Kemmler, 136 U. S., at 447, does not become less so just
because it is the only method currently available to a
State. If all available means of conducting an execution
constitute cruel and unusual punishment, then conducting
the execution will constitute cruel and usual punishment.
Nothing compels a State to perform an execution. It does
28
GLOSSIP v. GROSS
SOTOMAYOR, J., dissenting
not get a constitutional free pass simply because it desires
to deliver the ultimate penalty; its ends do not justify any
and all means. If a State wishes to carry out an execution,
it must do so subject to the constraints that our Constitution imposes on it, including the obligation to ensure that
its chosen method is not cruel and unusual. Certainly the
condemned has no duty to devise or pick a constitutional
instrument of his or her own death.
For these reasons, the Court’s available-alternative
requirement leads to patently absurd consequences.
Petitioners contend that Oklahoma’s current protocol is a
barbarous method of punishment—the chemical equivalent of being burned alive. But under the Court’s new
rule, it would not matter whether the State intended to
use midazolam, or instead to have petitioners drawn and
quartered, slowly tortured to death, or actually burned at
the stake: because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the State could
execute them using whatever means it designated. But
see Baze, 553 U. S., at 101–102 (THOMAS, J., concurring in
judgment) (“It strains credulity to suggest that the defining characteristic of burning at the stake, disemboweling,
drawing and quartering, beheading, and the like was that
they involved risks of pain that could be eliminated by
using alternative methods of execution”).8 The Eighth
Amendment cannot possibly countenance such a result.
D
In concocting this additional requirement, the Court is
motivated by a desire to preserve States’ ability to conduct
——————
8 The Court protests that its holding does not extend so far, deriding
this description of the logical implications of its legal rule as “simply
not true” and “outlandish rhetoric.” Ante, at 29. But presumably when
the Court imposes a “requirement o[n] all Eighth Amendment methodof-execution claims,” that requirement in fact applies to “all” methods
of execution, without exception. Ante, at 1 (emphasis added).
Cite as: 576 U. S. ____ (2015)
29
SOTOMAYOR, J., dissenting
executions in the face of changing circumstances. See
ante, at 4–6, 27–28. It is true, as the Court details, that
States have faced “practical obstacle[s]” to obtaining lethal
injection drugs since Baze was decided. Ante, at 4. One
study concluded that recent years have seen States change
their protocols “with a frequency that is unprecedented
among execution methods in this country’s history.” Denno,
Lethal Injection Chaos Post-Baze, 102 Geo. L. J. 1331,
1335 (2014).
But why such developments compel the Court’s imposition of further burdens on those facing execution is a
mystery. Petitioners here had no part in creating the
shortage of execution drugs; it is odd to punish them for
the actions of pharmaceutical companies and others who
seek to disassociate themselves from the death penalty—
actions which are, of course, wholly lawful. Nor, certainly,
should these rapidly changing circumstances give us any
greater confidence that the execution methods ultimately
selected will be sufficiently humane to satisfy the Eighth
Amendment. Quite the contrary. The execution protocols
States hurriedly devise as they scramble to locate new and
untested drugs, see supra, at 3, are all the more likely to
be cruel and unusual—presumably, these drugs would
have been the States’ first choice were they in fact more
effective. But see Denno, The Lethal Injection Quandry:
How Medicine Has Dismantled the Death Penalty, 76
Ford. L. Rev. 49, 65–79 (2007) (describing the hurried and
unreasoned process by which States first adopted the
original three-drug protocol). Courts’ review of execution
methods should be more, not less, searching when States
are engaged in what is in effect human experimentation.
It is also worth noting that some condemned inmates
may read the Court’s surreal requirement that they identify the means of their death as an invitation to propose
methods of executions less consistent with modern sensibilities. Petitioners here failed to meet the Court’s new
30
GLOSSIP v. GROSS
SOTOMAYOR, J., dissenting
test because of their assumption that the alternative
drugs to which they pointed, pentobarbital and sodium
thiopental, were available to the State. See ante, at 13–
14. This was perhaps a reasonable assumption, especially
given that neighboring Texas and Missouri still to this day
continue to use pentobarbital in executions. See The
Death Penalty Institute, Execution List 2015, online at
www.deathpenaltyinfo.org/execution-list-2015 (as visited
June 26, 2015, and available in the Clerk of the Court’s
case file).
In the future, however, condemned inmates might well
decline to accept States’ current reliance on lethal injection. In particular, some inmates may suggest the firing
squad as an alternative. Since the 1920’s, only Utah has
utilized this method of execution. See S. Banner, The
Death Penalty 203 (2002); Johnson, Double Murderer
Executed by Firing Squad in Utah, N. Y. Times, June 19,
2010, p. A12. But there is evidence to suggest that the
firing squad is significantly more reliable than other
methods, including lethal injection using the various
combinations of drugs thus far developed. See A. Sarat,
Gruesome Spectacles: Botched Executions and America’s
Death Penalty, App. A, p. 177 (2014) (calculating that
while 7.12% of the 1,054 executions by lethal injection
between 1900 and 2010 were “botched,” none of the 34
executions by firing squad had been). Just as important,
there is some reason to think that it is relatively quick and
painless. See Banner, supra, at 203.
Certainly, use of the firing squad could be seen as a
devolution to a more primitive era. See Wood v. Ryan, 759
F. 3d 1076, 1103 (CA9 2014) (Kozinski, C. J., dissenting
from denial of rehearing en banc). That is not to say, of
course, that it would therefore be unconstitutional. But
lethal injection represents just the latest iteration of the
States’ centuries-long search for “neat and non-disfiguring
homicidal methods.” C. Brandon, The Electric Chair: An
Cite as: 576 U. S. ____ (2015)
31
SOTOMAYOR, J., dissenting
Unnatural American History 39 (1999) (quoting Editorial,
New York Herald, Aug. 10, 1884); see generally Banner,
supra, at 169–207. A return to the firing squad—and the
blood and physical violence that comes with it—is a step in
the opposite direction. And some might argue that the
visible brutality of such a death could conceivably give rise
to its own Eighth Amendment concerns. See Campbell v.
Wood, 511 U. S. 1119, 1121–1123 (1994) (Blackmun, J.,
dissenting from denial of stay of execution and certiorari);
Glass v. Louisiana, 471 U. S. 1080, 1085 (1985) (Brennan,
J., dissenting from denial of certiorari). At least from a
condemned inmate’s perspective, however, such visible yet
relatively painless violence may be vastly preferable to an
excruciatingly painful death hidden behind a veneer of
medication. The States may well be reluctant to pull back
the curtain for fear of how the rest of us might react to
what we see. But we deserve to know the price of our
collective comfort before we blindly allow a State to make
condemned inmates pay it in our names.
*
*
*
“By protecting even those convicted of heinous crimes,
the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.” Roper v. Simmons, 543 U. S. 551, 560 (2005). Today, however, the
Court absolves the State of Oklahoma of this duty. It does
so by misconstruing and ignoring the record evidence
regarding the constitutional insufficiency of midazolam as
a sedative in a three-drug lethal injection cocktail, and by
imposing a wholly unprecedented obligation on the condemned inmate to identify an available means for his or
her own execution. The contortions necessary to save this
particular lethal injection protocol are not worth the price.
I dissent.
Henderson v. U.S., 135 S.Ct. 1780 (2015)
191 L.Ed.2d 874, 83 USLW 4326, 15 Cal. Daily Op. Serv. 4828...
135 S.Ct. 1780
Supreme Court of the United States
Tony HENDERSON, Petitioner
v.
UNITED STATES.
No. 13–1487.
|
Argued Feb. 24, 2015.
|
Decided May 18, 2015.
Synopsis
Background: Convicted felon moved for return of firearms surrendered following his arrest on felony drug charges. On
recommendation of the magistrate judge, the United States District Court for the Middle District of Florida denied motion,
and movant appealed. The United States Court of Appeals for the Eleventh Circuit, 555 Fed.Appx. 851, affirmed. Movant
petitioned for certiorari.
[Holding:] The United States Supreme Court, Justice Kagan, held that court could approve proposed transfer to third party for
purchase of firearms if, but only if, such disposition prevented felon from later exercising control over firearms, abrogating
United States v. Felici, 208 F.3d 667.
Vacated and remanded.
*1781 Syllabus *
After being charged with the felony offense of distributing marijuana, petitioner Tony Henderson was required as a condition of
his bail to turn over firearms that he lawfully owned. Henderson ultimately pleaded guilty, and, as a felon, was prohibited under
18 U.S.C. § 922(g) from possessing his (or any other) firearms. Henderson therefore asked the Federal Bureau of Investigation,
which had custody of his firearms, to transfer them to his friend. But the agency refused to do so. Henderson then filed a
motion in federal district court seeking to transfer his firearms, but the court denied the motion on *1782 the ground that
Henderson's requested transfer would give him constructive possession of the firearms in violation of § 922(g). The Eleventh
Circuit affirmed.
Held : A court-ordered transfer of a felon's lawfully owned firearms from Government custody to a third party is not barred by
§ 922(g) if the court is satisfied that the recipient will not give the felon control over the firearms, so that he could either use
them or direct their use. Federal courts have equitable authority to order law enforcement to return property obtained during the
course of a criminal proceeding to its rightful owner. Section 922(g), however, bars a court from ordering guns returned to a
felon-owner like Henderson, because that would place the owner in violation of the law. And because § 922(g) bans constructive
as well as actual possession, it also prevents a court from ordering the transfer of a felon's guns to someone willing to give the
felon access to them or to accede to the felon's instructions about their future use.
The Government goes further, arguing that § 922(g) prevents all transfers to a third party, no matter how independent of the
felon's influence, unless that recipient is a licensed firearms dealer or other third party who will sell the guns on the open market.
But that view conflates possession, which § 922(g) prohibits, with an owner's right merely to alienate his property, which it
does not. After all, the Government's reading of § 922(g) would prohibit a felon from disposing of his firearms even when he
would lack any control over and thus not possess them before, during, or after the disposition. That reading would also extend
§ 922(g)'s scope far beyond its purpose; preventing a felon like Henderson from disposing of his firearms, even in ways that
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
1
Henderson v. U.S., 135 S.Ct. 1780 (2015)
191 L.Ed.2d 874, 83 USLW 4326, 15 Cal. Daily Op. Serv. 4828...
guarantee he never uses them again, does nothing to advance the statute's goal of keeping firearms away from felons. Finally,
the Government's insistence that a felon cannot select a third-party recipient over whom he exercises no influence fits poorly
with its concession that a felon may select a firearms dealer or third party to sell his guns. The Government's reading of §
922(g) is thus overbroad.
Accordingly, a court may approve the transfer of a felon's guns consistently with § 922(g) if, but only if, the recipient will not
grant the felon control over those weapons. One way to ensure that result is to order that the guns be turned over to a firearms
dealer, himself independent of the felon's control, for subsequent sale on the open market. But that is not the only option; a
court, with proper assurances from the recipient, may also grant a felon's request to transfer his guns to a person who expects to
maintain custody of them. Either way, once a court is satisfied that the transferee will not allow the felon to exert any influence
over the firearms, the court has equitable power to accommodate the felon's transfer request. Pp. 1784 – 1787.
555 Fed.Appx. 851, vacated and remanded.
KAGAN, J., delivered the opinion for a unanimous Court.
Attorneys and Law Firms
Daniel R. Ortiz, Charlottesville, VA, for Petitioner.
Ann O'Connell, Washington, D.C., for Respondent.
John P. Elwood, Vinson & Elkins LLP, Washington, DC, Daniel R. Ortiz, Counsel of Record, Toby J. Heytens, University
of Virginia School of Law Supreme Court Litigation Clinic, Charlottesville, VA, Mark T. Stancil, Robins, Russell, Englert,
Orseck, Untereiner & Sauber LLP, Washington, DC, David T. Goldberg, Donahue & *1783 Goldberg LLP, New York, NY,
for Petitioner.
Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Leslie R. Caldwell, Assistant Attorney General, Michael R.
Dreeben, Deputy Solicitor General, Ann O'Connell, Assistant to the Solicitor General, Vijay Shanker, Attorney, Department
of Justice, Washington, D.C., for Respondent.
Opinion
Justice KAGAN delivered the opinion of the Court.
Government agencies sometimes come into possession of firearms lawfully owned by individuals facing serious criminal
charges. If convicted, such a person cannot recover his guns because a federal statute, 18 U.S.C. § 922(g), prohibits any felon
from possessing firearms. In this case, we consider what § 922(g) allows a court to do when a felon instead seeks the transfer of
his guns to either a firearms dealer (for future sale on the open market) or some other third party. We hold that § 922(g) does not
bar such a transfer unless it would allow the felon to later control the guns, so that he could either use them or direct their use.
I
The Federal Government charged petitioner Tony Henderson, then a U.S. Border Patrol agent, with the felony offense of
distributing marijuana. See 21 U.S.C. §§ 841(a)(1), (b)(1)(D). A Magistrate Judge required that Henderson surrender all his
firearms as a condition of his release on bail. Henderson complied, and the Federal Bureau of Investigation (FBI) took custody
of the guns. Soon afterward, Henderson pleaded guilty to the distribution charge; as a result of that conviction, § 922(g) prevents
him from legally repossessing his firearms.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
2
Henderson v. U.S., 135 S.Ct. 1780 (2015)
191 L.Ed.2d 874, 83 USLW 4326, 15 Cal. Daily Op. Serv. 4828...
Following his release from prison, Henderson asked the FBI to transfer the guns to Robert Rosier, a friend who had agreed
to purchase them for an unspecified price. The FBI denied the request. In a letter to Henderson, it explained that “the release
of the firearms to [Rosier] would place you in violation of [§ 922(g) ], as it would amount to constructive possession” of the
guns. App. 121.
[1] Henderson then returned to the court that had handled his criminal case to seek release of his firearms. Invoking the court's
equitable powers, Henderson asked for an order directing the FBI to transfer the guns either to his wife or to Rosier. The District
Court denied the motion, concluding (as the FBI had) that Henderson could not “transfer the firearms or receive money from
their sale” without “constructive[ly] possessi[ng]” them in violation of § 922(g). No. 3:06–cr–211 (MD Fla., Aug. 8, 2012),
App. to Pet. for Cert. 5a–6a, 12a. The Court of Appeals for the Eleventh Circuit affirmed on the same ground, reasoning that
granting Henderson's motion would amount to giving a felon “constructive possession” of his firearms. 555 Fed.Appx. 851,
853 (2014) (per curiam ). 1
*1784 We granted certiorari, 574 U.S. ––––, 135 S.Ct. 402, 190 L.Ed.2d 289 (2014), to resolve a circuit split over whether,
as the courts below held, § 922(g) categorically prohibits a court from approving a convicted felon's request to transfer his
firearms to another person. 2 We now vacate the decision below.
II
[2] [3] A federal court has equitable authority, even after a criminal proceeding has ended, to order a law enforcement agency
to turn over property it has obtained during the case to the rightful owner or his designee. See, e.g., United States v. Martinez,
241 F.3d 1329, 1330–1331 (C.A.11 2001) (citing numerous appellate decisions to that effect); Tr. of Oral Arg. 41 (Solicitor
General agreeing). Congress, however, may cabin that power in various ways. As relevant here, § 922(g) makes it unlawful for
any person convicted of a felony to “possess in or affecting commerce[ ] any firearm or ammunition.” That provision prevents
a court from instructing an agency to return guns in its custody to a felon-owner like Henderson, because that would place
him in violation of the law. The question here is how § 922(g) affects a court's authority to instead direct the transfer of such
firearms to a third party.
[4] [5] [6] [7] Section 922(g) proscribes possession alone, but covers possession in every form. By its terms, § 922(g)
does not prohibit a felon from owning firearms. Rather, it interferes with a single incident of ownership—one of the proverbial
sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or another person's) guns. But
that stick is a thick one, encompassing what the criminal law recognizes as “actual” and “constructive” possession alike. 2A
K. O'Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, Criminal § 39.12, p. 55 (6th ed. 2009) (hereinafter
O'Malley); see National Safe Deposit Co. v. Stead, 232 U.S. 58, 67, 34 S.Ct. 209, 58 L.Ed. 504 (1914) (noting that in “legal
terminology” the word “possession” is “interchangeably used to describe” both the actual and the constructive kinds). Actual
possession exists when a person has direct physical control over a thing. See Black's Law Dictionary 1047 (5th ed. 1979)
(hereinafter Black's); 2A O'Malley § 39.12, at 55. Constructive possession is established when a person, though lacking such
physical custody, still has the power and intent to exercise control over the object. See Black's 1047; 2A O'Malley § 39.12,
at 55. Section 922(g) thus prevents a felon not only from holding his firearms himself but also from maintaining control over
those guns in the hands of others.
[8] That means, as all parties agree, that § 922(g) prevents a court from ordering the sale or other transfer of a felon's guns
to someone willing to give the felon access to them or to accede to the felon's instructions about their future use. See *1785
Brief for United States 23; Reply Brief 12. In such a case, the felon would have control over the guns, even while another
person kept physical custody. The idea of constructive possession is designed to preclude just that result, “allow[ing] the law
to reach beyond puppets to puppeteers.” United States v. Al–Rekabi, 454 F.3d 1113, 1118 (C.A.10 2006). A felon cannot evade
the strictures of § 922(g) by arranging a sham transfer that leaves him in effective control of his guns. And because that is so,
a court may no more approve such a transfer than order the return of the firearms to the felon himself.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
3
Henderson v. U.S., 135 S.Ct. 1780 (2015)
191 L.Ed.2d 874, 83 USLW 4326, 15 Cal. Daily Op. Serv. 4828...
[9] The Government argues that § 922(g) prohibits still more—that it bars a felon, except in one circumstance, from transferring
his firearms to another person, no matter how independent of the felon's influence. According to the Government, a felon
“exercises his right to control” his firearms, and thus violates § 922(g)'s broad ban on possession, merely by “select[ing] the
[ir] first recipient,” because that choice “determine[s] who [will] (and who [will] not) next have access to the firearms.” Brief
for United States 24. And that remains so even if a felon never retakes physical custody of the guns and needs a court order
to approve and effectuate the proposed transfer. The felon (so says the Government) still exerts enough sway over the guns'
disposition to “have constructive possession” of them. Id., at 25. The only time that is not true, the Government claims, is when
a felon asks the court to transfer the guns to a licensed dealer or other party who will sell the guns for him on the open market.
See id., at 20–22; Tr. of Oral Arg. 18–21. Because the felon then does not control the firearms' final destination, the Government
avers, he does not constructively possess them and a court may approve the transfer. See ibid.
But the Government's theory wrongly conflates the right to possess a gun with another incident of ownership, which § 922(g)
does not affect: the right merely to sell or otherwise dispose of that item. Cf. Andrus v. Allard, 444 U.S. 51, 65–66, 100 S.Ct.
318, 62 L.Ed.2d 210 (1979) (distinguishing between entitlements to possess and sell property). Consider the scenario that the
Government claims would violate § 922(g). The felon has nothing to do with his guns before, during, or after the transaction
in question, except to nominate their recipient. Prior to the transfer, the guns sit in an evidence vault, under the sole custody
of law enforcement officers. Assuming the court approves the proposed recipient, FBI agents handle the firearms' physical
conveyance, without the felon's participation. Afterward, the purchaser or other custodian denies the felon any access to or
influence over the guns; the recipient alone decides where to store them, when to loan them out, how to use them, and so on.
In short, the arrangement serves only to divest the felon of his firearms—and even that much depends on a court's approving
the designee's fitness and ordering the transfer to go forward. Such a felon exercises not a possessory interest (whether directly
or through another), but instead a naked right of alienation—the capacity to sell or transfer his guns, unaccompanied by any
control over them. 3
*1786 The Government's view of what counts as “possession” would also extend § 922(g)'s scope far beyond its purpose.
Congress enacted that ban to keep firearms away from felons like Henderson, for fear that they would use those guns
irresponsibly. See Small v. United States, 544 U.S. 385, 393, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005). Yet on the Government's
construction, § 922(g) would prevent Henderson from disposing of his firearms even in ways that guarantee he never uses them
again, solely because he played a part in selecting their transferee. He could not, for example, place those guns in a secure
trust for distribution to his children after his death. He could not sell them to someone halfway around the world. He could
not even donate them to a law enforcement agency. See Tr. of Oral Arg. 22. Results of that kind would do nothing to advance
§ 922(g)'s purpose.
Finally, the Government's expansive idea of constructive possession fits poorly with its concession that a felon in Henderson's
position may select a firearms dealer or other third party to sell his guns and give him the proceeds. After all, the felon chooses
the guns' “first recipient” in that case too, deciding who “next ha[s] access to the firearms.” Brief for United States 24; see
supra, at 1785. If (as the Government argues) that is all it takes to exercise control over and thus constructively possess an item,
then (contrary to the Government's view) the felon would violate § 922(g) merely by selecting a dealer to sell his guns. To be
sure, that person will predictably convey the firearms to someone whom the felon does not know and cannot control: That is
why the Government, as a practical matter, has no worries about the transfer. See Tr. of Oral Arg. 19–21. But that fact merely
demonstrates how the Government's view of § 922(g) errs in its focus in a case like this one. What matters here is not whether
a felon plays a role in deciding where his firearms should go next: That test would logically prohibit a transfer even when the
chosen recipient will later sell the guns to someone else. What matters instead is whether the felon will have the ability to use
or direct the use of his firearms after the transfer. That is what gives the felon constructive possession.
Accordingly, a court facing a motion like Henderson's may approve the transfer of guns consistently with § 922(g) if, but only
if, that disposition prevents the felon from later exercising control over those weapons, so that he could either use them or tell
someone else how to do so. One way to ensure that result, as the Government notes, is to order that the guns be turned over to
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
4
Henderson v. U.S., 135 S.Ct. 1780 (2015)
191 L.Ed.2d 874, 83 USLW 4326, 15 Cal. Daily Op. Serv. 4828...
a firearms dealer, himself independent of the felon's control, for subsequent sale on the open market. See, e.g., United States
v. Zaleski, 686 F.3d 90, 92–94 (C.A.2 2012). Indeed, we can see no reason, absent exceptional circumstances, to disapprove
a felon's motion for such a sale, *1787 whether or not he has picked the vendor. That option, however, is not the only one
available under § 922(g). A court may also grant a felon's request to transfer his guns to a person who expects to maintain
custody of them, so long as the recipient will not allow the felon to exert any influence over their use. In considering such a
motion, the court may properly seek certain assurances: for example, it may ask the proposed transferee to promise to keep
the guns away from the felon, and to acknowledge that allowing him to use them would aid and abet a § 922(g) violation. See
id., at 94; United States v. Miller, 588 F.3d 418, 420 (C.A.7 2009). Even such a pledge, of course, might fail to provide an
adequate safeguard, and a court should then disapprove the transfer. See, e.g., State v. Fadness, 363 Mont. 322, 341–342, 268
P.3d 17, 30 (2012) (upholding a trial court's finding that the assurances given by a felon's parents were not credible). But when
a court is satisfied that a felon will not retain control over his guns, § 922(g) does not apply, and the court has equitable power
to accommodate the felon's request.
Neither of the courts below assessed Henderson's motion for a transfer of his firearms in accord with these principles. We
therefore vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
All Citations
135 S.Ct. 1780, 191 L.Ed.2d 874, 83 USLW 4326, 15 Cal. Daily Op. Serv. 4828, 2015 Daily Journal D.A.R. 5305, 25 Fla.
L. Weekly Fed. S 259
Footnotes
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience
*
1
2
3
of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
The Court of Appeals added that Henderson's “equitable argument rings hollow” because a convicted felon has “unclean hands to
demand return [or transfer] of his firearms.” 555 Fed.Appx., at 854. That view is wrong, as all parties now agree. See Brief for
Petitioner 35–39; Brief for United States 31, n. 8; Tr. of Oral Arg. 33, 42. The unclean hands doctrine proscribes equitable relief
when, but only when, an individual's misconduct has “immediate and necessary relation to the equity that he seeks.” Keystone Driller
Co. v. General Excavator Co., 290 U.S. 240, 245, 54 S.Ct. 146, 78 L.Ed. 293 (1933). The doctrine might apply, for example, if a
felon requests the return or transfer of property used in furtherance of his offense. See, e.g., United States v. Kaczynski, 551 F.3d
1120, 1129–1130 (C.A.9 2009) (holding that the Unabomber had unclean hands to request the return of bomb-making materials).
But Henderson's felony conviction had nothing to do with his firearms, so the unclean hands rule has no role to play here.
Compare 555 Fed.Appx. 851, 853–854 (C.A.11 2014) (per curiam ) (case below) (holding that § 922(g) bars any transfer); United
States v. Felici, 208 F.3d 667, 670 (C.A.8 2000) (same), with United States v. Zaleski, 686 F.3d 90, 92–94 (C.A.2 2012) (holding
that § 922(g) permits some transfers); United States v. Miller, 588 F.3d 418, 419–420 (C.A.7 2009) (same).
The Government calls our attention to several cases in which courts have found constructive possession of firearms based on evidence
that a felon negotiated and arranged a sale of guns while using a third party to make the physical handoff to the buyer. See, e.g.,
United States v. Nungaray, 697 F.3d 1114, 1116–1119 (C.A.9 2012); United States v. Virciglio, 441 F.2d 1295, 1297–1298 (C.A.5
1971). But the facts in the cited cases bear no similarity to those here. In each, the defendant-felon controlled the guns' movement
both before and during the transaction at issue (and even was present at the delivery site). As the Government explains, the felon
could “make a gun appear” at the time and place of his choosing and decide what would happen to it once it got there. Tr. of Oral
Arg. 27. Indeed, he could have chosen to take the firearms for himself or direct them to someone under his influence. The felon's
management of the sale thus exemplified, and served as evidence of, his broader command over the guns' location and use—the
very hallmark of possession. But as just explained, that kind of control is absent when a felon can do no more than nominate an
independent recipient for firearms in a federal agency's custody. The decisions the Government invokes thus have no bearing on
this case; nor does our decision here, which addresses only § 922(g)'s application to court-supervised transfers of guns, prevent the
Government from bringing charges under § 922(g) in cases resembling those cited.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
5
Henderson v. U.S., 135 S.Ct. 1780 (2015)
191 L.Ed.2d 874, 83 USLW 4326, 15 Cal. Daily Op. Serv. 4828...
End of Document
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
6
(Slip Opinion)
OCTOBER TERM, 2015
1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HURST v. FLORIDA
CERTIORARI TO THE SUPREME COURT OF FLORIDA
No. 14–7505. Argued October 13, 2015—Decided January 12, 2016
Under Florida law, the maximum sentence a capital felon may receive
on the basis of a conviction alone is life imprisonment. He may be
sentenced to death, but only if an additional sentencing proceeding
“results in findings by the court that such person shall be punished
by death.” Fla. Stat. §775.082(1). In that proceeding, the sentencing
judge first conducts an evidentiary hearing before a jury.
§921.141(1). Next, the jury, by majority vote, renders an “advisory
sentence.” §921.141(2). Notwithstanding that recommendation, the
court must independently find and weigh the aggravating and mitigating circumstances before entering a sentence of life or death.
§921.141(3).
A Florida jury convicted petitioner Timothy Hurst of first-degree
murder for killing a co-worker and recommended the death penalty.
The court sentenced Hurst to death, but he was granted a new sentencing hearing on appeal. At resentencing, the jury again recommended death, and the judge again found the facts necessary to sentence Hurst to death. The Florida Supreme Court affirmed, rejecting
Hurst’s argument that his sentence violated the Sixth Amendment in
light of Ring v. Arizona, 536 U. S. 584, in which this Court found unconstitutional an Arizona capital sentencing scheme that permitted a
judge rather than the jury to find the facts necessary to sentence a
defendant to death.
Held: Florida’s capital sentencing scheme violates the Sixth Amendment in light of Ring. Pp. 4–10.
(a) Any fact that “expose[s] the defendant to a greater punishment
than that authorized by the jury’s guilty verdict” is an “element” that
must be submitted to a jury. Apprendi v. New Jersey, 530 U. S. 466,
494. Applying Apprendi to the capital punishment context, the Ring
Court had little difficulty concluding that an Arizona judge’s inde-
2
HURST v. FLORIDA
Syllabus
pendent factfinding exposed Ring to a punishment greater than the
jury’s guilty verdict authorized. 536 U. S., at 604. Ring’s analysis
applies equally here. Florida requires not the jury but a judge to
make the critical findings necessary to impose the death penalty.
That Florida provides an advisory jury is immaterial. See Walton v.
Arizona, 497 U. S. 639, 648. As with Ring, Hurst had the maximum
authorized punishment he could receive increased by a judge’s own
factfinding. Pp. 4–6.
(b) Florida’s counterarguments are rejected. Pp. 6–10.
(1) In arguing that the jury’s recommendation necessarily included an aggravating circumstance finding, Florida fails to appreciate the judge’s central and singular role under Florida law, which
makes the court’s findings necessary to impose death and makes the
jury’s function advisory only. The State cannot now treat the jury’s
advisory recommendation as the necessary factual finding required
by Ring. Pp. 6–7.
(2) Florida’s reliance on Blakely v. Washington, 542 U. S. 296, is
misplaced. There, this Court stated that under Apprendi, a judge
may impose any sentence authorized “on the basis of the facts . . .
admitted by the defendant,” 542 U. S., at 303. Florida alleges that
Hurst’s counsel admitted the existence of a robbery, but Blakely applied Apprendi to facts admitted in a guilty plea, in which the defendant necessarily waived his right to a jury trial, while Florida has
not explained how Hurst’s alleged admissions accomplished a similar
waiver. In any event, Hurst never admitted to either aggravating
circumstance alleged by the State. Pp. 7–8.
(3) That this Court upheld Florida’s capital sentencing scheme in
Hildwin v. Florida, 490 U. S. 638, and Spaziano v. Florida, 468 U. S.
447, does not mean that stare decisis compels the Court to do so here,
see Alleyne v. United States, 570 U. S. ___, ___ (SOTOMAYOR, J., concurring). Time and subsequent cases have washed away the logic of
Spaziano and Hildwin. Those decisions are thus overruled to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury’s factfinding, that is necessary for imposition of the death penalty. Pp. 8–9.
(4) The State’s assertion that any error was harmless is not addressed here, where there is no reason to depart from the Court’s
normal pattern of leaving such considerations to state courts. P. 10.
147 So. 3d 435, reversed and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, THOMAS, GINSBURG, and KAGAN, JJ., joined.
BREYER, J., filed an opinion concurring in the judgment. ALITO, J., filed
a dissenting opinion.
Cite as: 577 U. S. ____ (2016)
1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–7505
_________________
TIMOTHY LEE HURST, PETITIONER v. FLORIDA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA
[January 12, 2016]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
A Florida jury convicted Timothy Lee Hurst of murdering his co-worker, Cynthia Harrison. A penalty-phase jury
recommended that Hurst’s judge impose a death sentence.
Notwithstanding this recommendation, Florida law required the judge to hold a separate hearing and determine
whether sufficient aggravating circumstances existed to
justify imposing the death penalty. The judge so found
and sentenced Hurst to death.
We hold this sentencing scheme unconstitutional. The
Sixth Amendment requires a jury, not a judge, to find each
fact necessary to impose a sentence of death. A jury’s
mere recommendation is not enough.
I
On May 2, 1998, Cynthia Harrison’s body was discovered in the freezer of the restaurant where she worked—
bound, gagged, and stabbed over 60 times. The restaurant
safe was unlocked and open, missing hundreds of dollars.
The State of Florida charged Harrison’s co-worker, Timothy Lee Hurst, with her murder. See 819 So. 2d 689, 692–
694 (Fla. 2002).
During Hurst’s 4-day trial, the State offered substantial
2
HURST v. FLORIDA
Opinion of the Court
forensic evidence linking Hurst to the murder. Witnesses
also testified that Hurst announced in advance that he
planned to rob the restaurant; that Hurst and Harrison
were the only people scheduled to work when Harrison
was killed; and that Hurst disposed of blood-stained evidence and used stolen money to purchase shoes and rings.
Hurst responded with an alibi defense. He claimed he
never made it to work because his car broke down. Hurst
told police that he called the restaurant to let Harrison
know he would be late. He said she sounded scared and
he could hear another person—presumably the real murderer—whispering in the background.
At the close of Hurst’s defense, the judge instructed the
jury that it could find Hurst guilty of first-degree murder
under two theories: premeditated murder or felony murder
for an unlawful killing during a robbery. The jury convicted
Hurst of first-degree murder but did not specify which
theory it believed.
First-degree murder is a capital felony in Florida. See
Fla. Stat. §782.04(1)(a) (2010). Under state law, the maximum sentence a capital felon may receive on the basis of
the conviction alone is life imprisonment. §775.082(1). “A
person who has been convicted of a capital felony shall be
punished by death” only if an additional sentencing proceeding “results in findings by the court that such person
shall be punished by death.” Ibid. “[O]therwise such
person shall be punished by life imprisonment and shall
be ineligible for parole.” Ibid.
The additional sentencing proceeding Florida employs is
a “hybrid” proceeding “in which [a] jury renders an advisory
verdict but the judge makes the ultimate sentencing
determinations.” Ring v. Arizona, 536 U. S. 584, 608, n. 6
(2002). First, the sentencing judge conducts an evidentiary hearing before a jury. Fla. Stat. §921.141(1) (2010).
Next, the jury renders an “advisory sentence” of life or
death without specifying the factual basis of its recom-
Cite as: 577 U. S. ____ (2016)
3
Opinion of the Court
mendation. §921.141(2). “Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall
enter a sentence of life imprisonment or death.”
§921.141(3). If the court imposes death, it must “set forth
in writing its findings upon which the sentence of death is
based.” Ibid. Although the judge must give the jury
recommendation “great weight,” Tedder v. State, 322
So. 2d 908, 910 (Fla. 1975) (per curiam), the sentencing
order must “reflect the trial judge’s independent judgment
about the existence of aggravating and mitigating factors,”
Blackwelder v. State, 851 So. 2d 650, 653 (Fla. 2003) ( per
curiam).
Following this procedure, Hurst’s jury recommended a
death sentence. The judge independently agreed. See 819
So. 2d, at 694–695. On postconviction review, however,
the Florida Supreme Court vacated Hurst’s sentence for
reasons not relevant to this case. See 18 So. 3d 975
(2009).
At resentencing in 2012, the sentencing judge conducted
a new hearing during which Hurst offered mitigating
evidence that he was not a “major participant” in the
murder because he was at home when it happened. App.
505–507. The sentencing judge instructed the advisory
jury that it could recommend a death sentence if it found
at least one aggravating circumstance beyond a reasonable doubt: that the murder was especially “heinous,
atrocious, or cruel” or that it occurred while Hurst was
committing a robbery.
Id., at 211–212.
The jury
recommended death by a vote of 7 to 5.
The sentencing judge then sentenced Hurst to death. In
her written order, the judge based the sentence in part on
her independent determination that both the heinousmurder and robbery aggravators existed. Id., at 261–263.
She assigned “great weight” to her findings as well as to
the jury’s recommendation of death. Id., at 271.
4
HURST v. FLORIDA
Opinion of the Court
The Florida Supreme Court affirmed 4 to 3. 147 So. 3d
435 (2014). As relevant here, the court rejected Hurst’s
argument that his sentence violated the Sixth Amendment
in light of Ring, 536 U. S. 584. Ring, the court recognized,
“held that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an
increase in the maximum punishment.” 147 So. 3d, at
445. But the court considered Ring inapplicable in light of
this Court’s repeated support of Florida’s capital sentencing scheme in pre-Ring cases. 147 So. 3d, at 446–447
(citing Hildwin v. Florida, 490 U. S. 638 (1989) (per curiam)); see also Spaziano v. Florida, 468 U. S. 447, 457–465
(1984). Specifically, in Hildwin, this Court held that the
Sixth Amendment “does not require that the specific
findings authorizing the imposition of the sentence of
death be made by the jury.” 490 U. S., at 640–641. The
Florida court noted that we have “never expressly overruled Hildwin, and did not do so in Ring.” 147 So. 3d, at
446–447.
Justice Pariente, joined by two colleagues, dissented
from this portion of the court’s opinion. She reiterated her
view that “Ring requires any fact that qualifies a capital
defendant for a sentence of death to be found by a jury.”
Id., at 450 (opinion concurring in part and dissenting in
part).
We granted certiorari to resolve whether Florida’s capital sentencing scheme violates the Sixth Amendment in
light of Ring. 575 U. S. ___ (2015). We hold that it does,
and reverse.
II
The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury. . . .” This right, in conjunction with the Due Process Clause, requires that each
element of a crime be proved to a jury beyond a reasonable
Cite as: 577 U. S. ____ (2016)
5
Opinion of the Court
doubt. Alleyne v. United States, 570 U. S. ___, ___ (2013)
(slip op., at 3). In Apprendi v. New Jersey, 530 U. S. 466,
494 (2000), this Court held that any fact that “expose[s]
the defendant to a greater punishment than that authorized by the jury’s guilty verdict” is an “element” that must
be submitted to a jury. In the years since Apprendi, we
have applied its rule to instances involving plea bargains,
Blakely v. Washington, 542 U. S. 296 (2004), sentencing
guidelines, United States v. Booker, 543 U. S. 220 (2005),
criminal fines, Southern Union Co. v. United States, 567
U. S. ___ (2012), mandatory minimums, Alleyne, 570 U. S.,
at ___, and, in Ring, 536 U. S. 584, capital punishment.
In Ring, we concluded that Arizona’s capital sentencing
scheme violated Apprendi’s rule because the State allowed
a judge to find the facts necessary to sentence a defendant
to death. An Arizona jury had convicted Timothy Ring of
felony murder. 536 U. S., at 591. Under state law, “Ring
could not be sentenced to death, the statutory maximum
penalty for first-degree murder, unless further findings
were made.” Id., at 592. Specifically, a judge could sentence Ring to death only after independently finding at
least one aggravating circumstance. Id., at 592–593.
Ring’s judge followed this procedure, found an aggravating
circumstance, and sentenced Ring to death.
The Court had little difficulty concluding that “ ‘the
required finding of an aggravated circumstance exposed
Ring to a greater punishment than that authorized by the
jury’s guilty verdict.’ ” Id., at 604 (quoting Apprendi, 530
U. S., at 494; alterations omitted). Had Ring’s judge not
engaged in any factfinding, Ring would have received a
life sentence. Ring, 536 U. S., at 597. Ring’s death sentence therefore violated his right to have a jury find the
facts behind his punishment.
The analysis the Ring Court applied to Arizona’s sentencing scheme applies equally to Florida’s. Like Arizona
at the time of Ring, Florida does not require the jury to
6
HURST v. FLORIDA
Opinion of the Court
make the critical findings necessary to impose the death
penalty. Rather, Florida requires a judge to find these
facts. Fla. Stat. §921.141(3). Although Florida incorporates an advisory jury verdict that Arizona lacked, we
have previously made clear that this distinction is immaterial: “It is true that in Florida the jury recommends a
sentence, but it does not make specific factual findings
with regard to the existence of mitigating or aggravating
circumstances and its recommendation is not binding on
the trial judge. A Florida trial court no more has the
assistance of a jury’s findings of fact with respect to sentencing issues than does a trial judge in Arizona.” Walton
v. Arizona, 497 U. S. 639, 648 (1990); accord, State v.
Steele, 921 So. 2d 538, 546 (Fla. 2005) (“[T]he trial court
alone must make detailed findings about the existence and
weight of aggravating circumstances; it has no jury findings on which to rely”).
As with Timothy Ring, the maximum punishment Timothy Hurst could have received without any judge-made
findings was life in prison without parole. As with Ring, a
judge increased Hurst’s authorized punishment based on
her own factfinding. In light of Ring, we hold that Hurst’s
sentence violates the Sixth Amendment.
III
Without contesting Ring’s holding, Florida offers a bevy
of arguments for why Hurst’s sentence is constitutional.
None holds water.
A
Florida concedes that Ring required a jury to find every
fact necessary to render Hurst eligible for the death penalty. But Florida argues that when Hurst’s sentencing jury
recommended a death sentence, it “necessarily included a
finding of an aggravating circumstance.” Brief for Respondent 44. The State contends that this finding quali-
Cite as: 577 U. S. ____ (2016)
7
Opinion of the Court
fied Hurst for the death penalty under Florida law, thus
satisfying Ring. “[T]he additional requirement that a
judge also find an aggravator,” Florida concludes, “only
provides the defendant additional protection.” Brief for
Respondent 22.
The State fails to appreciate the central and singular
role the judge plays under Florida law. As described
above and by the Florida Supreme Court, the Florida
sentencing statute does not make a defendant eligible for
death until “findings by the court that such person shall be
punished by death.” Fla. Stat. §775.082(1) (emphasis
added). The trial court alone must find “the facts . . .
[t]hat sufficient aggravating circumstances exist” and
“[t]hat there are insufficient mitigating circumstances to
outweigh the aggravating circumstances.” §921.141(3);
see Steele, 921 So. 2d, at 546. “[T]he jury’s function under
the Florida death penalty statute is advisory only.” Spaziano v. State, 433 So. 2d 508, 512 (Fla. 1983). The State
cannot now treat the advisory recommendation by the jury
as the necessary factual finding that Ring requires.
B
Florida launches its second salvo at Hurst himself,
arguing that he admitted in various contexts that an
aggravating circumstance existed. Even if Ring normally
requires a jury to hear all facts necessary to sentence a
defendant to death, Florida argues, “Ring does not require
jury findings on facts defendants have admitted.” Brief for
Respondent 41. Florida cites our decision in Blakely v.
Washington, 542 U. S. 296 (2004), in which we stated that
under Apprendi, a judge may impose any sentence authorized “on the basis of the facts reflected in the jury verdict
or admitted by the defendant.” 542 U. S., at 303 (emphasis deleted). In light of Blakely, Florida points to various
instances in which Hurst’s counsel allegedly admitted the
existence of a robbery. Florida contends that these “ad-
8
HURST v. FLORIDA
Opinion of the Court
missions” made Hurst eligible for the death penalty. Brief
for Respondent 42–44.
Blakely, however, was a decision applying Apprendi to
facts admitted in a guilty plea, in which the defendant
necessarily waived his right to a jury trial. See 542 U. S.,
at 310–312. Florida has not explained how Hurst’s alleged
admissions accomplished a similar waiver.
Florida’s
argument is also meritless on its own terms. Hurst never
admitted to either aggravating circumstance alleged by
the State. At most, his counsel simply refrained from
challenging the aggravating circumstances in parts of his
appellate briefs. See, e.g., Initial Brief for Appellant in
No. SC12–1947 (Fla.), p. 24 (“not challeng[ing] the trial
court’s findings” but arguing that death was nevertheless
a disproportionate punishment).
C
The State next argues that stare decisis compels us to
uphold Florida’s capital sentencing scheme. As the Florida Supreme Court observed, this Court “repeatedly has
reviewed and upheld Florida’s capital sentencing statute
over the past quarter of a century.” Bottoson v. Moore, 833
So. 2d 693, 695 (2002) (per curiam) (citing Hildwin, 490
U. S. 638; Spaziano, 468 U. S. 447). “In a comparable
situation,” the Florida court reasoned, “the United States
Supreme Court held:
‘If a precedent of this Court has direct application in a
case, yet appears to rest on reasons rejected in some
other line of decisions, the [other courts] should follow
the case which directly controls, leaving to this Court
the prerogative of overruling its own decisions.’ ” Bottoson, 833 So. 2d, at 695 (quoting Rodriguez de Quijas
v. Shearson/American Express, Inc., 490 U. S. 477,
484 (1989)); see also 147 So. 3d, at 446–447 (case
below).
Cite as: 577 U. S. ____ (2016)
9
Opinion of the Court
We now expressly overrule Spaziano and Hildwin in
relevant part.
Spaziano and Hildwin summarized earlier precedent to
conclude that “the Sixth Amendment does not require that
the specific findings authorizing the imposition of the
sentence of death be made by the jury.” Hildwin, 490
U. S., at 640–641. Their conclusion was wrong, and irreconcilable with Apprendi. Indeed, today is not the first
time we have recognized as much. In Ring, we held that
another pre-Apprendi decision—Walton, 497 U. S. 639—
could not “survive the reasoning of Apprendi.” 536 U. S.,
at 603. Walton, for its part, was a mere application of
Hildwin’s holding to Arizona’s capital sentencing scheme.
497 U. S., at 648.
“Although ‘ “the doctrine of stare decisis is of fundamental importance to the rule of law[,]” . . . [o]ur precedents
are not sacrosanct.’ . . . ‘[W]e have overruled prior decisions where the necessity and propriety of doing so has
been established.’ ” Ring, 536 U. S., at 608 (quoting Patterson v. McLean Credit Union, 491 U. S. 164, 172 (1989)).
And in the Apprendi context, we have found that “stare
decisis does not compel adherence to a decision whose
‘underpinnings’ have been ‘eroded’ by subsequent developments of constitutional law.” Alleyne, 570 U. S., at ___
(SOTOMAYOR, J., concurring) (slip op., at 2); see also United
States v. Gaudin, 515 U. S. 506, 519–520 (1995) (overruling Sinclair v. United States, 279 U. S. 263 (1929));
Ring, 536 U. S., at 609 (overruling Walton, 497 U. S., at
639); Alleyne, 570 U. S., at ___ (slip op., at 15) (overruling
Harris v. United States, 536 U. S. 545 (2002)).
Time and subsequent cases have washed away the logic
of Spaziano and Hildwin. The decisions are overruled to
the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury’s factfinding,
that is necessary for imposition of the death penalty.
10
HURST v. FLORIDA
Opinion of the Court
D
Finally, we do not reach the State’s assertion that any
error was harmless. See Neder v. United States, 527 U. S.
1, 18–19 (1999) (holding that the failure to submit an
uncontested element of an offense to a jury may be harmless). This Court normally leaves it to state courts to
consider whether an error is harmless, and we see no
reason to depart from that pattern here. See Ring, 536
U. S., at 609, n. 7.
*
*
*
The Sixth Amendment protects a defendant’s right to an
impartial jury. This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a
judge’s factfinding. Florida’s sentencing scheme, which
required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.
The judgment of the Florida Supreme Court is reversed,
and the case is remanded for further proceedings not
inconsistent with this opinion.
So ordered.
Cite as: 577 U. S. ____ (2016)
1
BREYER, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–7505
_________________
TIMOTHY LEE HURST, PETITIONER v. FLORIDA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA
[January 12, 2016]
JUSTICE BREYER, concurring in the judgment.
For the reasons explained in my opinion concurring in
the judgment in Ring v. Arizona, 536 U. S. 584, 613–619
(2002), I cannot join the Court’s opinion. As in that case,
however, I concur in the judgment here based on my view
that “the Eighth Amendment requires that a jury, not a
judge, make the decision to sentence a defendant to
death.” Id., at 614; see id., at 618 (“[T]he danger of unwarranted imposition of the [death] penalty cannot be
avoided unless ‘the decision to impose the death penalty is
made by a jury rather than by a single government official’ ” (quoting Spaziano v. Florida, 468 U. S. 447, 469
(1984) (Stevens, J., concurring in part and dissenting in
part))). No one argues that Florida’s juries actually sentence capital defendants to death—that job is left to Florida’s judges. See Fla. Stat. §921.141(3) (2010). Like the
majority, therefore, I would reverse the judgment of the
Florida Supreme Court.
Cite as: 577 U. S. ____ (2016)
1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–7505
_________________
TIMOTHY LEE HURST, PETITIONER v. FLORIDA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA
[January 12, 2016]
JUSTICE ALITO, dissenting.
As the Court acknowledges, “this Court ‘repeatedly has
reviewed and upheld Florida’s capital sentencing statute
over the past quarter of a century.’ ” Ante, at 8. And as
the Court also concedes, our precedents hold that “ ‘the
Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be
made by the jury.’ ” Ante, at 9 (quoting Hildwin v. Florida,
490 U. S. 638, 640–641 (1989) (per curiam); emphasis
added); see also Spaziano v. Florida, 468 U. S. 447, 460
(1984). The Court now reverses course, striking down
Florida’s capital sentencing system, overruling our decisions in Hildwin and Spaziano, and holding that the Sixth
Amendment does require that the specific findings authorizing a sentence of death be made by a jury. I disagree.
I
First, I would not overrule Hildwin and Spaziano without reconsidering the cases on which the Court’s present
decision is based. The Court relies on later cases holding
that any fact that exposes a defendant to a greater punishment than that authorized by the jury’s guilty verdict is
an element of the offense that must be submitted to a jury.
Ante, at 5. But there are strong reasons to question
whether this principle is consistent with the original
understanding of the jury trial right. See Alleyne v. United
2
HURST v. FLORIDA
ALITO, J., dissenting
States, 570 U. S. ___, ___–___ (2013) (ALITO, J., dissenting) (slip op., at 1–2). Before overruling Hildwin and
Spaziano, I would reconsider the cases, including most
prominently Ring v. Arizona, 536 U. S. 584 (2002), on
which the Court now relies.
Second, even if Ring is assumed to be correct, I would
not extend it. Although the Court suggests that today’s
holding follows ineluctably from Ring, the Arizona sentencing scheme at issue in that case was much different
from the Florida procedure now before us. In Ring, the
jury found the defendant guilty of felony murder and did
no more. It did not make the findings required by the
Eighth Amendment before the death penalty may be
imposed in a felony-murder case. See id., at 591–592, 594;
Enmund v. Florida, 458 U. S. 782 (1982); Tison v. Arizona,
481 U. S. 137 (1987). Nor did the jury find the presence of
any aggravating factor, as required for death eligibility
under Arizona law. Ring, supra, at 592–593. Nor did it
consider mitigating factors. And it did not determine
whether a capital or noncapital sentence was appropriate.
Under that system, the jury played no role in the capital
sentencing process.
The Florida system is quite different. In Florida, the
jury sits as the initial and primary adjudicator of the
factors bearing on the death penalty. After unanimously
determining guilt at trial, a Florida jury hears evidence of
aggravating and mitigating circumstances. See Fla. Stat.
§921.141(1) (2010). At the conclusion of this separate
sentencing hearing, the jury may recommend a death
sentence only if it finds that the State has proved one or
more aggravating factors beyond a reasonable doubt and
only after weighing the aggravating and mitigating factors. §921.141(2).
Once the jury has made this decision, the trial court
performs what amounts, in practical terms, to a reviewing
function. The judge duplicates the steps previously per-
Cite as: 577 U. S. ____ (2016)
3
ALITO, J., dissenting
formed by the jury and, while the court can impose a
sentence different from that recommended by the jury, the
judge must accord the jury’s recommendation “great
weight.” See Lambrix v. Singletary, 520 U. S. 518, 525–
526 (1997) (recounting Florida law and procedure). Indeed, if the jury recommends a life sentence, the judge
may override that decision only if “the facts suggesting a
sentence of death were so clear and convincing that virtually no reasonable person could differ.” Tedder v. State,
322 So. 2d 908, 910 (Fla. 1975) (per curiam). No Florida
trial court has overruled a jury’s recommendation of a life
sentence for more than 15 years.
Under the Florida system, the jury plays a critically
important role. Our decision in Ring did not decide
whether this procedure violates the Sixth Amendment,
and I would not extend Ring to cover the Florida system.
II
Finally, even if there was a constitutional violation in
this case, I would hold that the error was harmless beyond
a reasonable doubt. See Chapman v. California, 386 U. S.
18, 24 (1967). Although petitioner attacks the Florida
system on numerous grounds, the Court’s decision is based
on a single perceived defect, i.e., that the jury’s determination that at least one aggravating factor was proved is not
binding on the trial judge. Ante, at 6. The Court makes
no pretense that this supposed defect could have prejudiced petitioner, and it seems very clear that it did not.
Attempting to show that he might have been prejudiced
by the error, petitioner suggests that the jury might not
have found the existence of an aggravating factor had it
been instructed that its finding was a prerequisite for the
imposition of the death penalty, but this suggestion is
hard to credit. The jury was told to consider two aggravating factors: that the murder was committed during the
course of a robbery and that it was especially “heinous,
4
HURST v. FLORIDA
ALITO, J., dissenting
atrocious, or cruel.” App. 212. The evidence in support of
both factors was overwhelming.
The evidence with regard to the first aggravating factor—that the murder occurred during the commission of a
robbery—was as follows. The victim, Cynthia Harrison,
an assistant manager of a Popeye’s restaurant, arrived at
work between 7 a.m. and 8:30 a.m. on the date of her
death. When other employees entered the store at about
10:30 a.m., they found that she had been stabbed to death
and that the restaurant’s safe was open and the previous
day’s receipts were missing. At trial, the issue was
whether Hurst committed the murder. There was no
suggestion that the murder did not occur during the robbery. Any alternative scenario—for example, that Cynthia
Harrison was first murdered by one person for some
reason other than robbery and that a second person
came upon the scene shortly after the murder and somehow gained access to and emptied the Popeye’s safe—is
fanciful.
The evidence concerning the second aggravating factor—that the murder was especially “heinous, atrocious, or
cruel”—was also overwhelming. Cynthia Harrison was
bound, gagged, and stabbed more than 60 times. Her
injuries included “facial cuts that went all the way down to
the underlying bone,” “cuts through the eyelid region” and
“the top of her lip,” and “a large cut to her neck which
almost severed her trachea.” Id., at 261. It was estimated
that death could have taken as long as 15 minutes to
occur. The trial court characterized the manner of her
death as follows: “The utter terror and pain that Ms.
Harrison likely experienced during the incident is unfathomable. Words are inadequate to describe this death, but
the photographs introduced as evidence depict a person
bound, rendered helpless, and brutally, savagely, and
unmercifully slashed and disfigured. The murder of Ms.
Harrison was conscienceless, pitiless, and unnecessarily
Cite as: 577 U. S. ____ (2016)
5
ALITO, J., dissenting
torturous.” Id., at 261–262.
In light of this evidence, it defies belief to suggest that
the jury would not have found the existence of either
aggravating factor if its finding was binding. More than
17 years have passed since Cynthia Harrison was brutally
murdered. In the interest of bringing this protracted
litigation to a close, I would rule on the issue of harmless
error and would affirm the decision of the Florida Supreme Court.
Cite as: 578 U. S. ____ (2016)
1
Per Curiam
SUPREME COURT OF THE UNITED STATES
DEBORAH K. JOHNSON, WARDEN v. DONNA KAY LEE
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 15–789.
Decided May 31, 2016
PER CURIAM.
Federal habeas courts generally refuse to hear claims
“defaulted . . . in state court pursuant to an independent
and adequate state procedural rule.” Coleman v. Thompson, 501 U. S. 722, 750 (1991). State rules count as “adequate” if they are “firmly established and regularly followed.” Walker v. Martin, 562 U. S. 307, 316 (2011)
(internal quotation marks omitted). Like all States, California requires criminal defendants to raise available
claims on direct appeal. Under the so-called “Dixon bar,” a
defendant procedurally defaults a claim raised for the first
time on state collateral review if he could have raised it
earlier on direct appeal. See In re Dixon, 41 Cal. 2d 756,
759, 264 P. 2d 513, 514 (1953). Yet, in this case, the Ninth
Circuit held that the Dixon bar is inadequate to bar federal habeas review. Because California’s procedural bar is
longstanding, oft-cited, and shared by habeas courts
across the Nation, this Court now summarily reverses the
Ninth Circuit’s judgment.
I
Respondent Donna Kay Lee and her boyfriend Paul
Carasi stabbed to death Carasi’s mother and his exgirlfriend. A California jury convicted the pair of two
counts each of first-degree murder. Carasi received a
death sentence, and Lee received a sentence of life without
the possibility of parole. In June 1999, Lee unsuccessfully
raised four claims on direct appeal. After the California
2
JOHNSON v. LEE
Per Curiam
appellate courts affirmed, Lee skipped state postconviction
review and filed the federal habeas petition at issue. See
28 U. S. C. §2254(a). The petition raised mostly new
claims that Lee failed to raise on direct appeal. Because
Lee had not exhausted available state-court remedies,
however, the District Court temporarily stayed federal
proceedings to allow Lee to pursue her new claims in a
state habeas petition. The California Supreme Court
denied Lee’s petition in a summary order citing Dixon.
Having exhausted state remedies, Lee returned to federal court to litigate her federal habeas petition. The
District Court dismissed her new claims as procedurally
defaulted. Then, for the first time on appeal, Lee challenged the Dixon bar’s adequacy. In her brief, Lee presented a small sample of the California Supreme Court’s
state habeas denials on a single day about six months
after her default. Lee claimed that out of the 210 summary denials on December 21, 1999, the court failed to cite
Dixon in 9 cases where it should have been applied. The
court instead denied the nine petitions without any citation at all. In Lee’s view, these missing citations proved
that the California courts inconsistently applied the Dixon
bar. Without evaluating this evidence, the Ninth Circuit
reversed and remanded “to permit the Warden to submit
evidence to the contrary, and for consideration by the
district court in the first instance.” Lee v. Jacquez, 406
Fed. Appx. 148, 150 (2010).
On remand, the warden submitted a study analyzing
more than 4,700 summary habeas denials during a nearly
2-year period around the time of Lee’s procedural default.
From August 1998 to June 2000, the study showed, the
California Supreme Court cited Dixon in approximately
12% of all denials—more than 500 times. In light of this
evidence, the District Court held that the Dixon bar is
adequate.
The Ninth Circuit again reversed. Lee v. Jacquez, 788
Cite as: 578 U. S. ____ (2016)
3
Per Curiam
F. 3d 1124 (2015). Lee’s 1-day sample proved the Dixon
bar’s inadequacy, the court held, because the “failure to
cite Dixon where Dixon applies . . . reflects [its] irregular
application.” 788 F. 3d, at 1130. The general 12% citation
rate proved nothing, the court reasoned, because the
warden “d[id] not purport to show to how many cases the
Dixon bar should have been applied.” Id., at 1133. In
the Ninth Circuit’s view, without this “baseline number” the
warden’s 2-year study was “entirely insufficient” to prove
Dixon’s adequacy. 788 F. 3d, at 1133.
II
The Ninth Circuit’s decision profoundly misapprehends
what makes a state procedural bar “adequate.” That
question is a matter of federal law. Lee v. Kemna, 534
U. S. 362, 375 (2002). “To qualify as an ‘adequate’ procedural ground,” capable of barring federal habeas review, “a
state rule must be ‘firmly established and regularly followed.’ ” Martin, supra, at 316 (quoting Beard v. Kindler,
558 U. S. 53, 60 (2009)).
California’s Dixon bar satisfies both adequacy criteria.
It is “firmly established” because, decades before Lee’s
June 1999 procedural default, the California Supreme
Court warned defendants in plain terms that, absent
“special circumstances,” habeas “will not lie where the
claimed errors could have been, but were not, raised upon
a timely appeal from a judgment of conviction.” Dixon,
supra, at 759, 264 P. 2d, at 514. And the California Supreme Court eliminated any arguable ambiguity surrounding this bar by reaffirming Dixon in two cases decided
before Lee’s default. See In re Harris, 5 Cal. 4th 813,
825, n. 3, 829–841, 855 P. 2d 391, 395, n. 3, 398–407
(1993); In re Robbins, 18 Cal. 4th 770, 814–815, and n. 34,
959 P. 2d 311, 340–341, and n. 34 (1998).
The California Supreme Court’s repeated Dixon citations also prove that the bar is “regularly followed.” Mar-
4
JOHNSON v. LEE
Per Curiam
tin recently held that another California procedural bar—
a rule requiring prisoners to file state habeas petitions
promptly—met that requirement because “[e]ach year, the
California Supreme Court summarily denies hundreds of
habeas petitions by citing” the timeliness rule. 562 U. S.,
at 318. The same goes for Dixon. Nine purportedly missing Dixon citations from Lee’s 1-day sample of summary
orders hardly support an inference of inconsistency. See
Dugger v. Adams, 489 U. S. 401, 410, n. 6 (1989) (holding
that the Florida Supreme Court applied its similar procedural bar “consistently and regularly” despite “address[ing] the merits in several cases raising [new] claims
on postconviction review”). Indeed, all nine orders in that
sample were denials. None ignored the Dixon bar to grant
relief, so there is no sign of inconsistency.
Nor is California’s rule unique. Federal and state habeas courts across the country follow the same rule as Dixon.
“The general rule in federal habeas cases is that a defendant who fails to raise a claim on direct appeal is barred
from raising the claim on collateral review.” SanchezLlamas v. Oregon, 548 U. S. 331, 350–351 (2006). Likewise, state postconviction remedies generally “may not be
used to litigate claims which were or could have been
raised at trial or on direct appeal.” 1 D. Wilkes, State
Postconviction Remedies and Relief Handbook §1:2, p. 3
(2015–2016 ed.). It appears that every State shares this
procedural bar in some form. See Brief for State of Alabama et al. as Amici Curiae 1, n. 2 (collecting citations).
For such well-established and ubiquitous rules, it takes
more than a few outliers to show inadequacy. Federal
habeas courts must not lightly “disregard state procedural
rules that are substantially similar to those to which we
give full force in our own courts.” Kindler, 558 U. S., at
62. And it would be “[e]ven stranger to do so with respect
to rules in place in nearly every State.” Ibid. Nothing
suggests, moreover, that California courts apply the Dixon
Cite as: 578 U. S. ____ (2016)
5
Per Curiam
bar in a way that disfavors federal claims. The Court
therefore holds that it qualifies as adequate to bar federal
habeas review.
III
The Ninth Circuit’s contrary reasoning is unpersuasive
and inconsistent with this Court’s precedents. Applying
the Dixon bar may be a “straightforward” or “mechanica[l]” task for state courts. 788 F. 3d, at 1130. But simplicity does not imply that missing citations reflect statecourt inconsistency. To begin with, since the Dixon bar
has several exceptions, see Robbins, supra, at 814–815,
and n. 34, 959 P. 2d, at 340–341, and n. 34, the California
Supreme Court can hardly be faulted for failing to cite
Dixon whenever a petitioner raises a claim that he could
have raised on direct appeal.
More importantly, California courts need not address
procedural default before reaching the merits, so the
purportedly missing citations show nothing. Cf. Bell v.
Cone, 543 U. S. 447, 451, n. 3 (2005) ( per curiam) (declining to address the warden’s procedural-default argument);
Lambrix v. Singletary, 520 U. S. 518, 525 (1997) (explaining that “[ j]udicial economy might counsel” bypassing a
procedural-default question if the merits “were easily
resolvable against the habeas petitioner”). Ordinarily,
“procedural default . . . is not a jurisdictional matter.”
Trest v. Cain, 522 U. S. 87, 89 (1997). As a result, the
appropriate order of analysis for each case remains within
the state courts’ discretion. Such discretion will often lead
to “seeming inconsistencies.” Martin, 562 U. S., at 320,
and n. 7. But that superficial tension does not make a
procedural bar inadequate. “[A] state procedural bar may
count as an adequate and independent ground for denying
a federal habeas petition even if the state court had discretion to reach the merits despite the default.” Id., at
311; see Kindler, supra, at 60–61.
6
JOHNSON v. LEE
Per Curiam
The Ninth Circuit’s attempt to get around Martin and
Kindler fails. The Court of Appeals distinguished those
cases on the ground that California’s Dixon bar is “mandatory” rather than discretionary because it involves a
discretion-free general rule, notwithstanding exceptions that
might involve discretion. 788 F. 3d, at 1130. The Court
assumes, without deciding, that this description is accurate and the Dixon bar’s exceptions leave some room for
discretion. Even so, there is little difference between
discretion exercised through an otherwise adequate procedural bar’s exceptions and discretion that is a part of the
bar itself. In any event, the Ninth Circuit’s reasoning
ignores the state courts’ discretion to assume, without
deciding, that a claim is not procedurally defaulted and
instead hold that the claim lacks merit.
The Ninth Circuit was accordingly wrong to dismiss the
500-plus summary denials citing Dixon simply because
they do not reveal which cases potentially implicate the
bar. 788 F. 3d, at 1133. Martin already rejected this
precise reasoning. There, the habeas petitioner unsuccessfully argued that “[u]se of summary denials makes it
impossible to tell why the California Supreme Court decides some delayed petitions on the merits and rejects
others as untimely.” 562 U. S., at 319 (internal quotation
marks omitted). So too here, “[w]e see no reason to reject
California’s [procedural] bar simply because a court may
opt to bypass the [Dixon] assessment and summarily
dismiss a petition on the merits, if that is the easier path.”
Ibid.
By treating every missing citation as a sign of inconsistency, the Court of Appeals “pose[d] an unnecessary
dilemma” for California. Kindler, 558 U. S., at 61. The
court forced the State to choose between the “finality of
[its] judgments” and a burdensome opinion-writing requirement. Ibid.; see Martin, supra, at 312–313 (noting
that the California Supreme Court “rules on a staggering
Cite as: 578 U. S. ____ (2016)
7
Per Curiam
number of habeas petitions each year”); Harrington v.
Richter, 562 U. S. 86, 99 (2011) (discussing the advantages
of summary dispositions). “[F]ederal courts have no authority,” however, “to impose mandatory opinion-writing
standards on state courts” as the price of federal respect
for their procedural rules. Johnson v. Williams, 568 U. S.
___, ___ (2013) (slip op., at 9). The Ninth Circuit’s decision
is thus fundamentally at odds with the “federalism and
comity concerns that motivate the adequate state ground
doctrine in the habeas context.” Kindler, supra, at 62.
*
*
*
“A State’s procedural rules are of vital importance to the
orderly administration of its criminal courts; when a
federal court permits them to be readily evaded, it undermines the criminal justice system.” Lambrix, supra, at
525. Here, the Ninth Circuit permitted California prisoners to evade a well-established procedural bar that is
adequate to bar federal habeas review. The petition for a
writ of certiorari and respondent’s motion to proceed in
forma pauperis are granted. The judgment of the Court of
Appeals for the Ninth Circuit is reversed, and the case is
remanded for further proceedings consistent with this
opinion.
It is so ordered.
(Slip Opinion)
OCTOBER TERM, 2015
1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
KANSAS v. CARR
CERTIORARI TO THE SUPREME COURT OF KANSAS
No. 14–449.
Argued October 7, 2015—Decided January 20, 2016*
A Kansas jury sentenced respondent Sidney Gleason to death for killing
a co-conspirator and her boyfriend to cover up the robbery of an elderly man.
A Kansas jury sentenced respondents Reginald and Jonathan Carr,
brothers, to death after a joint sentencing proceeding. Respondents
were convicted of various charges stemming from a notorious crime
spree that culminated in the brutal rape, robbery, kidnaping, and execution-style shooting of five young men and women.
The Kansas Supreme Court vacated the death sentences in each
case, holding that the sentencing instructions violated the Eighth
Amendment by failing “to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable doubt.” It also held that the Carrs’ Eighth Amendment right
“to an individualized capital sentencing determination” was violated
by the trial court’s failure to sever their sentencing proceedings.
Held:
1. The Eighth Amendment does not require capital-sentencing
courts to instruct a jury that mitigating circumstances need not be
proved beyond a reasonable doubt. Pp. 8–13.
(a) Because the Kansas Supreme Court left no doubt that its ruling was based on the Federal Constitution, Gleason’s initial argument—that this Court lacks jurisdiction to hear his case because the
state court’s decision rested on adequate and independent state-law
grounds—is rejected. See Kansas v. Marsh, 548 U. S. 163, 169.
Pp. 8–9.
——————
*Together with No. 14–450, Kansas v. Carr, and No. 14–452, Kansas
v. Gleason, also on certiorari to the same court.
2
KANSAS v. CARR
Syllabus
(b) This Court’s capital-sentencing case law does not support requiring a court to instruct a jury that mitigating circumstances need
not be proved beyond a reasonable doubt. See, e.g., Buchanan v. Angelone, 522 U. S. 269, 275. Nor was such an instruction constitutionally necessary in these particular cases to avoid confusion. Ambiguity in capital-sentencing instructions gives rise to constitutional error
only if “there is a reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the consideration of
constitutionally relevant evidence,” Boyde v. California, 494 U. S.
370, 380, a bar not cleared here. Even assuming that it would be unconstitutional to require the defense to prove mitigating circumstances beyond a reasonable doubt, the record belies the defendants’ contention that the instructions caused jurors to apply such a standard
of proof here. The instructions make clear that both the existence of
aggravating circumstances and the conclusion that they outweigh
mitigating circumstances must be proved beyond a reasonable doubt
but that mitigating circumstances must merely be “found to exist,”
which does not suggest proof beyond a reasonable doubt. No juror
would have reasonably speculated that “beyond a reasonable doubt”
was the correct burden for mitigating circumstances. Pp. 9–13.
2. The Constitution did not require severance of the Carrs’ joint
sentencing proceedings. The Eighth Amendment is inapposite when
a defendant’s claim is, at bottom, that evidence was improperly admitted at a capital-sentencing proceeding. The question is whether
the allegedly improper evidence “so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death
penalty a denial of due process.” Romano v. Oklahoma, 512 U. S. 1,
12. In light of all the evidence presented at the guilt and penalty
phases relevant to the jury’s sentencing determination, the contention that the admission of mitigating evidence by one Carr brother
could have “so infected” the jury’s consideration of the other’s sentence as to amount to a denial of due process is beyond the pale. The
Court presumes that the jury followed its instructions to “give separate consideration to each defendant.” Bruton v. United States, 391
U. S. 123, distinguished. Joint proceedings are permissible and often
preferable when the joined defendants’ criminal conduct arises out of
a single chain of events. Buchanan v. Kentucky, 483 U. S. 402, 418.
Limiting instructions, like those given in the Carrs’ proceeding, “often will suffice to cure any risk of prejudice,” Zafiro v. United States,
506 U. S. 534, 539, that might arise from codefendants’ “antagonistic”
mitigation theories, id., at 538. It is improper to vacate a death sentence based on pure “speculation” of fundamental unfairness, “rather
than reasoned judgment.” Romano, supra, at 13–14. Only the most
extravagant speculation would lead to the conclusion that any sup-
Cite as: 577 U. S. ____ (2016)
3
Syllabus
posedly prejudicial evidence rendered the Carr brothers’ joint sentencing proceeding fundamentally unfair when their acts of almost
inconceivable cruelty and depravity were described in excruciating
detail by the sole survivor, who, for two days, relived the Wichita
Massacre with the jury. Pp. 13–17.
No. 14–449, 300 Kan. 340, 329 P. 3d 1195; No. 14–450, 300 Kan. 1, 331
P. 3d 544; and No. 14–452, 299 Kan. 1127, 329 P. 3d 1102, reversed
and remanded.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, ALITO, and KAGAN,
JJ., joined. SOTOMAYOR, J., filed a dissenting opinion.
Cite as: 577 U. S. ____ (2016)
1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 14–449, 14–450, and 14–452
_________________
14–449
KANSAS, PETITIONER
v.
JONATHAN D. CARR
14–450
KANSAS, PETITIONER
v.
REGINALD DEXTER CARR, JR.
14–452
KANSAS, PETITIONER
v.
SIDNEY J. GLEASON
ON WRITS OF CERTIORARI TO THE SUPREME COURT OF KANSAS
[January 20, 2016]
JUSTICE SCALIA delivered the opinion of the Court.
The Supreme Court of Kansas vacated the death sentences of Sidney Gleason and brothers Reginald and Jonathan Carr. Gleason killed one of his co-conspirators and
her boyfriend to cover up the robbery of an elderly man.
The Carrs’ notorious Wichita crime spree culminated in
the brutal rape, robbery, kidnaping, and execution-style
shooting of five young men and women. We first consider
whether the Constitution required the sentencing courts
to instruct the juries that mitigating circumstances “need
not be proved beyond a reasonable doubt.” And second,
2
KANSAS v. CARR
Opinion of the Court
whether the Constitution required severance of the Carrs’
joint sentencing proceedings.
I
A
Less than one month after Sidney Gleason was paroled
from his sentence for attempted voluntary manslaughter,
he joined a conspiracy to rob an elderly man at knifepoint.1 Gleason and a companion “cut up” the elderly man
to get $10 to $35 and a box of cigarettes. 299 Kan. 1127,
1136, 329 P. 3d 1102, 1115 (2014). Fearing that their
female co-conspirators would snitch, Gleason and his
cousin, Damien Thompson, set out to kill co-conspirator
Mikiala Martinez. Gleason shot and killed Martinez’s
boyfriend, and then Gleason and Thompson drove Martinez to a rural location, where Thompson strangled her
for five minutes and then shot her in the chest, Gleason
standing by and providing the gun for the final shot.
The State ultimately charged Gleason with capital
murder for killing Martinez and her boyfriend, first-degree
premeditated murder of the boyfriend, aggravating kidnaping of Martinez, attempted first-degree murder and
aggravated robbery of the elderly man, and criminal possession of a firearm. He was convicted on all counts except
the attempted first-degree murder charge. Id., at 1134–
1135, 1146, 329 P. 3d, at 1114, 1120. The jury also found
that the State proved beyond a reasonable doubt the
existence of four aggravating circumstances and unanimously agreed to a sentence of death. Id., at 1146–1147,
329 P. 3d, at 1120–1121.
B
In December 2000, brothers Reginald and Jonathan
——————
1 The facts for this portion of the opinion come from the Kansas Supreme Court, 299 Kan. 1127, 1134–1147, 329 P. 3d 1102, 1113–1121
(2014), and the parties’ briefs.
Cite as: 577 U. S. ____ (2016)
3
Opinion of the Court
Carr set out on a crime spree culminating in the Wichita
Massacre.2 On the night of December 7, Reginald Carr
and an unknown man carjacked Andrew Schreiber, held a
gun to his head, and forced him to make cash withdrawals
at various ATMs.
On the night of December 11, the brothers followed
Linda Ann Walenta, a cellist for the Wichita symphony,
home from orchestra practice. One of them approached
her vehicle and said he needed help. When she rolled
down her window, he pointed a gun at her head. When
she shifted into reverse to escape, he shot her three times,
ran back to his brother’s car, and fled the scene. One of
the gunshots severed Walenta’s spine, and she died one
month later as a result of her injuries.
On the night of December 14, the brothers burst into a
triplex at 12727 Birchwood, where roommates Jason,
Brad, and Aaron lived. Jason’s girlfriend, Holly, and
Heather, a friend of Aaron’s, were also in the house.
Armed with handguns and a golf club, the brothers forced
all five into Jason’s bedroom. They demanded that they
strip naked and later ordered them into the bedroom
closet. They took Holly and Heather from the bedroom,
demanded that they perform oral sex and digitally penetrate each other as the Carrs looked on and barked orders.
They forced each of the men to have sex with Holly and
then with Heather. They yelled that the men would be
shot if they could not have sex with the women, so Holly—
fearing for Jason’s life—performed oral sex on him in the
closet before he was ordered out by the brothers.
Jonathan then snatched Holly from the closet. He
ordered that she digitally penetrate herself. He set his
——————
2 The facts for this portion of the opinion come from the Kansas Supreme Court, 300 Kan. 1, 18–38, 331 P. 3d 544, 575–586 (2014), and
witness testimony. See 21–A Tr. 59–75 (Oct. 7, 2002), 22–B Tr. 39–124
(Oct. 8, 2002), 23–A Tr. 4–118 (Oct. 9, 2002), 23–B Tr. 5–133 (Oct. 9,
2002), and 24–A Tr. 4–93 (Oct. 10, 2002).
4
KANSAS v. CARR
Opinion of the Court
gun between her knees on the floor. And he raped her.
Then he raped Heather.
Reginald took Brad, Jason, Holly, and Aaron one-by-one
to various ATMs to withdraw cash. When the victims
returned to the house, their torture continued. Holly urinated in the closet because of fright. Jonathan found an
engagement ring hidden in the bedroom that Jason was
keeping as a surprise for Holly. Pointing his gun at Jason,
he had Jason identify the ring while Holly was sitting
nearby in the closet. Then Reginald took Holly from the
closet, said he was not going to shoot her yet, and raped
her on the dining-room floor strewn with boxes of Christmas decorations. He forced her to turn around, ejaculated
into her mouth, and forced her to swallow. In a nearby
bathroom, Jonathan again raped Heather and then again
raped Holly.
At 2 a.m.—three hours after the mayhem began—the
brothers decided it was time to leave the house. They
attempted to put all five victims in the trunk of Aaron’s
Honda Civic. Finding that they would not all fit, they
jammed the three young men into the trunk. They directed Heather to the front of the car and Holly to Jason’s
pickup truck, driven by Reginald. Once the vehicles arrived at a snow-covered field, they instructed Jason and
Brad, still naked, and Aaron to kneel in the snow. Holly
cried, “Oh, my God, they’re going to shoot us.” Holly and
Heather were then ordered to kneel in the snow. Holly
went to Jason’s side; Heather, to Aaron.
Holly heard the first shot, heard Aaron plead with the
brothers not to shoot, heard the second shot, heard the
screams, heard the third shot, and the fourth. She felt the
blow of the fifth shot to her head, but remained kneeling.
They kicked her so she would fall face-first into the snow
and ran her over in the pickup truck. But she survived,
because a hair clip she had fastened to her hair that night
deflected the bullet. She went to Jason, took off her
Cite as: 577 U. S. ____ (2016)
5
Opinion of the Court
sweater, the only scrap of clothing the brothers had let her
wear, and tied it around his head to stop the bleeding from
his eye. She rushed to Brad, then Aaron, and then
Heather.
Spotting a house with white Christmas lights in the
distance, Holly started running toward it for help—naked,
skull shattered, and without shoes, through the snow and
over barbed-wire fences. Each time a car passed on the
nearby road, she feared it was the brothers returning and
camouflaged herself by lying down in the snow. She made
it to the house, rang the doorbell, knocked. A man opened
the door, and she relayed as quickly as she could the
events of the night to him, and minutes later to a 911
dispatcher, fearing that she would not live.
Holly lived, and retold this play-by-play of the night’s
events to the jury. Investigators also testified that the
brothers returned to the Birchwood house after leaving
the five friends for dead, where they ransacked the place
for valuables and (for good measure) beat Holly’s dog,
Nikki, to death with a golf club.
The State charged each of the brothers with more than
50 counts, including murder, rape, sodomy, kidnaping,
burglary, and robbery, and the jury returned separate
guilty verdicts. It convicted Reginald of one count of kidnaping, aggravated robbery, aggravated battery, and
criminal damage to property for the Schreiber carjacking,
and one count of first-degree felony murder for the Walenta
shooting. Jonathan was acquitted of all counts related
to the Schreiber carjacking but convicted of first-degree
felony murder for the Walenta shooting. For the Birchwood murders, the jury convicted each brother of 4 counts
of capital murder, 1 count of attempted first-degree murder, 5 counts of aggravated kidnaping, 9 counts of aggravated robbery, 20 counts of rape or attempted rape, 3
counts of aggravated criminal sodomy, 1 count each of
aggravated burglary and burglary, 1 count of theft, and 1
6
KANSAS v. CARR
Opinion of the Court
count of cruelty to animals. The jury also convicted Reginald of three counts of unlawful possession of a firearm.
300 Kan. 1, 15–16, 331 P. 3d 544, 573–574 (2014).
The State sought the death penalty for each of the four
Birchwood murders, and the brothers were sentenced
together. The State relied on the guilt-phase evidence,
including Holly’s two days of testimony, as evidence of four
aggravating circumstances: that the defendants knowingly
or purposely killed or created a great risk of death to more
than one person; that they committed the crimes for the
purpose of receiving money or items of monetary value;
that they committed the crimes to prevent arrest or prosecution; and that they committed the crimes in an especially heinous, atrocious, or cruel manner. Id., at 258–259,
331 P. 3d, at 708. After hearing each brother’s case for
mitigation, the jury issued separate verdicts of death for
Reginald and Jonathan. It found unanimously that the
State proved the existence of the four aggravating circumstances beyond a reasonable doubt and that those aggravating circumstances outweighed the mitigating circumstances, justifying four separate verdicts of death for each
brother for the murders of Jason, Brad, Aaron, and
Heather. App. in No. 14–449 etc., pp. 461–492.
C
The Kansas Supreme Court vacated the death penalties
in both cases. It held that the instructions used in both
Gleason’s and the Carrs’ sentencing violated the Eighth
Amendment because they “failed to affirmatively inform
the jury that mitigating circumstances need only be
proved to the satisfaction of the individual juror in that
juror’s sentencing decision and not beyond a reasonable
doubt.” 299 Kan., at 1196, 329 P. 3d, at 1147 (Gleason);
300 Kan., at 303, 331 P. 3d, at 733 (Reginald Carr); 300
Kan. 340, 369–370, 329 P. 3d 1195, 1213 (2014) (Jonathan
Carr). Without that instruction, according to the court,
Cite as: 577 U. S. ____ (2016)
7
Opinion of the Court
the jury “was left to speculate as to the correct burden of
proof for mitigating circumstances, and reasonable jurors
might have believed they could not consider mitigating
circumstances not proven beyond a reasonable doubt.”
299 Kan., at 1197, 329 P. 3d, at 1148. This, the court
concluded, might have caused jurors to exclude relevant
mitigating evidence from their consideration. Ibid.
The Kansas Supreme Court also held that the Carrs’
death sentences had to be vacated because of the trial
court’s failure to sever their sentencing proceedings,
thereby violating the brothers’ Eighth Amendment right
“to an individualized capital sentencing determination.”
300 Kan., at 275, 331 P. 3d, at 717; 300 Kan., at 368, 329
P. 3d, at 1212. According to the court, the joint trial “inhibited the jury’s individualized consideration of [Jonathan] because of family characteristics tending to demonstrate future dangerousness that he shared with his
brother”; and his brother’s visible handcuffs prejudiced the
jury’s consideration of his sentence. 300 Kan., at 275, 331
P. 3d, at 717. As for Reginald, he was prejudiced, according to the Kansas Supreme Court, by Jonathan’s portrayal
of him as the corrupting older brother. Id., at 276, 331
P. 3d, at 717. Moreover, Reginald was prejudiced by his
brother’s cross-examination of their sister, who testified
that she thought Reginald had admitted to her that he
was the shooter. Id., at 279, 331 P. 3d, at 719. (She later
backtracked and testified, “ ‘I don’t remember who was,
you know, shot by who[m].’ ” Ibid.) The Kansas Supreme
Court opined that the presumption that the jury followed
its instructions to consider each defendant separately was
“defeated by logic.” Id., at 280, 331 P. 3d, at 719. “[T]he
defendants’ joint upbringing in the maelstrom that was
their family and their influence on and interactions with
one another . . . simply was not amenable to orderly separation and analysis.” Ibid., 331 P. 3d, at 719–720. The
Kansas Supreme Court found itself unable to “say that the
8
KANSAS v. CARR
Opinion of the Court
death verdict was unattributable, at least in part, to this
error.” Id., at 282, 331 P. 3d, at 720. We granted certiorari. 575 U. S. ___ (2015).
II
We first turn to the Kansas Supreme Court’s contention
that the Eighth Amendment required these capitalsentencing courts to instruct the jury that mitigating
circumstances need not be proved beyond a reasonable
doubt.
A
Before considering the merits of that contention, we
consider Gleason’s challenge to our jurisdiction. According
to Gleason, the Kansas Supreme Court’s decision rests on
adequate and independent state-law grounds. This argument is a familiar one. We rejected it in Kansas v. Marsh,
548 U. S. 163, 169 (2006). Like the defendant in that case,
Gleason urges that the decision below rests only on a rule
of Kansas law announced in State v. Kleypas, 272 Kan.
894, 40 P. 3d 139 (2001) (per curiam)—a rule later reiterated in State v. Scott, 286 Kan. 54, 183 P. 3d 801 (2008)
( per curiam). As we stated in Marsh, “Kleypas, itself,
rested on federal law.” 548 U. S., at 169. So too does the
relevant passage of Scott, which rested on Kleypas’s discussion of the constitutional rule that jurors need not
agree on mitigating circumstances. See Scott, supra, at
106–107, 183 P. 3d, at 837–838. The Kansas Supreme
Court’s opinion in this case acknowledged as much, saying
that “statements from Kleypas implicate the broader
Eighth Amendment principle prohibiting barriers that
preclude a sentencer’s consideration of all relevant mitigating evidence.” 299 Kan., at 1195, 329 P. 3d, at 1147.
The Kansas Supreme Court’s opinion leaves no room for
doubt that it was relying on the Federal Constitution. It
stated that the instruction it required “protects a capital
Cite as: 577 U. S. ____ (2016)
9
Opinion of the Court
defendant’s Eighth Amendment right to individualized
sentencing,” that the absence of the instruction “implicat[ed] Gleason’s right to individualized sentencing
under the Eighth Amendment,” and that vacatur of
Gleason’s death sentence was the “[c]onsequen[ce]” of
Eighth Amendment error. Id., at 1196–1197, 329 P. 3d, at
1147–1148 (emphasis added).
For this reason, the criticism leveled by the dissent is
misdirected. It generally would have been “none of our
business” had the Kansas Supreme Court vacated
Gleason’s and the Carrs’ death sentences on state-law
grounds. Marsh, 548 U. S., at 184 (SCALIA, J., concurring).
But it decidedly did not. And when the Kansas Supreme
Court time and again invalidates death sentences because
it says the Federal Constitution requires it, “review by this
Court, far from undermining state autonomy, is the only
possible way to vindicate it.” Ibid. “When we correct a
state court’s federal errors, we return power to the State,
and to its people.” Ibid. The state courts may experiment
all they want with their own constitutions, and often do in
the wake of this Court’s decisions. See Sutton, San Antonio Independent School District v. Rodriguez And Its
Aftermath, 94 Va. L. Rev. 1963, 1971–1977 (2008). But
what a state court cannot do is experiment with our Federal Constitution and expect to elude this Court’s review
so long as victory goes to the criminal defendant. “Turning a blind eye” in such cases “would change the uniform
‘law of the land’ into a crazy quilt.” Marsh, supra, at 185.
And it would enable state courts to blame the unpopular
death-sentence reprieve of the most horrible criminals
upon the Federal Constitution when it is in fact their own
doing.
B
We turn, then, to the merits of the Kansas Supreme
Court’s conclusion that the Eighth Amendment requires
10
KANSAS v. CARR
Opinion of the Court
capital-sentencing courts in Kansas “to affirmatively
inform the jury that mitigating circumstances need not be
proven beyond a reasonable doubt.” 299 Kan., at 1197,
329 P. 3d, at 1148.
Approaching the question in the abstract, and without
reference to our capital-sentencing case law, we doubt
whether it is even possible to apply a standard of proof to
the mitigating-factor determination (the so-called “selection phase” of a capital-sentencing proceeding). It is possible to do so for the aggravating-factor determination (the
so-called “eligibility phase”), because that is a purely
factual determination. The facts justifying death set forth
in the Kansas statute either did or did not exist—and one
can require the finding that they did exist to be made
beyond a reasonable doubt. Whether mitigation exists,
however, is largely a judgment call (or perhaps a value
call); what one juror might consider mitigating another
might not. And of course the ultimate question whether
mitigating circumstances outweigh aggravating circumstances is mostly a question of mercy—the quality of
which, as we know, is not strained. It would mean nothing, we think, to tell the jury that the defendants must
deserve mercy beyond a reasonable doubt; or must morelikely-than-not deserve it. It would be possible, of course,
to instruct the jury that the facts establishing mitigating
circumstances need only be proved by a preponderance,
leaving the judgment whether those facts are indeed
mitigating, and whether they outweigh the aggravators, to
the jury’s discretion without a standard of proof. If we
were to hold that the Constitution requires the mitigatingfactor determination to be divided into its factual component and its judgmental component, and the former to be
accorded a burden-of-proof instruction, we doubt whether
that would produce anything but jury confusion. In the
last analysis, jurors will accord mercy if they deem it
appropriate, and withhold mercy if they do not, which is
Cite as: 577 U. S. ____ (2016)
11
Opinion of the Court
what our case law is designed to achieve.
In any event, our case law does not require capital
sentencing courts “to affirmatively inform the jury that
mitigating circumstances need not be proved beyond a
reasonable doubt.” Ibid. In Buchanan v. Angelone, 522
U. S. 269 (1998), we upheld a death sentence even though
the trial court “failed to provide the jury with express
guidance on the concept of mitigation.” Id., at 275. Likewise in Weeks v. Angelone, 528 U. S. 225 (2000), we reaffirmed that the Court has “never held that the State must
structure in a particular way the manner in which juries
consider mitigating evidence” and rejected the contention
that it was constitutionally deficient to instruct jurors to
“ ‘consider a mitigating circumstance if you find there is
evidence to support it,’ ” without additional guidance. Id.,
at 232–233.
Equally unavailing is the contention that even if an
instruction that mitigating evidence need not be “proven
beyond a reasonable doubt” is not always required, it was
constitutionally necessary in these cases to avoid confusion. Ambiguity in capital-sentencing instructions gives
rise to constitutional error only if “there is a reasonable
likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of
constitutionally relevant evidence.” Boyde v. California,
494 U. S. 370, 380 (1990) (emphasis added). The alleged
confusion stemming from the jury instructions used at the
defendants’ sentencings does not clear that bar. A meager
“possibility” of confusion is not enough. Ibid.
As an initial matter, the defendants’ argument rests on
the assumption that it would be unconstitutional to require the defense to prove mitigating circumstances beyond a reasonable doubt. Assuming without deciding that
that is the case, the record belies the defendants’ contention that the instructions caused jurors to apply that
standard of proof. The defendants focus upon the follow-
12
KANSAS v. CARR
Opinion of the Court
ing instruction: “The State has the burden to prove beyond
a reasonable doubt that there are one or more aggravating
circumstances and that they are not outweighed by any
mitigating circumstances found to exist.” App. to Pet. for
Cert. in No. 14–452, p. 133 (Instr. 8).3 The juxtaposition of
aggravating and mitigating circumstances, so goes the
argument, caused the jury to speculate that mitigating
circumstances must also be proved beyond a reasonable
doubt. 299 Kan., at 1197, 329 P. 3d, at 1148. It seems to
us quite the opposite. The instruction makes clear that
both the existence of aggravating circumstances and the
conclusion that they outweigh mitigating circumstances
must be proved beyond a reasonable doubt; mitigating
circumstances themselves, on the other hand, must merely
be “found to exist.” That same description, mitigating
circumstances “found to exist,” is contained in three other
instructions, App. to Pet. for Cert. in No. 14–452, at 133
(Instrs. 7, 9, and 10) (emphasis added)—unsurprisingly,
since it recites the Kansas statute, see Kan. Stat. Ann.
§21–4624(e) (1995). “Found to exist” certainly does not
suggest proof beyond a reasonable doubt. The instructions
as a whole distinguish clearly between aggravating and
mitigating circumstances: “The State has the burden to
prove beyond a reasonable doubt that there are one or
more aggravating circumstances . . . ,” and the jury must
decide unanimously that the State met that burden. App.
to Pet. for Cert. in No. 14–452, at 133 (Instrs. 8 and 10)
(emphasis added). “Mitigating circumstances,” on the
other hand, “do not need to be found by all members of the
jury” to “be considered by an individual juror in arriving at
his or her sentencing decision.” Id., at 131 (Instr. 7). Not
once do the instructions say that defense counsel bears the
——————
3 The relevant penalty-phase instructions from the Carrs’ sentencing
proceedings are materially indistinguishable. See App. to Pet. for Cert.
in No. 14–450, pp. 501–510.
Cite as: 577 U. S. ____ (2016)
13
Opinion of the Court
burden of proving the facts constituting a mitigating
circumstance beyond a reasonable doubt—nor would that
make much sense, since one of the mitigating circumstances is (curiously) “mercy,” which simply is not a factual determination.
We reject the Kansas Supreme Court’s decision that
jurors were “left to speculate as to the correct burden of
proof for mitigating circumstances.” 299 Kan., at 1197,
329 P. 3d, at 1148. For the reasons we have described, no
juror would reasonably have speculated that mitigating
circumstances must be proved by any particular standard,
let alone beyond a reasonable doubt. The reality is that
jurors do not “pars[e] instructions for subtle shades of
meaning in the same way that lawyers might.” Boyde,
supra, at 381. The instructions repeatedly told the jurors
to consider any mitigating factor, meaning any aspect of
the defendants’ background or the circumstances of their
offense. Jurors would not have misunderstood these
instructions to prevent their consideration of constitutionally relevant evidence.
III
We turn next to the contention that a joint capitalsentencing proceeding in the Carrs’ cases violated the
defendants’ Eighth Amendment right to an “individualized
sentencing determination.” 300 Kan., at 276, 331 P. 3d, at
717.
The Kansas Supreme Court agreed with the defendants
that, because of the joint sentencing proceeding, one defendant’s mitigating evidence put a thumb on death’s scale
for the other, in violation of the other’s Eighth Amendment rights. Ibid. It accepted Reginald’s contention that
he was prejudiced by his brother’s portrayal of him as the
corrupting older brother. And it agreed that Reginald was
prejudiced by his brother’s cross-examination of their
sister, who equivocated about whether Reginald admitted
14
KANSAS v. CARR
Opinion of the Court
to her that he was the shooter. (Reginald has all but
abandoned that implausible theory of prejudice before this
Court and contends only that the State “likely would not
have introduced any such testimony” had he been sentenced alone. Brief for Respondent in No. 14–450, p. 34,
n. 3.) Jonathan asserted that he was prejudiced by evidence associating him with his dangerous older brother,
which caused the jury to perceive him as an incurable
sociopath.4 Both speculate that the evidence assertedly
prejudicial to them would have been inadmissible in severed proceedings under Kansas law. The Kansas Supreme
Court also launched a broader attack on the joint proceedings, contending that the joinder rendered it impossible for
the jury to consider the Carrs’ relative moral culpability
and to determine individually whether they were entitled
to “mercy.” 300 Kan., at 278, 331 P. 3d, at 718–719.
Whatever the merits of defendants’ procedural objections, we will not shoehorn them into the Eighth Amendment’s prohibition of “cruel and unusual punishments.”
As the United States as amicus curiae intimates, the
Eighth Amendment is inapposite when each defendant’s
claim is, at bottom, that the jury considered evidence that
would not have been admitted in a severed proceeding,
and that the joint trial clouded the jury’s consideration of
mitigating evidence like “mercy.” Brief for United States
24, n. 8. As we held in Romano v. Oklahoma, 512 U. S. 1
(1994), it is not the role of the Eighth Amendment to
establish a special “federal code of evidence” governing
“the admissibility of evidence at capital sentencing proceedings.” Id., at 11–12. Rather, it is the Due Process
——————
4 Jonathan also alleges that he was prejudiced by the jury’s witnessing his brother’s handcuffs, which his brother requested remain visible
before the penalty phase commenced. That allegation is mystifying.
That his brother’s handcuffs were visible (while his own restraints were
not) more likely caused the jury to see Jonathan as the less dangerous
of the two.
Cite as: 577 U. S. ____ (2016)
15
Opinion of the Court
Clause that wards off the introduction of “unduly prejudicial” evidence that would “rende[r] the trial fundamentally
unfair.” Payne v. Tennessee, 501 U. S. 808, 825 (1991); see
also Brown v. Sanders, 546 U. S. 212, 220–221 (2006).
The test prescribed by Romano for a constitutional
violation attributable to evidence improperly admitted at a
capital-sentencing proceeding is whether the evidence “so
infected the sentencing proceeding with unfairness as to
render the jury’s imposition of the death penalty a denial
of due process.” 512 U. S., at 12. The mere admission of
evidence that might not otherwise have been admitted in a
severed proceeding does not demand the automatic vacatur of a death sentence.
In light of all the evidence presented at the guilt and
penalty phases relevant to the jury’s sentencing determination, the contention that the admission of mitigating
evidence by one brother could have “so infected” the jury’s
consideration of the other’s sentence as to amount to a
denial of due process is beyond the pale. To begin with,
the court instructed the jury that it “must give separate
consideration to each defendant,” that each was “entitled
to have his sentence decided on the evidence and law
which is applicable to him,” and that any evidence in the
penalty phase “limited to only one defendant should not be
considered by you as to the other defendant.” App. to Pet.
for Cert. in No. 14–450, at 501 (Instr. 3). The court gave
defendant-specific instructions for aggravating and mitigating circumstances. Id., at 502–508 (Instrs. 5, 6, 7, and
8). And the court instructed the jury to consider the “individual” or “particular defendant” by using four separate
verdict forms for each defendant, one for each murdered
occupant of the Birchwood house. Id., at 509 (Instr. 10);
App. in No. 14–449 etc., at 461–492. We presume the jury
followed these instructions and considered each defendant
separately when deciding to impose a sentence of death for
each of the brutal murders. Romano, supra, at 13.
16
KANSAS v. CARR
Opinion of the Court
The contrary conclusion of the Kansas Supreme Court—
that the presumption that jurors followed these instructions was “defeated by logic,” 300 Kan., at 280, 331 P. 3d,
at 719—is untenable. The Carrs implausibly liken the
prejudice resulting from the joint sentencing proceeding to
the prejudice infecting the joint trial in Bruton v. United
States, 391 U. S. 123 (1968), where the prosecution admitted hearsay evidence of a codefendant’s confession implicating the defendant. That particular violation of the
defendant’s confrontation rights, incriminating evidence of
the most persuasive sort, ineradicable, as a practical
matter, from the jury’s mind, justified what we have described as a narrow departure from the presumption that
jurors follow their instructions, Richardson v. Marsh, 481
U. S. 200, 207 (1987). We have declined to extend that
exception, id., at 211, and have continued to apply the
presumption to instructions regarding mitigating evidence
in capital-sentencing proceedings, see, e.g., Weeks, 528
U. S., at 234. There is no reason to think the jury could
not follow its instruction to consider the defendants separately in this case.
Joint proceedings are not only permissible but are often
preferable when the joined defendants’ criminal conduct
arises out of a single chain of events. Joint trial may
enable a jury “to arrive more reliably at its conclusions
regarding the guilt or innocence of a particular defendant
and to assign fairly the respective responsibilities of each
defendant in the sentencing.” Buchanan v. Kentucky, 483
U. S. 402, 418 (1987). That the codefendants might have
“antagonistic” theories of mitigation, Zafiro v. United
States, 506 U. S. 534, 538 (1993), does not suffice to overcome Kansas’s “interest in promoting the reliability and
consistency of its judicial process,” Buchanan, supra, at
418. Limiting instructions, like those used in the Carrs’
sentencing proceeding, “often will suffice to cure any risk
of prejudice.” Zafiro, supra, at 539 (citing Richardson,
Cite as: 577 U. S. ____ (2016)
17
Opinion of the Court
supra, at 211). To forbid joinder in capital-sentencing
proceedings would, perversely, increase the odds of “wanto[n] and freakis[h]” imposition of death sentences. Gregg
v. Georgia, 428 U. S. 153, 206–207 (1976) (joint opinion of
Stewart, Powell, and Stevens, JJ.). Better that two defendants who have together committed the same crimes be
placed side-by-side to have their fates determined by a
single jury.
It is improper to vacate a death sentence based on pure
“speculation” of fundamental unfairness, “rather than
reasoned judgment,” Romano, supra, at 13–14. Only the
most extravagant speculation would lead to the conclusion
that the supposedly prejudicial evidence rendered the
Carr brothers’ joint sentencing proceeding fundamentally
unfair. It is beyond reason to think that the jury’s death
verdicts were caused by the identification of Reginald as
the “corrupter” or of Jonathan as the “corrupted,” the
jury’s viewing of Reginald’s handcuffs, or the sister’s retracted statement that Reginald fired the final shots.
None of that mattered. What these defendants did—acts
of almost inconceivable cruelty and depravity—was described in excruciating detail by Holly, who relived with
the jury, for two days, the Wichita Massacre. The joint
sentencing proceedings did not render the sentencing
proceedings fundamentally unfair.
IV
When we granted the State’s petition for a writ of certiorari for the Carrs’ cases, we declined to review whether
the Confrontation Clause, U. S. Const., Amdt. 6, requires
that defendants be allowed to cross-examine witnesses
whose statements are recorded in police reports referred to
by the State in penalty-phase proceedings. The Kansas
Supreme Court did not make the admission of those
statements a basis for its vacating of the death sentences,
but merely “caution[ed]” that in the resentencing proceed-
18
KANSAS v. CARR
Opinion of the Court
ings these out-of-court testimonial statements should be
omitted, 300 Kan., at 288, 331 P. 3d, at 724. We are confident that cross-examination regarding these police reports
would not have had the slightest effect upon the sentences. See Delaware v. Van Arsdall, 475 U. S. 673, 684
(1986).
*
*
*
The judgments of the Supreme Court of Kansas are
reversed, and these cases are remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Cite as: 577 U. S. ____ (2016)
1
SOTOMAYOR, J., dissenting
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 14–449, 14-450, and 14–452
_________________
14–449
KANSAS, PETITIONER
v.
JONATHAN D. CARR
14–450
KANSAS, PETITIONER
v.
REGINALD DEXTER CARR, JR.
14–452
KANSAS, PETITIONER
v.
SIDNEY J. GLEASON
ON WRITS OF CERTIORARI TO THE SUPREME COURT OF KANSAS
[January 20, 2016]
JUSTICE SOTOMAYOR, dissenting.
I respectfully dissent because I do not believe these
cases should ever have been reviewed by the Supreme
Court. I see no reason to intervene in cases like these—
and plenty of reasons not to. Kansas has not violated any
federal constitutional right. If anything, the State has
overprotected its citizens based on its interpretation of
state and federal law. For reasons ably articulated by my
predecessors and colleagues and because I worry that
cases like these prevent States from serving as necessary
laboratories for experimenting with how best to guarantee
2
KANSAS v. CARR
SOTOMAYOR, J., dissenting
defendants a fair trial, I would dismiss the writs as improvidently granted.
I
In 2014, the Kansas Supreme Court vacated three death
sentences—the sentences of Sidney Gleason and the Carr
brothers, Reginald and Jonathan—because of constitutional errors in the penalty phases of their trials.
All three men were tried under jury instructions that
did not include language previously mandated by the
Kansas Supreme Court. The instructions did not state
that, under Kansas’ statutory scheme, mitigating circumstances need only be proven to an individual juror’s satisfaction and not beyond a reasonable doubt. 299 Kan.
1127, 1192–1197, 329 P. 3d 1102, 1145–1148 (2014) (Sidney Gleason); 300 Kan. 1, 302–303, 331 P. 3d 544, 732–
733 (2014) (Reginald Carr); 300 Kan. 340, 368–369, 329
P. 3d 1195, 1213 (2014) (Jonathan Carr). The court found
that the instructions therefore both undermined Kansas’
state law and created a “reasonable likelihood that the
jury . . . applied the challenged instruction in a way that
prevents consideration” of mitigating evidence as required
by the Federal Constitution. 299 Kan., at 1191–1197, 329
P. 3d, at 1144–1148 (quoting Boyde v. California, 494
U. S. 370, 380 (1990)).
The Kansas Supreme Court also vacated the Carr
brothers’ death sentences because they were jointly tried
at the penalty phase. The court concluded that each
brother’s particular case for mitigation compromised the
other brother’s case and therefore that trying them jointly
violated the Eighth Amendment right to individualized
sentencing. The error was not harmless, the Kansas
Supreme Court found, because an “especially damning
subset” of the evidence presented might not have been
admitted in separate penalty proceedings. 300 Kan., at
275–282, 331 P. 3d, at 717–720; 300 Kan., at 369–370, 329
Cite as: 577 U. S. ____ (2016)
3
SOTOMAYOR, J., dissenting
P. 3d, at 1212.
The Kansas attorney general requested certiorari, alleging that it would best serve the State’s interest for a federal court to intervene and correct the Kansas Supreme
Court. This Court complied, even though there was no
suggestion that the Kansas Supreme Court had violated
any federal constitutional right. The majority now reverses
the Kansas Supreme Court on both points.
II
A
Even where a state court has wrongly decided an “important question of federal law,” Sup. Ct. Rule 10, we often
decline to grant certiorari, instead reserving such grants
for instances where the benefits of hearing a case outweigh the costs of so doing. My colleagues and predecessors have effectively set forth many of the costs of granting
certiorari in cases where state courts grant relief to criminal defendants: We risk issuing opinions that, while not
strictly advisory, may have little effect if a lower court is
able to reinstate its holding as a matter of state law.
Florida v. Powell, 559 U. S. 50, 66 (2010) (Stevens, J.,
dissenting). We expend resources on cases where the only
concern is that a State has “ ‘overprotected’ ” its citizens.
Michigan v. Long, 463 U. S. 1032, 1068 (1983) (Stevens, J.,
dissenting). We intervene in an intrastate dispute between the State’s executive and its judiciary rather than
entrusting the State’s structure of government to sort it
out. See Coleman v. Thompson, 501 U. S. 722, 766–767
(1991) (Blackmun, J., dissenting). And we lose valuable
data about the best methods of protecting constitutional
rights—a particular concern in cases like these, where the
federal constitutional question turns on the “reasonable
likelihood” of jury confusion, an empirical question best
answered with evidence from many state courts. Cf.
Arizona v. Evans, 514 U. S. 1, 30–31 (1995) (GINSBURG, J.,
4
KANSAS v. CARR
SOTOMAYOR, J., dissenting
dissenting).
B
The cases here demonstrate yet another cost of granting
certiorari to correct a state court’s overprotection of federal
rights: In explaining that the Federal Constitution does
not protect some particular right, it is natural to buttress
the conclusion by explaining why that right is not very
important. In so doing, the Court risks discouraging
States from adopting valuable procedural protections even
as a matter of their own state law.
State experimentation with how best to guarantee a fair
trial to criminal defendants is an essential aspect of our
federalism scheme. See, e.g., Linde, First Things First:
Rediscovering the States’ Bill of Rights, 9 U. Balt. L. Rev.
379, 393 (1980). The Federal Constitution guarantees
only a minimum slate of protections; States can and do
provide individual rights above that constitutional floor.
See, e.g., Brennan, The Bill of Rights and the States: the
Revival of State Constitutions as Guardians of Constitutional Rights, 61 N. Y. U. L. Rev. 535, 548–550 (1986).
That role is particularly important in the criminal arena
because state courts preside over many millions more
criminal cases than their federal counterparts and so are
more likely to identify protections important to a fair trial.
Compare Court Statistics Project, Examining the Work of
State Courts: An Analysis of 2010 State Court Caseloads
19–21 (2012), with Dept. of Justice, Bureau of Justice
Statistics, Federal Justice Statistics 2011–2012, pp. 19–20
(Jan. 2015) (Tables 11 and 12).
The majority’s opinion in these cases illustrates how an
unnecessary grant of certiorari can lead to unexpected
costs by disrupting this sort of state experimentation.
Take the first question presented in these cases. The
majority’s actual holding is that the Eighth Amendment
does not require an instruction specifying that mitigating
Cite as: 577 U. S. ____ (2016)
5
SOTOMAYOR, J., dissenting
factors need not be proven beyond a reasonable doubt.
Ante, at 11–12. The Eighth Amendment has nothing to
say about whether such an instruction is wise as a question of state law or policy. But the majority nonetheless
uses this Court’s considerable influence to call into question the logic of specifying any burden of proof as to mitigating circumstances. The majority claims that while
assessing an aggravating factor is “a purely factual determination,” assessing mitigation involves “a judgment call
(or perhaps a value call)” and is thus not amenable to
burdens of proof. Ante, at 10. Short of dividing the mitigating factor “into its factual component and its judgmental component,” and issuing burden-of-proof instructions
only as to the former, the majority wonders “whether it is
even possible to apply a standard of proof to the mitigatingfactor determination.” Ibid.
By this observation, and with no experience with the
needs of juries, the majority denigrates the many States
that do specify a burden of proof for the existence of mitigating factors as a matter of state law, presumably under
the belief that it is, in fact, “possible” to do so.* Brief for
Respondent in No. 14–452, pp. 28–29, and n. 6. Some
States even recommend an instruction specifying that
mitigating factors need not be proven beyond a reasonable
doubt. See, e.g., Idaho Jury Instr., Crim., ICJI 1718, Jury
Deliberations (2010); Okla. Jury Instr., Crim, OUJI–CR 4–
78 (2015).
The majority’s discussion of severance likewise short
circuits state experimentation. The majority is not con——————
* I leave aside the merits of the majority’s questionable distinction,
though I cannot see how the jury’s conclusion that the Carr brothers
committed their crime “in an especially heinous, atrocious or cruel
manner”—one of the aggravating circumstances found by the Carr
brothers’ jury—involved any less of a judgment or value call than the
mitigating circumstances alleged. See 300 Kan. 1, 282–283, 331 P. 3d
544, 721 (2014).
6
KANSAS v. CARR
SOTOMAYOR, J., dissenting
tent to hold that the Eighth Amendment does not, strictly
speaking, require severance of capital penalty proceedings.
Instead, it goes on to explain why joint capital sentencing
proceedings are not only permissible under the Federal
Constitution but are, in fact, preferable as a policy matter:
“Better that two defendants who have together committed
the same crimes be placed side-by-side to have their
fates determined by a single jury.” Ante, at 17. The majority even intimates that severed proceedings may be
worse for defendants: “To forbid joinder in capitalsentencing proceedings would, perversely, increase the
odds of ‘wanto[n] and freakis[h]’ imposition of death sentences.” Ibid. (quoting Gregg v. Georgia, 428 U. S. 153,
206–207 (1976) (joint opinion of Stewart, Powell, and
Stevens, JJ.).
So much for Ohio’s, Georgia’s, and Mississippi’s sentencing regimes, all of which routinely allow severance at both
phases of capital proceedings. See Ga. Code Ann. §17–8–4
(2013) (upon request, defendants must be tried separately
in capital cases); Miss. Code Ann. §99–15–47 (2015)
(same); Ohio Rev. Code Ann. §2945.20 (Lexis 2014) (capital defendants shall be tried separately unless good cause
is shown for a joint trial). There is no evidence that any of
those three States adopted a severance regime based on a
misunderstanding of the Eighth Amendment. But without
any empirical foundation or any basis in experience, the
majority asserts that such regimes may increase the odds
of arbitrariness.
The majority claims that we “ ‘return power to the State,
and to its people,’ ” when we explain that the Federal
Constitution does not require a particular result. Ante, at
9 (emphasis deleted). But that is only so when the Court
is able to pass solely on the federal constitutional ground
and not the wisdom of a state holding on an equivalent
question. Though the Court pretends that it sends back
cases like this one with a clean slate, it rarely fully erases
Cite as: 577 U. S. ____ (2016)
7
SOTOMAYOR, J., dissenting
its thoughts on the virtues of the procedural protection
at issue. By placing a thumb on the scale against a
State adopting—even as a matter of state law—procedural protections the Constitution does not require, the
Court risks turning the Federal Constitution into a
ceiling, rather than a floor, for the protection of individual
liberties.
III
I see no reason why these three cases out of the Kansas
Supreme Court warranted our intervention given the costs
that I have just described and those described by my
predecessors and colleagues, see supra, at 3. No federal
right has been compromised. And nobody disputes that
the State of Kansas could, as a matter of state law, reach
the same outcome.
Perhaps most importantly, both of the questions on
which the Court granted certiorari turn on specific features of Kansas’ sentencing scheme. As a result, the
Kansas Supreme Court’s opinion is unlikely to have much
salience for other States. If the Kansas Supreme Court
was wrong, its wrong opinion will not subvert federal law
on a broader scale.
First, the Kansas court’s decision on the jury instruction
question aimed to “both preserv[e] the [state] statute’s
favorable distinction and protec[t] a capital defendant’s
Eighth Amendment right to individualized sentencing by
ensuring jurors are not precluded from considering all
relevant mitigating evidence.” 299 Kan., at 1196, 329
P. 3d, at 1147 (emphasis added). The Kansas Supreme
Court’s decision was thus informed by a combination of
federal and state considerations. A decision that expressly
relies on a State’s unique statutory scheme—as did the
Kansas Supreme Court’s here—has limited potential for
influencing other States.
It is not absurd to conclude that a juror unfamiliar with
8
KANSAS v. CARR
SOTOMAYOR, J., dissenting
the mechanics of the law might be confused by Kansas’
jury instructions, which almost always mention aggravating and mitigating instructions in the same breath. Id., at
1196–1197, 329 P. 3d, at 1147–1148. The Kansas Supreme Court’s opinion rested largely on the specific language and ordering of that State’s instructions. Other
States’ jury instructions may be less likely to have the
same effect.
Moreover, the decision below was made against the
unique backdrop of trial courts’ failure to implement the
Kansas Supreme Court’s earlier demands for a change to
jury instructions in capital cases. In a 2001 case, the
Kansas Supreme Court considered the jury instructions
insufficiently confusing to reverse the judgment, but sufficiently confusing to demand higher clarity going forward:
“[A]ny instruction dealing with the consideration of mitigating circumstances should state (1) they need to be
proved only to the satisfaction of the individual juror in
the juror’s sentencing decision and not beyond a reasonable doubt and (2) mitigating circumstances do not need to
be found by all members of the jury in order to be considered in an individual juror’s sentencing decision.” State v.
Kleypas, 272 Kan. 894, 1078, 40 P. 3d 139, 268. The Kansas pattern instructions were then revised to include
consideration (2), but—“inexplicably,” as the court noted
in Gleason—not consideration (1). 299 Kan., at 1193, 329
P. 3d, at 1145. The Kansas Supreme Court reiterated the
two requirements for any jury instruction in 2008, see
State v. Scott, 286 Kan. 54, 106–108, 183 P. 3d 801, 837,
and the pattern instructions were finally changed in 2011,
see 299 Kan., at 1193, 329 P. 3d, at 1145. But Gleason
and the Carr brothers were tried in the 10-year delay
between the Kansas Supreme Court’s initial admonition
and when the jury instructions were finally edited. The
Kansas Supreme Court’s opinion in Gleason may have
rested in part on a “broader Eighth Amendment princi-
Cite as: 577 U. S. ____ (2016)
9
SOTOMAYOR, J., dissenting
ple,” but it also rested on some lower courts’ failure to give
instructions reflecting the Kansas Supreme Court’s “repeated recognition of the required content.” 299 Kan., at
1195, 329 P. 3d, 1146, 1147. Given this context, the Kansas Supreme Court’s decision is particularly unlikely to
undermine other States or the Federal Constitution.
The same goes for the severance question. The Kansas
Supreme Court’s decision depended on the “especially
damning subset” of the aggravating evidence presented
that may not have been admitted in a severed proceeding
under Kansas’ capital punishment scheme and evidentiary
rules, such as evidence that one brother was a bad influence on the other. Ibid. But the difference between a joint
penalty phase and a severed penalty phase may be of
limited significance in States where the same evidence
may be admitted in joint and severed proceedings. Cf.
Brown v. Sanders, 546 U. S. 212, 217 (2006); L. Palmer,
The Death Penalty in the United States: A Complete
Guide to Federal and State Laws 137 (2d ed. 2014). It
thus seems to me unlikely that the Kansas Supreme
Court’s opinion would have proven instructive in other
States, even though it was couched in the language of the
Federal Constitution.
IV
There may, of course, be rare cases where certiorari is
warranted in which a state prosecutor alleges that a
State’s highest court has overprotected a criminal defendant. These circumstances may include: Where a state
court’s decision in favor of a criminal defendant implicates
another constitutional right, see, e.g., Nebraska Press
Assn. v. Stuart, 427 U. S. 539, 547 (1976); where a state
court indicates a hostility to applying federal precedents,
Florida v. Meyers, 466 U. S. 380, 383 (1984) ( per curiam)
(Stevens, J., dissenting); or where a state court’s grant of
relief is particularly likely to destabilize or significantly
interfere with federal policy. None of those circumstances,
10
KANSAS v. CARR
SOTOMAYOR, J., dissenting
and no comparable interest, is present in these cases.
The Carr brothers committed acts of “almost inconceivable cruelty and depravity,” and the majority is understandably anxious to ensure they receive their just deserts. (So anxious, in fact, that it reaches out to address a
question on which we did not grant certiorari at all. Ante,
at 17). But I do not believe that interest justifies not only
“correcting” the Kansas Supreme Court’s error but also
calling into question the procedures of other States.
The standard adage teaches that hard cases make bad
law. See Northern Securities Co. v. United States, 193
U. S. 197, 364 (1904) (Holmes, J., dissenting). I fear that
these cases suggest a corollary: Shocking cases make too
much law. Because I believe the Court should not have
granted certiorari here, I respectfully dissent.
(Slip Opinion)
OCTOBER TERM, 2015
1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LOCKHART v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 14–8358. Argued November 3, 2015—Decided March 1, 2016
Petitioner Avondale Lockhart pleaded guilty to possessing child pornography in violation of 18 U. S. C. §2252(a)(4). Because Lockhart
had a prior state-court conviction for first-degree sexual abuse involving his adult girlfriend, his presentence report concluded that he was
subject to the 10-year mandatory minimum sentence enhancement
provided in §2252(b)(2), which is triggered by, inter alia, prior state
convictions for crimes “relating to aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or ward.” Lockhart argued that the limiting phrase “involving a minor or ward” applied to all three state crimes, so his prior conviction did not trigger
the enhancement. Disagreeing, the District Court applied the mandatory minimum. The Second Circuit affirmed.
Held: Lockhart’s prior conviction is encompassed by §2252(b)(2). Pp. 2–
15.
(a) A natural reading of the text supports that conclusion. The
“rule of the last antecedent,” a canon of statutory interpretation stating that “a limiting clause or phrase . . . should ordinarily be read as
modifying only the noun or phrase that it immediately follows,”
Barnhart v. Thomas, 540 U. S. 20, 26, clarifies that the phrase “involving a minor or ward” modifies only the immediately preceding
noun phrase “abusive sexual conduct” and that the phrases “aggravated sexual abuse” and “sexual abuse” are not so restricted. The
rule “can . . . be overcome by other indicia of meaning,” ibid., but
§2252(b)(2)’s context reinforces its application in this case. Pp. 2–5.
(b) Section 2252(b)(2)’s enhancement can also be triggered by, inter
alia, a prior federal sexual abuse offense enumerated in Chapter
109A of the Federal Criminal Code. Interpreting §2252(b)(2) using
the “rule of the last antecedent,” the headings in Chapter 109A mir-
2
LOCKHART v. UNITED STATES
Syllabus
ror precisely the order, precisely the divisions, and nearly precisely
the words used to describe the state sexual-abuse predicates. Applying the modifier “involving a minor or ward” to all three items in
§2252(b)(2)’s list, by contrast, would require this Court to interpret
the state predicates in a way that departs from the federal template.
If Congress had intended that result, it is doubtful that Congress
would have followed so closely the structure and language of Chapter
109A. Pp. 5–7.
(c) Lockhart’s counterarguments are rejected. Pp. 7–14.
(1) Porto Rico Railway, Light & Power Co. v. Mor, 253 U. S. 345,
United States v. Bass, 404 U. S. 336, and Jama v. Immigration and
Customs Enforcement, 543 U. S. 335, do not require this Court to apply Lockhart’s countervailing series-qualifier principle. In those cases, the Court simply observed that the last-antecedent rule may be
overcome by contextual indicia of meaning. Lockhart’s attempts to
identify such indicia are unavailing. He claims that the state predicates are so similar that a limiting phrase could apply equally to all
three. But by transforming a list of separate predicates into a set of
near-synonyms, Lockhart’s reading results in too much redundancy
and risks running headlong into the rule against superfluity. Pp. 7–
10.
(2) Lockhart contends that the existence of other disparities between §2252(b)(2)’s state and federal sexual-abuse predicates indicate that parity was not Congress’ concern. However, this Court’s
construction relies on contextual cues particular to the sexual-abuse
predicates, not on a general assumption that Congress sought full
parity between all state and federal predicates. Pp. 10–11.
(3) The provision’s legislative history “hardly speaks with [a]
clarity of purpose,” Universal Camera Corp. v. NLRB, 340 U. S. 474,
483, and does nothing to explain why Congress would have wanted to
structure §2252(b)(2) to treat state and federal predicates differently.
Pp. 11–14.
(4) Finally, Lockhart suggests the rule of lenity is triggered here,
where applying his series-qualifier principle would lead to an alternative construction of §2252(b)(2). The rule of lenity is used to resolve ambiguity only when the ordinary canons have revealed no satisfactory construction. Here, however, the rule of the last antecedent
is well supported by context, and Lockhart’s alternative is not. P. 14.
749 F. 3d 148, affirmed.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, GINSBURG, and ALITO, JJ., joined. KAGAN,
J., filed a dissenting opinion, in which BREYER, J., joined.
Cite as: 577 U. S. ____ (2016)
1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–8358
_________________
AVONDALE LOCKHART, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[March 1, 2016] JUSTICE SOTOMAYOR delivered the opinion of the Court.
Defendants convicted of possessing child pornography in
violation of 18 U. S. C. §2252(a)(4) are subject to a 10-year
mandatory minimum sentence and an increased maximum sentence if they have “a prior conviction . . . under
the laws of any State relating to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor
or ward.” §2252(b)(2).
The question before us is whether the phrase “involving
a minor or ward” modifies all items in the list of predicate
crimes (“aggravated sexual abuse,” “sexual abuse,” and
“abusive sexual conduct”) or only the one item that immediately precedes it (“abusive sexual conduct”). Below, the
Court of Appeals for the Second Circuit joined several
other Courts of Appeals in holding that it modifies only
“abusive sexual conduct.” The Eighth Circuit has reached
the contrary result. We granted certiorari to resolve that
split. 575 U. S. ___ (2015). We affirm the Second Circuit’s
holding that the phrase “involving a minor or ward” in
§2252(b)(2) modifies only “abusive sexual conduct.”
2
LOCKHART v. UNITED STATES
Opinion of the Court
I
In April 2000, Avondale Lockhart was convicted of
sexual abuse in the first degree under N. Y. Penal Law
Ann. §130.65(1) (West Cum. Supp. 2015). The crime
involved his then-53-year-old girlfriend.
Presentence
Investigation Report (PSR), in No. 11–CR–231–01, p. 13,
¶¶47–48. Eleven years later, Lockhart was indicted in the
Eastern District of New York for attempting to receive
child pornography in violation of 18 U. S. C. §2252(a)(2)
and for possessing child pornography in violation of
§2252(a)(4)(b). Lockhart pleaded guilty to the possession
offense and the Government dismissed the receipt offense.
Lockhart’s presentence report calculated a guidelines
range of 78 to 97 months for the possession offense. But
the report also concluded that Lockhart was subject to
§2252(b)(2)’s mandatory minimum because his prior New
York abuse conviction related “to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor
or ward.” PSR ¶¶87–88.
Lockhart objected, arguing that the statutory phrase
“involving a minor or ward” applies to all three listed
crimes: “aggravated sexual abuse,” “sexual abuse,” and
“abusive sexual conduct.” He therefore contended that his
prior conviction for sexual abuse involving an adult fell
outside the enhancement’s ambit. The District Court
rejected Lockhart’s argument and applied the mandatory
minimum. The Second Circuit affirmed his sentence. 749
F. 3d 148 (CA2 2014).
II
Section 2252(b)(2) reads in full:
“Whoever violates, or attempts or conspires to violate [18 U. S. C. §2252(a)(4)] shall be fined under this
title or imprisoned not more than 10 years, or both,
but . . . if such person has a prior conviction under
this chapter, chapter 71, chapter 109A, or chapter
Cite as: 577 U. S. ____ (2016)
3
Opinion of the Court
117, or under section 920 of title 10 (article 120 of the
Uniform Code of Military Justice), or under the laws
of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt,
mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined
under this title and imprisoned for not less than 10
years nor more than 20 years.”
This case concerns that provision’s list of state sexualabuse offenses. The issue before us is whether the limiting phrase that appears at the end of that list—“involving
a minor or ward”—applies to all three predicate crimes
preceding it in the list or only the final predicate crime.
We hold that “involving a minor or ward” modifies only
“abusive sexual conduct,” the antecedent immediately
preceding it. Although §2252(b)(2)’s list of state predicates
is awkwardly phrased (to put it charitably), the provision’s
text and context together reveal a straightforward reading. A timeworn textual canon is confirmed by the structure and internal logic of the statutory scheme.
A
Consider the text. When this Court has interpreted
statutes that include a list of terms or phrases followed by
a limiting clause, we have typically applied an interpretive
strategy called the “rule of the last antecedent.” See
Barnhart v. Thomas, 540 U. S. 20, 26 (2003). The rule
provides that “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it
immediately follows.” Ibid.; see also Black’s Law Dictionary 1532–1533 (10th ed. 2014) (“[Q]ualifying words or
phrases modify the words or phrases immediately preceding them and not words or phrases more remote, unless
the extension is necessary from the context or the spirit of
the entire writing”); A. Scalia & B. Garner, Reading Law:
4
LOCKHART v. UNITED STATES
Opinion of the Court
The Interpretation of Legal Texts 144 (2012).
This Court has applied the rule from our earliest decisions to our more recent. See, e.g., Sims Lessee v. Irvine, 3
Dall. 425, 444, n. (1799); FTC v. Mandel Brothers, Inc.,
359 U. S. 385, 389, n. 4 (1959); Barnhart, 540 U. S., at 26.
The rule reflects the basic intuition that when a modifier
appears at the end of a list, it is easier to apply that modifier only to the item directly before it. That is particularly
true where it takes more than a little mental energy to
process the individual entries in the list, making it a
heavy lift to carry the modifier across them all. For example, imagine you are the general manager of the Yankees
and you are rounding out your 2016 roster. You tell your
scouts to find a defensive catcher, a quick-footed shortstop,
or a pitcher from last year’s World Champion Kansas City
Royals. It would be natural for your scouts to confine
their search for a pitcher to last year’s championship
team, but to look more broadly for catchers and shortstops.
Applied here, the last antecedent principle suggests that
the phrase “involving a minor or ward” modifies only the
phrase that it immediately follows: “abusive sexual conduct.” As a corollary, it also suggests that the phrases
“aggravated sexual abuse” and “sexual abuse” are not so
constrained.
Of course, as with any canon of statutory interpretation,
the rule of the last antecedent “is not an absolute and can
assuredly be overcome by other indicia of meaning.”
Barnhart, 540 U. S., at 26; see also Davis v. Michigan
Dept. of Treasury, 489 U. S. 803, 809 (1989) (“It is a fundamental canon of statutory construction that the words of
a statute must be read in their context and with a view to
their place in the overall statutory scheme”). For instance,
take “ ‘the laws, the treaties, and the constitution of the
United States.’ ” Post, at 7, n. 1 (KAGAN, J., dissenting). A
reader intuitively applies “of the United States” to “the
laws,” “the treaties” and “the constitution” because (among
Cite as: 577 U. S. ____ (2016)
5
Opinion of the Court
other things) laws, treaties, and the constitution are often
cited together, because readers are used to seeing “of the
United States” modify each of them, and because the listed
items are simple and parallel without unexpected internal
modifiers or structure. Section 2252(b)(2), by contrast,
does not contain items that readers are used to seeing
listed together or a concluding modifier that readers are
accustomed to applying to each of them. And the varied
syntax of each item in the list makes it hard for the reader
to carry the final modifying clause across all three.
More importantly, here the interpretation urged by the
rule of the last antecedent is not overcome by other indicia
of meaning. To the contrary, §2252(b)(2)’s context fortifies
the meaning that principle commands.
B
Our inquiry into §2252(b)(2)’s context begins with the
internal logic of that provision. Section 2252(b)(2) establishes sentencing minimums and maximums for three
categories of offenders. The first third of the section imposes a 10-year maximum sentence on offenders with no
prior convictions. The second third imposes a 10-year
minimum and 20-year maximum on offenders who have
previously violated a federal offense listed within various
chapters of the Federal Criminal Code. And the last third
imposes the same minimum and maximum on offenders
who have previously committed state “sexual abuse,
aggravated sexual abuse, or abusive sexual conduct involving a minor or ward” as well as a number of state
crimes related to the possession and distribution of child
pornography.
Among the chapters of the Federal Criminal Code that
can trigger §2252(b)(2)’s recidivist enhancement are
crimes “under . . . chapter 109A.” Chapter 109A criminal-
6
LOCKHART v. UNITED STATES
Opinion of the Court
izes a range of sexual-abuse offenses involving adults or
minors and wards.1 And it places those federal sexualabuse crimes under headings that use language nearly
identical to the language §2252(b)(2) uses to enumerate
the three categories of state sexual-abuse predicates. The
first section in Chapter 109A is titled “Aggravated sexual
abuse.” 18 U. S. C. §2241. The second is titled “Sexual
abuse.” §2242. And the third is titled “Sexual abuse of a
minor or ward.” §2243. Applying the rule of the last
antecedent, those sections mirror precisely the order,
precisely the divisions, and nearly precisely the words
used to describe the three state sexual-abuse predicate
crimes in §2252(b)(2): “aggravated sexual abuse,” “sexual
abuse,” and “abusive sexual conduct involving a minor or
ward.”
This similarity appears to be more than a coincidence.
We cannot state with certainty that Congress used Chapter 109A as a template for the list of state predicates set
out in §2252(b)(2), but we cannot ignore the parallel,
particularly because the headings in Chapter 109A were
in place when Congress amended the statute to add
§2252(b)(2)’s state sexual-abuse predicates.2
If Congress had intended to limit each of the state predicates to conduct “involving a minor or ward,” we doubt it
would have followed, or thought it needed to follow, so
closely the structure and language of Chapter 109A.3 The
——————
1 For example, §2241(a) of Chapter 109A prohibits forced sexual acts
against “another person”—not just a person under a certain age.
Section 2241(c) specially criminalizes sexual acts “with another person
who has not attained the age of 12 years,” and §2243(b) does the same
for sexual acts with wards who are “in official detention” or “under the
custodial, supervisory, or disciplinary authority of the person so engaging.”
2 See 18 U. S. C. §2241 (1994 ed.) (“Aggravated sexual abuse”); §2242
(“Sexual abuse”); §2243 (“Sexual abuse of a minor or ward”).
3 The dissent points out that §2252(b)(2) (2012 ed.) did not also bor-
Cite as: 577 U. S. ____ (2016)
7
Opinion of the Court
conclusion that Congress followed the federal template is
supported by the fact that Congress did nothing to indicate that offenders with prior federal sexual-abuse convictions are more culpable, harmful, or worthy of enhanced
punishment than offenders with nearly identical state
priors. We therefore see no reason to interpret §2252(b)(2)
so that “[s]exual abuse” that occurs in the Second Circuit
courthouse triggers the sentence enhancement, but “sexual
abuse” that occurs next door in the Manhattan municipal building does not.
III
A
Lockhart argues, to the contrary, that the phrase “involving a minor or ward” should be interpreted to modify
all three state sexual-abuse predicates. He first contends,
as does our dissenting colleague, that the so-called seriesqualifier principle supports his reading. This principle,
Lockhart says, requires a modifier to apply to all items in
a series when such an application would represent a natural construction. Brief for Petitioner 12; post, at 4.
This Court has long acknowledged that structural or
contextual evidence may “rebut the last antecedent inference.” Jama v. Immigration and Customs Enforcement,
543 U. S. 335, 344, n. 4 (2005). For instance, in Porto Rico
——————
row from the heading of the fourth section in Chapter 109A (or, we
note, from the fifth, sixth, seventh, or eighth sections) in defining its
categories of state sexual-abuse predicates. Post, at 14-15 (KAGAN, J.
dissenting). But the significance of the similarity between the three
state predicates in §2252(b)(2) and the wording, structure, and order of
the first three sections of Chapter 109A is not diminished by the fact
that Congress stopped there (especially when the remaining sections
largely set out derivations from, definitions of, and penalties for the
first three). See, e.g., §2244 (listing offenses derived from §§2241, 2242,
and 2243); §2245 (creating an enhancement for offenses under Chapter
109A resulting in death); §2246 (listing definitions).
8
LOCKHART v. UNITED STATES
Opinion of the Court
Railway, Light & Power Co. v. Mor, 253 U. S. 345 (1920),
on which Lockhart relies, this Court declined to apply the
rule of the last antecedent where “[n]o reason appears
why” a modifying clause is not “applicable as much to the
first and other words as to the last” and where “special
reasons exist for so construing the clause in question.” Id.,
at 348. In United States v. Bass, 404 U. S. 336 (1971), this
Court declined to apply the rule of the last antecedent
where “there is no reason consistent with any discernable
purpose of the statute to apply” the limiting phrase to the
last antecedent alone. Id., at 341. Likewise, in Jama, the
Court suggested that the rule would not be appropriate
where the “modifying clause appear[s] . . . at the end of a
single, integrated list.” 543 U. S., at 344, n. 4. And, most
recently, in Paroline v. United States, 572 U. S. ___ (2014),
the Court noted that the rule need not be applied “in a
mechanical way where it would require accepting ‘unlikely
premises.’ ” Id., at ___ (slip op., at 9).
But in none of those cases did the Court describe, much
less apply, a countervailing grammatical mandate that
could bear the weight that either Lockhart or the dissent
places on the series qualifier principle. Instead, the Court
simply observed that sometimes context weighs against
the application of the rule of the last antecedent. Barnhart, 540 U. S., at 26. Whether a modifier is “applicable
as much to the first . . . as to the last” words in a list,
whether a set of items form a “single, integrated list,” and
whether the application of the rule would require acceptance of an “unlikely premise” are fundamentally
contextual questions.
Lockhart attempts to identify contextual indicia that he
says rebut the rule of the last antecedent, but those indicia
hurt rather than help his prospects. He points out that
the final two state predicates, “sexual abuse” and “abusive
sexual conduct,” are “nearly synonymous as a matter of
everyday speech.” Brief for Petitioner 17. And, of course,
Cite as: 577 U. S. ____ (2016)
9
Opinion of the Court
anyone who commits “aggravated sexual abuse” has also
necessarily committed “sexual abuse.” So, he posits, the
items in the list are sufficiently similar that a limiting
phrase could apply equally to all three of them.
But Lockhart’s effort to demonstrate some similarity
among the items in the list of state predicates reveals far
too much similarity. The three state predicate crimes are
not just related on Lockhart’s reading; they are hopelessly
redundant. Any conduct that would qualify as “aggravated
sexual abuse . . . involving a minor or ward” or “sexual
abuse . . . involving a minor or ward” would also qualify as
“abusive sexual conduct involving a minor or ward.” We
take no position today on the meaning of the terms “aggravated sexual abuse,” “sexual abuse,” and “abusive
sexual conduct,” including their similarities and differences. But it is clear that applying the limiting phrase to
all three items would risk running headlong into the rule
against superfluity by transforming a list of separate
predicates into a set of synonyms describing the same
predicate. See Bailey v. United States, 516 U. S. 137, 146
(1995) (“We assume that Congress used two terms because
it intended each term to have a particular, nonsuperfluous
meaning”).
Applying the limiting phrase “involving a minor or
ward” more sparingly, by contrast, preserves some distinction between the categories of state predicates by limiting
only the third category to conduct “involving a minor or
ward.” We recognize that this interpretation does not
eliminate all superfluity between “aggravated sexual
abuse” and “sexual abuse.” See United States v. Atlantic
Research Corp., 551 U. S. 128, 137 (2007) (“[O]ur hesitancy
to construe statutes to render language superfluous
does not require us to avoid surplusage at all costs. It is
appropriate to tolerate a degree of surplusage”). But there
is a ready explanation for the redundancy that remains: It
follows the categories in Chapter 109A’s federal template.
10
LOCKHART v. UNITED STATES
Opinion of the Court
See supra, at 6. We see no similar explanation for Lockhart’s complete collapse of the list.
The dissent offers a suggestion rooted in its impressions
about how people ordinarily speak and write. Post, at 1–4.
The problem is that, as even the dissent acknowledges,
§2252(b)(2)’s list of state predicates is hardly intuitive. No
one would mistake its odd repetition and inelegant phrasing for a reflection of the accumulated wisdom of everyday
speech patterns. It would be as if a friend asked you to get
her tart lemons, sour lemons, or sour fruit from Mexico. If
you brought back lemons from California, but your friend
insisted that she was using customary speech and obviously asked for Mexican fruit only, you would be forgiven
for disagreeing on both counts.
Faced with §2252(b)(2)’s inartful drafting, then, do we
interpret the provision by viewing it as a clear, commonsense list best construed as if conversational English?
Or do we look around to see if there might be some provenance to its peculiarity? With Chapter 109A so readily at
hand, we are unpersuaded by our dissenting colleague’s
invocation of basic examples from day-to-day life. Whatever the validity of the dissent’s broader point, this simply
is not a case in which colloquial practice is of much use.
Section 2252(b)(2)’s list is hardly the way an average
person, or even an average lawyer, would set about to
describe the relevant conduct if they had started from
scratch.
B
Lockhart next takes aim at our construction of
§2252(b)(2) to avoid disparity between the state and federal
sexual-abuse predicates. He contends that other disparities between state and federal predicates in §2252(b)(2)
indicate that parity was not Congress’ concern. For example, §2252(b)(2) imposes the recidivist enhancement on
offenders with prior federal convictions under Chapter 71
Cite as: 577 U. S. ____ (2016)
11
Opinion of the Court
of Title 18, which governs obscenity. See §§1461–1470.
Yet §2252(b)(2) does not impose a similar enhancement
for offenses under state obscenity laws.
Similarly,
§2252(b)(2)’s neighbor provision, §2252(b)(1), creates a
mandatory minimum for sex trafficking involving children, but not sex trafficking involving adults.
However, our construction of §2252(b)(2)’s sexual-abuse
predicates does not rely on a general assumption that
Congress sought full parity between all of the federal and
state predicates in §2252(b)(2). It relies instead on contextual cues particular to the sexual-abuse predicates. To
enumerate the state sexual-abuse predicates, Congress
used language similar to that in Chapter 109A of the
Federal Criminal Code, which describes crimes involving
both adults and children. See supra, at 6. We therefore
assume that the same language used to describe the state
sexual-abuse predicates also describes conduct involving
both adults and children.
C
Lockhart, joined by the dissent, see post, at 9–11, next
says that the provision’s legislative history supports the
view that Congress deliberately structured §2252(b)(2) to
treat state and federal predicates differently. They rely on
two sources. The first is a reference in a Report from the
Senate Judiciary Committee on the Child Pornography
Prevention Act of 1996, 110 Stat. 3009–26. That Act was
the first to add the language at issue here—“aggravated
sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward”—to the U. S. Code. (It was
initially added to §2252(b)(1), then added two years later
to §2252(b)(2)).
The Report noted that the enhancement applies to
persons with prior convictions “under any State child
abuse law or law relating to the production, receipt or
distribution of child pornography.” See S. Rep. No. 104–
12
LOCKHART v. UNITED STATES
Opinion of the Court
358, p. 9 (1996). But that reference incompletely describes
the state pornography production and distribution predicates, which cover not only “production, receipt, or distributing of child pornography,” as the Report indicates, but
also “production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography,”
§2252(b)(2). For the reasons discussed, we have no trouble
concluding that the Report also incompletely describes the
state sexual-abuse predicates.
Lockhart and the dissent also rely on a letter sent from
the Department of Justice (DOJ) to the House of Representative’s Committee on the Judiciary commenting on the
proposed “Child Protection and Sexual Predator Punishment Act of 1998.” H. R. Rep. No. 105–557, pp. 26–34
(1998). In the letter, DOJ provides commentary on the
then-present state of §§2252(b)(1) and 2252(b)(2), noting
that although there is a “5-year mandatory minimum
sentence for individuals charged with receipt or distribution of child pornography and who have prior state convictions for child molestation” pursuant to §2252(b)(1), there
is “no enhanced provision for those individuals charged
with possession of child pornography who have prior
convictions for child abuse” pursuant to §2252(b)(2). Id.,
at 31. That letter, they say, demonstrates that DOJ understood the language at issue here to impose a sentencing
enhancement only for prior state convictions involving
children.
We doubt that DOJ was trying to describe the full reach
of the language in §2252(b)(1), as the dissent suggests. To
the contrary, there are several clues that the letter was
relaying on just one of the provision’s many salient features. For instance, the letter’s references to “child molestation” and “child abuse” do not encompass a large number
of state crimes that are unambiguously covered by “abusive sexual conduct involving a minor or ward”—namely,
crimes involving “wards.” Wards can be minors, but they
Cite as: 577 U. S. ____ (2016)
13
Opinion of the Court
can also be adults. See, e.g., §2243(b) (defining “wards” as
persons who are “in official detention” and “under . . .
custodial, supervisory, or disciplinary authority”). Moreover, we doubt that DOJ intended to express a belief that
the potentially broad scope of serious crimes encompassed
by “aggravated sexual abuse, sexual abuse, and abusive
sexual conduct” reaches no further than state crimes that
would traditionally be characterized as “child molestation”
or “child abuse.”
Thus, Congress’ amendment to the provision did give
“DOJ just what it wanted,” post, at 10. But the amendment also did more than that. We therefore think it unnecessary to restrict our interpretation of the provision to
the parts of it that DOJ chose to highlight in its letter.
Just as importantly, the terse descriptions of the provision
in the Senate Report and DOJ letter do nothing to explain
why Congress would have wanted to apply the mandatory
minimum to individuals convicted in federal court of sexual abuse or aggravated sexual abuse involving an adult,
but not to individuals convicted in state court of the same.
The legislative history, in short, “hardly speaks with [a]
clarity of purpose” through which we can discern Congress’ statutory objective. Universal Camera Corp. v.
NLRB, 340 U. S. 474, 483 (1951).
The best explanation Lockhart can muster is a basic
administrability concern: Congress “knew what conduct it
was capturing under federal law and could be confident
that all covered federal offenses were proper predicates.
But Congress did not have the same familiarity with the
varied and mutable sexual-abuse laws of all fifty states.”
Brief for Petitioner 27. Perhaps Congress worried that
state laws punishing relatively minor offenses like public
lewdness or indecent exposure involving an adult would be
swept into §2252(b)(2). Id., at 28. But the risk Lockhart
identifies is minimal. Whether the terms in §2252(b)(2)
are given their “generic” meaning, see Descamps v. United
14
LOCKHART v. UNITED STATES
Opinion of the Court
States, 570 U. S. ___ (2013); Taylor v. United States, 495
U. S. 575 (1990), or are defined in light of their federal
counterparts—which we do not decide—they are unlikely
to sweep in the bizarre or unexpected state offenses that
worry Lockhart.
D
Finally, Lockhart asks us to apply the rule of lenity. We
have used the lenity principle to resolve ambiguity in
favor of the defendant only “at the end of the process of
construing what Congress has expressed” when the ordinary canons of statutory construction have revealed no
satisfactory construction. Callanan v. United States, 364
U. S. 587, 596 (1961). That is not the case here. To be
sure, Lockhart contends that if we applied a different
principle of statutory construction—namely, his “seriesqualifier principle”—we would arrive at an alternative
construction of §2252(b)(2). But the arguable availability
of multiple, divergent principles of statutory construction
cannot automatically trigger the rule of lenity. Cf. Llewellyn, Remarks on the Theory of Appellate Decision and the
Rules or Canons About How Statutes Are To Be Construed, 3 Vand. L. Rev. 395, 401 (1950) (“[T]here are two
opposing canons on almost every point”). Here, the rule of
the last antecedent is well supported by context and Lockhart’s alternative is not. We will not apply the rule of
lenity to override a sensible grammatical principle buttressed by the statute’s text and structure.
*
*
*
We conclude that the text and structure of §2252(b)(2)
confirm that the provision applies to prior state convictions for “sexual abuse” and “aggravated sexual abuse,”
whether or not the convictions involved a minor or ward.
We therefore hold that Lockhart’s prior conviction for
sexual abuse of an adult is encompassed by §2252(b)(2).
Cite as: 577 U. S. ____ (2016)
15
Opinion of the Court
The judgment of the Court of Appeals, accordingly, is
affirmed.
So ordered.
Cite as: 577 U. S. ____ (2016)
1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–8358
_________________
AVONDALE LOCKHART, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[March 1, 2016] JUSTICE KAGAN, with whom JUSTICE BREYER joins,
dissenting.
Imagine a friend told you that she hoped to meet “an
actor, director, or producer involved with the new Star
Wars movie.” You would know immediately that she
wanted to meet an actor from the Star Wars cast—not an
actor in, for example, the latest Zoolander. Suppose a real
estate agent promised to find a client “a house, condo, or
apartment in New York.” Wouldn’t the potential buyer be
annoyed if the agent sent him information about condos in
Maryland or California? And consider a law imposing a
penalty for the “violation of any statute, rule, or regulation
relating to insider trading.” Surely a person would have
cause to protest if punished under that provision for violating a traffic statute. The reason in all three cases is the
same: Everyone understands that the modifying phrase—
“involved with the new Star Wars movie,” “in New York,”
“relating to insider trading”—applies to each term in the
preceding list, not just the last.
That ordinary understanding of how English works, in
speech and writing alike, should decide this case. Avondale Lockhart is subject to a 10-year mandatory minimum
sentence for possessing child pornography if, but only if,
he has a prior state-law conviction for “aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a
2
LOCKHART v. UNITED STATES
KAGAN, J., dissenting
minor or ward.” 18 U. S. C. §2252(b)(2). The Court today,
relying on what is called the “rule of the last antecedent,”
reads the phrase “involving a minor or ward” as modifying
only the final term in that three-item list. But properly
read, the modifier applies to each of the terms—just as in
the examples above. That normal construction finds
support in uncommonly clear-cut legislative history, which
states in so many words that the three predicate crimes all
involve abuse of children. And if any doubt remained, the
rule of lenity would command the same result: Lockhart’s
prior conviction for sexual abuse of an adult does not
trigger §2252(b)(2)’s mandatory minimum penalty. I
respectfully dissent.
I
Begin where the majority does—with the rule of the last
antecedent. See ante, at 3. This Court most fully discussed that principle in Barnhart v. Thomas, 540 U. S. 20
(2003), which considered a statute providing that an individual qualifies as disabled if “he is not only unable to do
his previous work but cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
economy.” Id., at 21–22 (quoting 42 U. S. C. §423(d)(2)(A))
(emphasis added). The Court held, invoking the lastantecedent rule, that the italicized phrase modifies only
the term “substantial gainful work,” and not the term
“previous work” occurring earlier in the sentence. Two
points are of especial note. First, Barnhart contained a
significant caveat: The last-antecedent rule “can assuredly
be overcome by other indicia of meaning.” 540 U. S., at 26;
see, e.g., Nobelman v. American Savings Bank, 508 U. S.
324, 330–331 (1993) (refusing to apply the rule when a
contrary interpretation was “the more reasonable one”).
Second, the grammatical structure of the provision in
Barnhart is nothing like that of the statute in this case:
Cite as: 577 U. S. ____ (2016)
3
KAGAN, J., dissenting
The modifying phrase does not, as here, immediately
follow a list of multiple, parallel terms. That is true as
well in the other instances in which this Court has followed the rule. See, e.g., Jama v. Immigration and Customs Enforcement, 543 U. S. 335 (2005); Batchelor v.
United States, 156 U. S. 426 (1895); Sims Lessee v. Irvine,
3 Dall. 425 (1799).
Indeed, this Court has made clear that the lastantecedent rule does not generally apply to the grammatical construction present here: when “[t]he modifying
clause appear[s] . . . at the end of a single, integrated list.”
Jama, 543 U. S., at 344, n. 4. Then, the exact opposite is
usually true: As in the examples beginning this opinion,
the modifying phrase refers alike to each of the list’s
terms. A leading treatise puts the point as follows: “When
there is a straightforward, parallel construction that
involves all nouns or verbs in a series,” a modifier at the
end of the list “normally applies to the entire series.” A.
Scalia & B. Garner, Reading Law: The Interpretation of
Legal Texts 147 (2012); compare id., at 152 (“When the
syntax involves something other than [such] a parallel
series of nouns or verbs,” the modifier “normally applies
only to the nearest reasonable referent”). That interpretive practice of applying the modifier to the whole list
boasts a fancy name—the “series-qualifier canon,” see
Black’s Law Dictionary 1574 (10th ed. 2014)—but, as my
opening examples show, it reflects the completely ordinary
way that people speak and listen, write and read.1
——————
1 The
majority’s baseball example, see ante, at 4, reads the other way
only because its three terms are not parallel. The words “catcher” and
“shortstop,” but not “pitcher,” are qualified separate and apart from the
modifying clause at the end of the sentence: “Pitcher” thus calls for a
modifier of its own, and the phrase “from the Kansas City Royals”
answers that call. Imagine the sentence is slightly reworded to refer to
a “defensive catcher, quick-footed shortstop, or hard-throwing pitcher
from the Kansas City Royals.” Or, alternatively, suppose the sentence
4
LOCKHART v. UNITED STATES
KAGAN, J., dissenting
Even the exception to the series-qualifier principle is
intuitive, emphasizing both its common-sensical basis and
its customary usage. When the nouns in a list are so
disparate that the modifying clause does not make sense
when applied to them all, then the last-antecedent rule
takes over. Suppose your friend told you not that she
wants to meet “an actor, director, or producer involved
with Star Wars,” but instead that she hopes someday to
meet “a President, Supreme Court Justice, or actor involved with Star Wars.” Presumably, you would know
that she wants to meet a President or Justice even if that
person has no connection to the famed film franchise. But
so long as the modifying clause “is applicable as much to
the first and other words as to the last,” this Court has
stated, “the natural construction of the language demands
that the clause be read as applicable to all.” Paroline v.
United States, 572 U. S. ___, ___ (2014) (slip op., at 9)
(quoting Porto Rico Railway, Light & Power Co. v. Mor,
253 U. S. 345, 348 (1920)). In other words, the modifier
then qualifies not just the last antecedent but the whole
series.
As the majority itself must acknowledge, see ante, at 7–
8, this Court has repeatedly applied the series-qualifier
rule in just that manner. In Paroline, for example, this
Court considered a statute requiring possessors of child
pornography to pay restitution to the individuals whose
abuse is recorded in those materials. The law defines such
a victim’s losses to include “medical services relating to
physical, psychiatric, or psychological care; physical and
occupational therapy or rehabilitation; necessary transportation, temporary housing, and child care expenses;
—————— referred simply to a “catcher, shortstop, or pitcher from the Kansas City
Royals.” Either way, all three players must come from the Royals—
because the three terms (unlike in the majority’s sentence) are a parallel series with a modifying clause at the end. Cite as: 577 U. S. ____ (2016)
5
KAGAN, J., dissenting
lost income; attorneys’ fees, as well as other costs incurred; and any other losses suffered by the victim as a
proximate result of the offense.”
18 U. S. C.
§§2259(b)(3)(A)–(F) (lettering omitted). The victim bringing the lawsuit invoked the last-antecedent rule to argue
that the modifier at the end of the provision—“as a proximate result of the offense”—pertained only to the last item
in the preceding list, and not to any of the others. See 572
U. S., at ___ (slip op., at 9). But the Court rejected that
view: It recited the “canon[ ] of statutory construction,”
derived from the “natural” use of language, that “[w]hen
several words are followed by a clause” that can sensibly
modify them all, it should be understood to do so. Ibid.
Thus, the Court read the proximate-cause requirement to
cover each and every term in the list.
United States v. Bass, 404 U. S. 336 (1971), to take just
one other example, followed the same rule. There, the
Court confronted a statute making it a crime for a convicted
felon to “receive[ ], possess[ ], or transport[ ] in commerce or
affecting commerce . . . any firearm.” 18 U. S. C. App.
§1202(a) (1970 ed.) (current version at 18 U. S. C. §922(g)).
The Government contended that the modifying clause—
“in commerce or affecting commerce”—applied only to
“transport” and not to “receive” or “possess.” But the
Court rebuffed that argument. “[T]he natural construction of the language,” the Court recognized, “suggests that
the clause ‘in commerce or affecting commerce’ qualifies
all three antecedents in the list.” 404 U. S., at 339 (some
internal quotation marks omitted). Relying on longstanding precedents endorsing such a construction, the Court
explained: “Since ‘in commerce or affecting commerce’
undeniably applies to at least one antecedent, and since it
makes sense with all three, the more plausible construction here is that it in fact applies to all three.” Id., at 339–
340 (citing United States v. Standard Brewery, Inc., 251
U. S. 210, 218 (1920); Porto Rico Railway, 253 U. S., at
6
LOCKHART v. UNITED STATES
KAGAN, J., dissenting
348); see also, e.g., Jones v. United States, 529 U. S. 848,
853 (2000) (similarly treating the interstate commerce
element in the phrase “any building, vehicle, or other real
or personal property used in interstate or foreign commerce” as applying to buildings and vehicles).
That analysis holds equally for §2252(b)(2), the sentencing provision at issue here. The relevant language—
“aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor or ward”—contains a “single,
integrated list” of parallel terms (i.e., sex crimes) followed
by a modifying clause. Jama, 543 U. S., at 344, n. 4.
Given the close relation among the terms in the series, the
modifier makes sense “as much to the first and other
words as to the last.” Paroline, 572 U. S., at ___ (slip op.,
at 9). In other words, the reference to a minor or ward
applies as well to sexual abuse and aggravated sexual
abuse as to abusive sexual conduct. (The case would be
different if, for example, the statute established a mandatory minimum for any person previously convicted of
“arson, receipt of stolen property, or abusive sexual conduct involving a minor or ward.”) So interpreting the
modifier “as applicable to all” the preceding terms is what
“the natural construction of the language” requires. Ibid.;
Bass, 404 U. S., at 339.
The majority responds to all this by claiming that the
“inelegant phrasing” of §2252(b)(2) renders it somehow
exempt from a grammatical rule reflecting “how people
ordinarily” use the English language. Ante, at 10. But to
begin with, the majority is wrong to suggest that the
series-qualifier canon is only about “colloquial” or “conversational” English. Ibid. In fact, it applies to both speech
and writing, in both their informal and their formal varieties. Here is a way to test my point: Pick up a journal, or a
book, or for that matter a Supreme Court opinion—most of
which keep “everyday” colloquialisms at a far distance.
Ibid. You’ll come across many sentences having the struc-
Cite as: 577 U. S. ____ (2016)
7
KAGAN, J., dissenting
ture of the statutory provision at issue here: a few nouns
followed by a modifying clause. And you’ll discover, again
and yet again, that the clause modifies every noun in the
series, not just the last—in other words, that even (especially?) in formal writing, the series-qualifier principle
works.2 And the majority is wrong too in suggesting that
the “odd repetition” in §2252(b)(2)’s list of state predicates
causes the series-qualifier principle to lose its force. Ibid.
The majority’s own made-up sentence proves that much.
If a friend asked you “to get her tart lemons, sour lemons,
or sour fruit from Mexico,” you might well think her list of
terms perplexing: You might puzzle over the difference
between tart and sour lemons, and wonder why she had
specifically mentioned lemons when she apparently would
be happy with sour fruit of any kind. But of one thing, you
——————
2 Too busy to carry out this homework assignment? Consider some
examples (there are many more) from just the last few months of this
Court’s work. In OBB Personenverkehr AG v. Sachs, 577 U. S. ___, ___
(2015) (slip op., at 5–6), this Court described a lawsuit as alleging
“wrongful arrest, imprisonment, and torture by Saudi police.” In
James v. Boise, 577 U. S. ___, ___ (2016) (per curiam) (slip op., at 2)
(quoting Martin v. Hunter’s Lessee, 1 Wheat. 304, 348 (1816)), this
Court affirmed that state courts must follow its interpretations of “the
laws, the treaties, and the constitution of the United States.” In Musacchio v. United States, 577 U. S. ___, ___ (2016) (slip op., at 8) (quoting
Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154, 166 (2010)), this Court
noted that in interpreting statutes it looks to the “text, context, and
relevant historical treatment of the provision at issue.” In FERC v.
Electric Power Supply Assn., 577 U. S. ___, ___ (2016) (slip op., at 15),
this Court applied a statute addressing “any rule, regulation, practice,
or contract affecting [a wholesale] rate [or] charge.” And in Montanile v.
Board of Trustees of Nat. Elevator Industry Health Benefit Plan, 577
U. S. ___, ___ (2016) (slip op., at 2), this Court interpreted an employee
benefits plan requiring reimbursement “for attorneys’ fees, costs,
expenses or damages claimed by the covered person.” In each case, of
course, the italicized modifying clause refers to every item in the
preceding list. That is because the series-qualifier rule reflects how all
of us use language, in writing and in speech, in formal and informal
contexts, all the time.
8
LOCKHART v. UNITED STATES
KAGAN, J., dissenting
would have no doubt: Your friend wants some produce
from Mexico; it would not do to get her, say, sour lemons
from Vietnam. However weird the way she listed fruits—
or the way §2252(b)(2) lists offenses—the modifying clause
still refers to them all.
The majority as well seeks refuge in the idea that applying the series-qualifier canon to §2252(b)(2) would violate
the rule against superfluity. See ante, at 9–10. Says the
majority: “Any conduct that would qualify as ‘aggravated
sexual abuse . . . involving a minor or ward’ or ‘sexual
abuse . . . involving a minor or ward’ would also qualify as
‘abusive sexual conduct involving a minor or ward.’ ” Ante,
at 9. But that rejoinder doesn’t work. “[T]he canon
against superfluity,” this Court has often stated, “assists
only where a competing interpretation gives effect to every
clause and word of a statute.” Microsoft Corp. v. i4i Ltd.
Partnership, 564 U. S. 91, 106 (2011) (internal quotation
marks omitted); see, e.g., Bruesewitz v. Wyeth LLC, 562
U. S. 223, 236 (2011). And the majority’s approach (as it
admits, see ante, at 9) produces superfluity too—and in
equal measure. Now (to rearrange the majority’s sentence) any conduct that would qualify as “abusive sexual
conduct involving a minor or ward” or “aggravated sexual
abuse” would also qualify as “sexual abuse.” In other
words, on the majority’s reading as well, two listed crimes
become subsets of a third, so that the three could have
been written as one. And indeed, the majority’s superfluity
has an especially odd quality, because it relates to the
modifying clause itself: The majority, that is, makes the
term “involving a minor or ward” wholly unnecessary.
Remember the old adage about the pot and the kettle?
That is why the rule against superfluity cannot excuse the
majority from reading §2252(b)(2)’s modifier, as ordinary
usage demands, to pertain to all the terms in the preced-
Cite as: 577 U. S. ____ (2016)
9
KAGAN, J., dissenting
ing series.3
II
Legislative history confirms what the natural construction of language shows: Each of the three predicate offenses at issue here must involve a minor. The list of
those crimes appears in two places in §2252(b)—both in
§2252(b)(1), which contains a sentencing enhancement for
those convicted of distributing or receiving child pornography, and in §2252(b)(2), which includes a similar enhancement for those (like Lockhart) convicted of possessing such material. Descriptions of that list of offenses,
made at the time Congress added it to those provisions,
belie the majority’s position.
The relevant language—again, providing for a mandatory minimum sentence if a person has a prior state-law
conviction for “aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward”—first
made its appearance in 1996, when Congress inserted it
into §2252(b)(1). See Child Pornography Prevention Act of
1996, §121(5), 110 Stat. 3009–30, 18 U. S. C. §2251 note.
At that time, the Senate Report on the legislation explained what the new language meant: The mandatory
minimum would apply to an “offender with a prior conviction under . . . any State child abuse law.” S. Rep. No.
104–358, p. 9 (1996) (emphasis added). It is hard to imagine saying any more directly that the just-added state
sexual-abuse predicates all involve minors, and minors
only.4
——————
3 The
majority asserts that it has found, concealed within
§2252(b)(2)’s structure, an “explanation” for its own superfluity, ante, at
9, but that claim, as I’ll soon show, collapses on further examination.
See infra, at 13–16.
4 And it makes no difference that the Senate Report accompanied
§2252(b)(1)’s, rather than §2252(b)(2)’s, amendment. No one can
possibly think (and the majority therefore does not try to argue) that
10
LOCKHART v. UNITED STATES
KAGAN, J., dissenting
Two years later, in urging Congress to include the same
predicate offenses in §2252(b)(2), the Department of Justice (DOJ) itself read the list that way. In a formal bill
comment, DOJ noted that proposed legislation on child
pornography failed to fix a statutory oddity: Only
§2252(b)(1), and not §2252(b)(2), then contained the state
predicates at issue here. DOJ described that discrepancy
as follows: Whereas §2252(b)(1) provided a penalty enhancement for “individuals charged with receipt or distribution of child pornography and who have prior state
convictions for child molestation,” the adjacent §2252(b)(2)
contained no such enhancement for those “charged with
possession of child pornography who have prior convictions
for child abuse.” H. R. Rep. No. 105–557, p. 31 (1998)
(emphasis added). That should change, DOJ wrote: A
possessor of child pornography should also be subject to a
2-year mandatory minimum if he had “a prior conviction
for sexual abuse of a minor.” Ibid. (emphasis added). DOJ
thus made clear that the predicate offenses it recommended adding to §2252(b)(2)—like those already in
§2252(b)(1)—related not to all sexual abuse but only to
sexual abuse of children. And Congress gave DOJ just
what it wanted: Soon after receiving the letter, Congress
added the language at issue to §2252(b)(2), resulting in
the requested 2-year minimum sentence. See Protection of
Children From Sexual Predators Act of 1998, §202(a)(2),
112 Stat. 2977, 18 U. S. C. §1 note. So every indication, in
1998 no less than in 1996, was that all the predicate
crimes relate to children alone.
The majority’s response to this history fails to blunt its
force. According to the majority, the reference to “any
state child abuse law” in the Senate Report is simply an
“incomplete[ ] descri[ption]” of “the state sexual-abuse
—————— the disputed language means something different in §2252(b)(2) than in
its neighbor and model, §2252(b)(1). Cite as: 577 U. S. ____ (2016)
11
KAGAN, J., dissenting
predicates.” Ante, at 12. And similarly, the majority
ventures, the DOJ letter was merely noting “one of the
provision’s many salient features.” Ibid. But suppose that
you (like the Senate Report’s or DOJ letter’s authors) had
to paraphrase or condense the statutory language at issue
here, and that you (like the majority) thought it captured
all sexual-abuse crimes. Would you then use the phrase
“any state child abuse law” as a descriptor (as the Senate
Report did)? And would you refer to the whole list of state
predicates as involving “sexual abuse of a minor” (as the
DOJ letter did)? Of course not. But you might well use
such shorthand if, alternatively, you understood the statutory language (as I do) to cover only sexual offenses
against children. And so the authors of the Report and
letter did here. Such documents of necessity abridge
statutory language; but they do not do so by conveying an
utterly false impression of what that language is most
centrally about—as by describing a provision that (supposedly) covers all sexual abuse as one that reaches only
child molestation.5
——————
5 The
majority tries to bolster its “incomplete description” claim by
highlighting another summary statement in the Senate Report, but
that reference merely illustrates my point. In amending §2252(b)(1)
(and later §2252(b)(2)), Congress added not only the child sexual-abuse
predicates at issue here, but also a set of predicate state offenses
relating to child pornography. Specifically, Congress provided a mandatory minimum sentence for individuals previously convicted of the
“production, possession, receipt, mailing, sale, distribution, shipment,
or transportation of child pornography.” Child Pornography Prevention
Act, §121(5), 110 Stat. 3009–30. The Senate Report described those
predicate crimes in an abbreviated fashion as “relating to the production, receipt or distribution of child pornography.” S. Rep. No. 104–358,
p. 9 (1996). That synopsis doubtless leaves some things out, as any
synopsis does; but no reader of the Report would be terribly surprised
to see the fuller statutory list. The same cannot be said of the phrase
“any state child abuse law” if that in fact refers to laws prohibiting all
rape, sexual assault, and similar behavior.
The majority makes the identical mistake in asserting that the DOJ
12
LOCKHART v. UNITED STATES
KAGAN, J., dissenting
Further, the majority objects that the Senate Report’s
(and DOJ letter’s) drafters did “nothing to explain why”
Congress would have limited §2252(b)’s state sexual-abuse
predicates to those involving children when the provision’s
federal sexual-abuse predicates (as all agree) are not so
confined. Ante, at 13 (emphasis in original). But Congress
is under no obligation to this Court to justify its choices.
(Nor is DOJ obliged to explain them to Congress itself.)
Rather, the duty is on this Court to carry out those decisions, regardless of whether it understands all that lay
behind them. The Senate Report (and DOJ letter too) says
what it says about §2252(b)’s meaning, confirming in no
uncertain terms the most natural reading of the statutory
language. Explanation or no, that is more than sufficient.
And the majority (as it concedes) cannot claim that
Congress simply must have wanted §2252(b)(2)’s federal
and state predicates to be the same. See ante, at 11
(“[O]ur construction of §2252(b)(2)’s sexual-abuse predicates does not rely on a general assumption that Congress
sought full parity between all of the federal and state
predicates”).
That is because both §2252(b)(1) and
§2252(b)(2) contain many federal predicates lacking state
matches. Under §2252(b)(1), for example, a person is
subject to a mandatory minimum if he previously violated
—————— letter merely “highlight[s]” one of §2252(b)(1)’s many features. Ante, at
13. To support that claim, the majority notes that the letter omits any
discussion of sexual crimes against adult wards, even though the
statute covers those offenses on any theory. But that elision is perfectly
natural. The number of sex crimes against adult wards pales in comparison to those against children: In discussing the latter, DOJ was
focused on the mine-run offense. (For the same reason, this opinion’s
descriptions of §2252(b) often skip any reference to wards. See supra,
at 9, 11; infra, at 13. Count that as a writer’s choice to avoid extraneous detail.) The majority cannot offer any similar, simple explanation
of why DOJ would have repeatedly referred only to sex crimes against
children if the statutory language it was explicating—and proposing to
add to another provision—also covered sex crimes against all adults.
Cite as: 577 U. S. ____ (2016)
13
KAGAN, J., dissenting
18 U. S. C. §1591, which prohibits “[s]ex trafficking of
children or [sex trafficking] by force, fraud, or coercion.”
But if the prior conviction is under state law, only sex
trafficking of children will trigger that minimum; trafficking of adults, even if by force, fraud, or coercion, will not.
That mismatch—trafficking of both adults and children on
the federal side, trafficking of children alone on the state
side—precisely parallels my view of the sexual-abuse
predicates at issue here. More generally, ten federal
obscenity crimes trigger both §2252(b)(1)’s and
§2252(b)(2)’s enhanced punishments; but equivalent state
crimes do not do so. And five federal prostitution offenses
prompt mandatory minimums under those provisions; but
no such state offenses do. Noting those disparities, the
Government concedes: “[W]hen Congress adds state-law
offenses to the lists of predicate offenses triggering childpornography recidivist enhancements, it sometimes adds
state offenses corresponding to only a subset of the federal
offenses” previously included. Brief for United States 43.
Just so. And this Court ought to enforce that choice.
III
As against the most natural construction of §2252(b)(2)’s
language, plus unusually limpid legislative history, the
majority relies on a structural argument. See ante, at 5–7.
The federal sexual-abuse predicates in §2252(b)(2), the
majority begins, are described as crimes “under . . . Chapter 109A,” and that chapter “criminalizes a range of sexualabuse offenses involving adults or minors.” Ante, at 5–6
(emphasis in original). Once again, the majority cannot
say that this fact alone resolves the question presented,
given the many times (just discussed) that Congress opted
to make federal crimes, but not equivalent state crimes,
predicates for §2252(b)(2)’s mandatory minimums. But
the majority claims to see more than that here: The headings of the sections in Chapter 109A, it contends, “mirror
14
LOCKHART v. UNITED STATES
KAGAN, J., dissenting
precisely the order . . . and nearly precisely the words used
to describe” the state predicate crimes at issue. Ante, at 6.
The majority “cannot state with certainty,” but hazards a
guess that Congress thus used Chapter 109A “as a template for the list of state predicates”—or, otherwise said,
that Congress “followed” the “structure and language of
Chapter 109A” in defining those state-law offenses. Ibid.
But §2252(b)(2)’s state predicates are not nearly as
similar to the federal crimes in Chapter 109A as the majority claims. That Chapter includes the following offenses:
“Aggravated sexual abuse,” §2241, “Sexual abuse,”
§2242, “Sexual abuse of a minor or ward,” §2243, and
“Abusive sexual contact,” §2244. The Chapter thus contains four crimes—one more than found in §2252(b)(2)’s
list of state offenses. If the drafters of §2252(b)(2) meant
merely to copy Chapter 109A, why would they have left
out one of its crimes? The majority has no explanation.6
And there is more. Suppose Congress, for whatever hardto-fathom reason, wanted to replicate only Chapter 109A’s
first three offenses. It would then have used the same
language, referring to “the laws of any State relating to
aggravated sexual abuse, sexual abuse, or sexual abuse of
a minor or ward.” (And had Congress used that language,
the phrase “of a minor or ward” would clearly have applied
only to the third term, to differentiate it from the otherwise identical second.) But contra the majority, see ante,
at 6, 9–10, that is not what §2252(b)(2)’s drafters did.
——————
6 In a footnote, the majority intimates that Chapter 109A contains
only three crimes—but that reading is unambiguously wrong. Unlike
the fifth through eighth sections of that chapter (which the majority
invokes to no purpose), the fourth—again, entitled “[a]busive sexual
contact”—sets out an independent substantive offense, criminalizing
acts not made illegal in the first three sections. §§2244(a)–(c); see also
42 U. S. C. §16911 (separately listing this offense in identifying who
must register as a sex offender). The majority, as noted above, gives no
reason why Congress would have ignored that fourth crime had it been
using Chapter 109A as a template.
Cite as: 577 U. S. ____ (2016)
15
KAGAN, J., dissenting
Rather than repeating the phrase “sexual abuse,” they
used the phrase “abusive sexual conduct” in the list’s last
term—which echoes, if anything, the separate crime of
“abusive sexual contact” (included in Chapter 109A’s
fourth offense, as well as in other places in the federal
code, see, e.g., 10 U. S. C. §920(d)). The choice of those
different words indicates, yet again, that Congress did not
mean, as the majority imagines, to duplicate Chapter
109A’s set of offenses.
Indeed, even the Government has refused to accept the
notion that the federal and state sexual-abuse predicates
mirror each other. The Government, to be sure, has argued that it would be “anomalous” if federal, but not
state, convictions for sexually abusing adults trigger
§2252(b)(2)’s enhanced penalty. Brief for United States
23. (I have discussed that more modest point above:
Anomalous or not, such differences between federal and
state predicates are a recurring feature of the statute. See
supra, at 12–13.) But the Government, in both briefing
and argument, rejected the idea that Congress wanted the
list of state predicates in §2252(b)(2) to mimic the crimes
in Chapter 109A; in other words, it denied that Congress
meant for the state and federal offenses to bear the same
meaning. See Brief for United States 22, n. 8; Tr. of Oral
Arg. 26. Even in the face of sustained questioning from
Members of this Court, the Government held fast to that
position. See, e.g., Tr. of Oral Arg. 25–26 (JUSTICE ALITO:
“[W]hy do you resist the argument that what Congress
was doing was picking up basically the definitions of the
Federal offenses [in Chapter 109A] that are worded almost
identically?” Assistant to the Solicitor General: “[W]e
don’t think that Congress was trying” to do that). The
listed state and federal offenses, the Government made
clear, are not intended to be copies.
The majority seems to think that view somehow consistent with its own hypothesis that Chapter 109A served
16
LOCKHART v. UNITED STATES
KAGAN, J., dissenting
as a “template” for §2252(b)(2)’s state predicates, ante, at
6; in responding to one of Lockhart’s arguments, the majority remarks that the state predicates might have a
“generic” meaning, distinct from Chapter 109A’s, ante, at
14. But if that is so, the majority’s supposed template is
not much of a template after all. The predicate state
offenses would “follow” or “parallel” Chapter 109A in a
single respect, but not in any others—that is, in including
sexual abuse of adults, but not in otherwise defining
wrongful sexual conduct (whether concerning adults or
children). Ante, at 6. The template, one might say, is good
for this case and this case only. And the majority has no
theory for why that should be so: It offers not the slimmest
explanation of how Chapter 109A can resolve today’s
question but not the many issues courts will face in the
future involving the meaning of §2252(b)(2)’s state predicate offenses. That is because no rationale would make
sense. The right and consistent view is that Chapter
109A, like the other federal predicates in §2252(b)(2), is
across-the-board irrelevant in defining that provision’s
state predicates. Thus, the federal chapter’s four differently worded crimes are independent of the three state
offenses at issue here—all of which, for the reasons I’ve
given, must “involv[e] a minor or ward.”
IV
Suppose, for a moment, that this case is not as clear as
I’ve suggested. Assume there is no way to know whether
to apply the last-antecedent or the series-qualifier rule.
Imagine, too, that the legislative history is not quite so
compelling and the majority’s “template” argument not
quite so strained. Who, then, should prevail?
This Court has a rule for how to resolve genuine ambiguity in criminal statutes: in favor of the criminal defendant. As the majority puts the point, the rule of lenity
insists that courts side with the defendant “when the
Cite as: 577 U. S. ____ (2016)
17
KAGAN, J., dissenting
ordinary canons of statutory construction have revealed no
satisfactory construction.” Ante, at 14 (citing Callanan v.
United States, 364 U. S. 587, 596 (1961)); see also Bifulco
v. United States, 447 U. S. 381, 387 (1980) (holding that
the rule of lenity “applies not only to interpretations of the
substantive ambit of criminal prohibitions, but also to the
penalties they impose”). At the very least, that principle
should tip the scales in Lockhart’s favor, because nothing
the majority has said shows that the modifying clause in
§2252(b)(2) unambiguously applies to only the last term in
the preceding series.
But in fact, Lockhart’s case is stronger. Consider the
following sentence, summarizing various points made
above: “The series-qualifier principle, the legislative history,
and the rule of lenity discussed in this opinion all point
in the same direction.” Now answer the following question: Has only the rule of lenity been discussed in this
opinion, or have the series-qualifier principle and the
legislative history been discussed as well? Even had you
not read the preceding 16-plus pages, you would know the
right answer—because of the ordinary way all of us use
language. That, in the end, is why Lockhart should win.
(Slip Opinion)
OCTOBER TERM, 2015
1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LUIS v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 14–419.
Argued November 10, 2015—Decided March 30, 2016
A federal statute provides that a court may freeze before trial certain
assets belonging to a defendant accused of violations of federal health
care or banking laws. Those assets include (1) property “obtained as
a result of ” the crime, (2) property “traceable” to the crime, and (3),
as relevant here, other “property of equivalent value.” 18 U. S. C.
§1345(a)(2). The Government has charged petitioner Luis with
fraudulently obtaining nearly $45 million through crimes related to
health care. In order to preserve the $2 million remaining in Luis’
possession for payment of restitution and other criminal penalties,
the Government secured a pretrial order prohibiting Luis from dissipating her assets, including assets unrelated to her alleged crimes.
Though the District Court recognized that the order might prevent
Luis from obtaining counsel of her choice, it held that the Sixth
Amendment did not give her the right to use her own untainted funds
for that purpose. The Eleventh Circuit affirmed.
Held: The judgment is vacated, and the case is remanded.
564 Fed. Appx. 493, vacated and remanded.
JUSTICE BREYER, joined by THE CHIEF JUSTICE, JUSTICE GINSBURG,
and JUSTICE SOTOMAYOR, concluded that the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates
the Sixth Amendment. The nature and importance of the constitutional right taken together with the nature of the assets lead to this
conclusion. Pp. 3–16.
(a) The Sixth Amendment right to counsel grants a defendant “a
fair opportunity to secure counsel of his own choice,” Powell v. Alabama, 287 U. S. 45, 53, that he “can afford to hire,” Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 624. This Court has
2
LUIS v. UNITED STATES
Syllabus
consistently referred to the right to counsel of choice as “fundamental.” Pp. 3–5.
(b) While the Government does not deny Luis’ fundamental right to
be represented by a qualified attorney whom she chooses and can afford to hire, it would nonetheless undermine the value of that right
by taking from Luis the ability to use funds she needs to pay for her
chosen attorney. The Government attempts to justify this consequence by pointing out that there are important interests on the other side of the legal equation. It wishes to guarantee that funds will
be available later to help pay for statutory penalties and restitution,
for example. The Government further argues that two previous cases
from this Court, Caplin & Drysdale, supra, at 619, and United States
v. Monsanto, 491 U. S. 600, 615, support the issuance of a restraining
order in this case. However, the nature of the assets at issue here
differs from the assets at issue in those earlier cases. And that distinction makes a difference. Pp. 5–16.
(1) Here, the property is untainted, i.e., it belongs to Luis. As described in Caplin & Drysdale and Monsanto, the Government may
well be able to freeze before trial “tainted” assets—e.g., loot, contraband, or property otherwise associated with the planning, implementing, or concealing of a crime. As a matter of property law, the
defendant’s ownership interest in such property is imperfect. For example, a different federal statute provides that title to property used
to commit a crime (or otherwise “traceable” to a crime) passes to the
Government at the instant the crime is planned or committed. See
21 U. S. C. §853(c). But here, the Government seeks to impose restrictions upon Luis’ untainted property without any showing of any
equivalent governmental interest in that property. Pp. 5–10.
(2) This distinction does not by itself answer the constitutional
question because the law of property may allow a person without a
present interest in a piece of property to impose restrictions upon a
current owner, say, to prevent waste. However, insofar as innocent
funds are needed to obtain counsel of choice, the Sixth Amendment
prohibits the court order sought here.
Three basic considerations lead to this conclusion. First, the nature of the competing interests argues against this kind of court order. On the one side is a fundamental Sixth Amendment right to assistance of counsel. On the other side is the Government’s interest in
securing its punishment of choice, as well as the victim’s interest in
securing restitution. These latter interests are important, but—
compared to the right to counsel—they seem to lie somewhat further
from the heart of a fair, effective criminal justice system. Second,
relevant, common-law legal tradition offers virtually no significant
support for the Government’s position and in fact argues to the con-
Cite as: 578 U. S. ____ (2016)
3
Syllabus
trary. Indeed, there appears to be no decision of this Court authorizing unfettered, pretrial forfeiture of the defendant’s own “innocent”
property. Third, as a practical matter, accepting the Government’s
position could erode the right to counsel considerably. It would, in
fact, unleash a principle of constitutional law with no obvious stopping place, as Congress could write more statutes authorizing restraints in other cases involving illegal behavior that come with steep
financial consequences. These defendants, often rendered indigent,
would fall back upon publicly paid counsel, including overworked and
underpaid public defenders. The upshot is a substantial risk that accepting the Government’s views would render less effective the basic
right the Sixth Amendment seeks to protect. Pp. 11–15.
(3) The constitutional line between a criminal defendant’s tainted funds and innocent funds needed to pay for counsel should prove
workable. Money may be fungible, but courts, which use tracing
rules in cases of, e.g., fraud and pension rights, have experience separating tainted assets from untainted assets, just as they have experience determining how much money is needed to cover the costs of a
lawyer. Pp. 15–16.
JUSTICE THOMAS concluded that the rule that a pretrial freeze of
untainted assets violates a defendant’s Sixth Amendment right to
counsel of choice rests strictly on the Sixth Amendment’s text and
common-law backdrop. Pp. 1–12.
(a) The Sixth Amendment abolished the common-law rule that
generally prohibited representation in felony cases. “The right to select counsel of one’s choice” is thus “the root meaning” of the Sixth
Amendment right to counsel. United States v. Gonzalez-Lopez, 548
U. S. 140, 147–148. Constitutional rights protect the necessary prerequisites for their exercise. As a result, the Sixth Amendment denies the Government unchecked power to freeze a defendant’s assets
before trial simply to secure potential forfeiture upon conviction. Unless the right to counsel protects the right to use lawfully owned
property to pay for an attorney, the right to counsel—originally understood to protect only the right to hire counsel of choice—would be
meaningless. Without pretrial protection for at least some of a defendant’s assets, the Government could nullify the right to counsel of
choice, eviscerating the Sixth Amendment’s original meaning and
purpose.
The modern, judicially created right to governmentappointed counsel does not obviate these concerns. Pp. 1–5.
(b) History confirms this textual understanding. The common-law
forfeiture tradition provides an administrable rule for the Sixth
Amendment’s protection: A criminal defendant’s untainted assets are
protected from government interference before trial and judgment,
but his tainted assets may be seized before trial as contraband or
4
LUIS v. UNITED STATES
Syllabus
through a separate in rem proceeding. Reading the Sixth Amendment to track the historical line between tainted and untainted assets avoids case-by-case adjudication and ensures that the original
meaning of the right to counsel does real work. Here, the incursion of
the pretrial asset freeze into untainted assets, for which there is no
historical tradition, violates the Sixth Amendment. Pp. 5–9.
(c) This conclusion leaves no room for an atextual balancing analysis. Pp. 9–12.
BREYER, J., announced the judgment of the Court and delivered an
opinion, in which ROBERTS, C. J., and GINSBURG and SOTOMAYOR, JJ.,
joined. THOMAS, J., filed an opinion concurring in the judgment. KENNEDY, J., filed a dissenting opinion, in which ALITO, J., joined. KAGAN,
J., filed a dissenting opinion.
Cite as: 578 U. S. ____ (2016)
1
Opinion of BREYER, J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–419
_________________
SILA LUIS, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[March 30, 2016]
JUSTICE BREYER announced the judgment of the Court
and delivered an opinion in which THE CHIEF JUSTICE,
JUSTICE GINSBURG, and JUSTICE SOTOMAYOR join.
A federal statute provides that a court may freeze before
trial certain assets belonging to a criminal defendant
accused of violations of federal health care or banking
laws. See 18 U. S. C. §1345. Those assets include: (1)
property “obtained as a result of ” the crime, (2) property
“traceable” to the crime, and (3) other “property of equivalent value.” §1345(a)(2). In this case, the Government has
obtained a court order that freezes assets belonging to the
third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her from
paying her lawyer. She claims that insofar as it does so, it
violates her Sixth Amendment “right . . . to have the Assistance of Counsel for [her] defence.” We agree.
I
In October 2012, a federal grand jury charged the petitioner, Sila Luis, with paying kickbacks, conspiring to
commit fraud, and engaging in other crimes all related to
health care.
See §1349; §371; 42 U. S. C. §1320a–
2
LUIS v. UNITED STATES
Opinion of BREYER, J.
7b(b)(2)(A). The Government claimed that Luis had
fraudulently obtained close to $45 million, almost all of
which she had already spent. Believing it would convict
Luis of the crimes charged, and hoping to preserve the $2
million remaining in Luis’ possession for payment of restitution and other criminal penalties (often referred to as
criminal forfeitures, which can include innocent—not just
tainted—assets, a point of critical importance here), the
Government sought a pretrial order prohibiting Luis from
dissipating her assets. See 18 U. S. C. §1345(a)(2). And
the District Court ultimately issued an order prohibiting
her from “dissipating, or otherwise disposing of . . . assets,
real or personal . . . up to the equivalent value of the proceeds of the Federal health care fraud ($45 million).” App.
to Pet. for Cert. A–6.
The Government and Luis agree that this court order
will prevent Luis from using her own untainted funds, i.e.,
funds not connected with the crime, to hire counsel to
defend her in her criminal case. See App. 161 (stipulating
“that an unquantified amount of revenue not connected to
the indictment [had] flowed into some of the accounts”
subject to the restraining order); ibid. (similarly stipulating that Luis used “revenue not connected to the indictment” to pay for real property that she possessed). Although the District Court recognized that the order might
prevent Luis from obtaining counsel of her choice, it held
“that there is no Sixth Amendment right to use untainted,
substitute assets to hire counsel.” 966 F. Supp. 2d 1321,
1334 (SD Fla. 2013).
The Eleventh Circuit upheld the District Court. See 564
Fed. Appx. 493, 494 (2014) ( per curiam) (referring to, e.g.,
Kaley v. United States, 571 U. S. ___ (2014); Caplin &
Drysdale, Chartered v. United States, 491 U. S. 617, 631
(1989); United States v. Monsanto, 491 U. S. 600, 616
(1989)). We granted Luis’ petition for certiorari.
Cite as: 578 U. S. ____ (2016)
3
Opinion of BREYER, J.
II
The question presented is “[w]hether the pretrial restraint of a criminal defendant’s legitimate, untainted
assets (those not traceable to a criminal offense) needed to
retain counsel of choice violates the Fifth and Sixth
Amendments.” Pet. for Cert. ii. We see no reasonable way
to interpret the relevant statutes to avoid answering this
constitutional question. Cf. Monsanto, supra, at 614.
Hence, we answer it, and our answer is that the pretrial
restraint of legitimate, untainted assets needed to retain
counsel of choice violates the Sixth Amendment. The
nature and importance of the constitutional right taken
together with the nature of the assets lead us to this
conclusion.
A
No one doubts the fundamental character of a criminal
defendant’s Sixth Amendment right to the “Assistance of
Counsel.” In Gideon v. Wainwright, 372 U. S. 335 (1963),
the Court explained:
“ ‘The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard
by counsel. Even the intelligent and educated layman
has small and sometimes no skill in the science of law.
If charged with crime, he is incapable, generally, of
determining for himself whether the indictment is
good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put
on trial without a proper charge, and convicted upon
incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill
and knowledge adequately to prepare his defense,
even though he have a perfect one. He requires the
guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty,
he faces the danger of conviction because he does not
4
LUIS v. UNITED STATES
Opinion of BREYER, J.
know how to establish his innocence.’ ” Id., at 344–
345 (quoting Powell v. Alabama, 287 U. S. 45, 68–69
(1932)).
It is consequently not surprising: first, that this Court’s
opinions often refer to the right to counsel as “fundamental,” id., at 68; see Grosjean v. American Press Co., 297
U. S. 233, 243–244 (1936) (similar); Johnson v. Zerbst, 304
U. S. 458, 462–463 (1938) (similar); second, that commentators describe the right as a “great engin[e] by which an
innocent man can make the truth of his innocence visible,”
Amar, Sixth Amendment First Principles, 84 Geo. L. J.
641, 643 (1996); see Herring v. New York, 422 U. S. 853,
862 (1975); third, that we have understood the right to
require that the Government provide counsel for an indigent defendant accused of all but the least serious crimes,
see Gideon, supra, at 344; and fourth, that we have considered the wrongful deprivation of the right to counsel a
“structural” error that so “affec[ts] the framework within
which the trial proceeds” that courts may not even ask
whether the error harmed the defendant. United States v.
Gonzalez-Lopez, 548 U. S. 140, 148 (2006) (internal quotation marks omitted); see id., at 150.
Given the necessarily close working relationship between lawyer and client, the need for confidence, and the
critical importance of trust, neither is it surprising that
the Court has held that the Sixth Amendment grants a
defendant “a fair opportunity to secure counsel of his own
choice.” Powell, supra, at 53; see Gonzalez-Lopez, supra,
at 150 (describing “these myriad aspects of representation”). This “fair opportunity” for the defendant to secure
counsel of choice has limits. A defendant has no right, for
example, to an attorney who is not a member of the bar, or
who has a conflict of interest due to a relationship with an
opposing party. See Wheat v. United States, 486 U. S. 153,
159 (1988). And an indigent defendant, while entitled to
Cite as: 578 U. S. ____ (2016)
5
Opinion of BREYER, J.
adequate representation, has no right to have the Government pay for his preferred representational choice. See
Caplin & Drysdale, 491 U. S., at 624.
We nonetheless emphasize that the constitutional right
at issue here is fundamental: “[T]he Sixth Amendment
guarantees a defendant the right to be represented by an
otherwise qualified attorney whom that defendant can
afford to hire.” Ibid.
B
The Government cannot, and does not, deny Luis’ right
to be represented by a qualified attorney whom she chooses
and can afford. But the Government would undermine
the value of that right by taking from Luis the ability to
use the funds she needs to pay for her chosen attorney.
The Government points out that, while freezing the funds
may have this consequence, there are important interests
on the other side of the legal equation: It wishes to guarantee that those funds will be available later to help pay
for statutory penalties (including forfeiture of untainted
assets) and restitution, should it secure convictions. And
it points to two cases from this Court, Caplin & Drysdale,
supra, at 619, and Monsanto, 491 U. S., at 615, which, in
the Government’s view, hold that the Sixth Amendment
does not pose an obstacle to its doing so here. In our view,
however, the nature of the assets at issue here differs from
the assets at issue in those earlier cases. And that distinction makes a difference.
1
The relevant difference consists of the fact that the
property here is untainted; i.e., it belongs to the defendant, pure and simple. In this respect it differs from a
robber’s loot, a drug seller’s cocaine, a burglar’s tools, or
other property associated with the planning, implementing, or concealing of a crime. The Government may well
6
LUIS v. UNITED STATES
Opinion of BREYER, J.
be able to freeze, perhaps to seize, assets of the latter,
“tainted” kind before trial. As a matter of property law
the defendant’s ownership interest is imperfect. The
robber’s loot belongs to the victim, not to the defendant.
See Telegraph Co. v. Davenport, 97 U. S. 369, 372 (1878)
(“The great principle that no one can be deprived of his
property without his assent, except by the processes of the
law, requires . . . that the property wrongfully transferred
or stolen should be restored to its rightful owner”). The
cocaine is contraband, long considered forfeitable to the
Government wherever found. See, e.g., 21 U. S. C. §881(a)
(“[Controlled substances] shall be subject to forfeiture to
the United States and no property right shall exist in
them”); Carroll v. United States, 267 U. S. 132, 159 (1925)
(describing the seizure of “contraband forfeitable property”). And title to property used to commit a crime (or
otherwise “traceable” to a crime) often passes to the Government at the instant the crime is planned or committed.
See, e.g., §853(c) (providing that the Government’s ownership interest in such property relates back to the time of
the crime).
The property at issue here, however, is not loot, contraband, or otherwise “tainted.” It belongs to the defendant.
That fact undermines the Government’s reliance upon
precedent, for both Caplin & Drysdale and Monsanto
relied critically upon the fact that the property at issue
was “tainted,” and that title to the property therefore had
passed from the defendant to the Government before the
court issued its order freezing (or otherwise disposing of )
the assets.
In Caplin & Drysdale, the Court considered a postconviction forfeiture that took from a convicted defendant
funds he would have used to pay his lawyer. The Court
held that the forfeiture was constitutional. In doing so,
however, it emphasized that the forfeiture statute at issue
provided that “ ‘[a]ll right, title, and interest in property
Cite as: 578 U. S. ____ (2016)
7
Opinion of BREYER, J.
[constituting or derived from any proceeds obtained from
the crime] vests in the United States upon the commission
of the act giving rise to [the] forfeiture.’ ” 491 U. S., at 625,
n. 4 (quoting §853(c)) (emphasis added). It added that the
law had “long-recognized” as “lawful” the “practice of
vesting title to any forfeitable asset[s] in the United
State[s] at the time of the crim[e].” Id., at 627. It pointed
out that the defendant did not “claim, as a general proposition, that the [vesting] provision is unconstitutional, or
that Congress cannot, as a general matter, vest title to
assets derived from the crime in the Government, as of the
date of the criminal act in question.” Id., at 627–628.
And, given the vesting language, the Court explained that
the defendant “did not hold good title” to the property. Id.,
at 627. The Court therefore concluded that “[t]here is no
constitutional principle that gives one person [namely, the
defendant] the right to give another’s [namely, the Government’s] property to a third party,” namely, the lawyer.
Id., at 628.
In Monsanto, the Court considered a pretrial restraining
order that prevented a not-yet-convicted defendant from
using certain assets to pay for his lawyer. The defendant
argued that, given this difference, Caplin & Drysdale’s
conclusion should not apply. The Court noted, however,
that the property at issue was forfeitable under the same
statute that was at issue in Caplin & Drysdale. See Monsanto, supra, at 614. And, as in Caplin & Drysdale, the
application of that statute to Monsanto’s case concerned
only the pretrial restraint of assets that were traceable to
the crime, see 491 U. S., at 602–603; thus, the statute
passed title to those funds at the time the crime was committed (i.e., before the trial), see §853(c). The Court said
that Caplin & Drysdale had already “weigh[ed] . . . th[e]
very interests” at issue. Monsanto, supra, at 616. And it
“rel[ied] on” its “conclusion” in Caplin & Drysdale to dispose of, and to reject, the defendant’s “similar constitu-
8
LUIS v. UNITED STATES
Opinion of BREYER, J.
tional claims.” 491 U. S., at 614.
JUSTICE KENNEDY prefers to read Caplin & Drysdale
and Monsanto broadly, as holding that “the Government,
having established probable cause to believe that Luis’
substitute [i.e., innocent] assets will be forfeitable upon
conviction, should be permitted to obtain a restraining
order barring her from spending those funds prior to
trial.” Post, at 6–7 (dissenting opinion). In other words,
he believes that those cases stand for the proposition that
property—whether tainted or untainted—is subject to
pretrial restraint, so long as the property might someday
be subject to forfeiture. But this reading asks too much of
our precedents. For one thing, as discussed, Caplin &
Drysdale and Monsanto involved the restraint only of
tainted assets, and thus we had no occasion to opine in
those cases about the constitutionality of pretrial restraints of other, untainted assets.
For another thing, JUSTICE KENNEDY’s broad rule ignores the statutory background against which Caplin &
Drysdale and Monsanto were decided. The Court in those
cases referenced §853(c) more than a dozen times. And it
acknowledged that whether property is “forfeitable” or
subject to pretrial restraint under Congress’ scheme is a
nuanced inquiry that very much depends on who has the
superior interest in the property at issue. See Caplin &
Drysdale, supra, at 626–628; Monsanto, 491 U. S., at 616.
We see this in, for example, §853(e)(1), which explicitly
authorizes restraining orders or injunctions against “property described in subsection (a) of this section” (i.e., tainted
assets). We see this too in §853(e)(1)(B), which requires
the Government—in certain circumstances—to give “notice to persons appearing to have an interest in the property and opportunity for hearing” before obtaining a restraining order against such property. We see this in
§853(c), which allows “bona fide purchaser[s] for value” to
keep property that would otherwise be subject to forfei-
Cite as: 578 U. S. ____ (2016)
9
Opinion of BREYER, J.
ture. And we see this in §853(n)(6)(A), which exempts
certain property from forfeiture when a third party can
show a vested interest in the property that is “superior” to
that of the Government.
The distinction that we have discussed is thus an important one, not a technicality. It is the difference between what is yours and what is mine. In Caplin & Drysdale and Monsanto, the Government wanted to impose
restrictions upon (or seize) property that the Government
had probable cause to believe was the proceeds of, or
traceable to, a crime. See Monsanto, supra, at 615. The
relevant statute said that the Government took title to
those tainted assets as of the time of the crime. See
§853(c). And the defendants in those cases consequently
had to concede that the disputed property was in an important sense the Government’s at the time the court
imposed the restrictions. See Caplin & Drysdale, supra,
at 619–620; Monsanto, supra, at 602–603.
This is not to say that the Government “owned” the
tainted property outright (in the sense that it could take
possession of the property even before obtaining a conviction). See post, at 7–10 (KENNEDY, J., dissenting). Rather,
it is to say that the Government even before trial had a
“substantial” interest in the tainted property sufficient to
justify the property’s pretrial restraint. See Caplin &
Drysdale, supra, at 627 (“[T]he property rights given the
Government by virtue of [§853(c)’s relation-back provision]
are more substantial than petitioner acknowledges”);
United States v. Stowell, 133 U. S. 1, 19 (1890) (“As soon
as [the possessor of the forfeitable asset committed the
violation] . . . , the forfeiture . . . took effect, and (though
needing judicial condemnation to perfect it) operated from
that time as a statutory conveyance to the United States of
all right, title and interest then remaining in the [possessor]; and was as valid and effectual, against all the world,
as a recorded deed” (emphasis added)).
10
LUIS v. UNITED STATES
Opinion of BREYER, J.
If we analogize to bankruptcy law, the Government, by
application of §853(c)’s relation-back provision, became
something like a secured creditor with a lien on the defendant’s tainted assets superior to that of most any other
party. See 4 Collier on Bankruptcy ¶506.03[1] (16th ed.
2015). For this reason, §853(c) has operated in our cases
as a significant limitation on criminal defendants’ property rights in such assets—even before conviction. See
Monsanto, supra, at 613 (“Permitting a defendant to use
[tainted] assets for his private purposes that, under this
[relation-back] provision, will become the property of the
United States if a conviction occurs cannot be sanctioned”); cf. Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 326 (1999) (noting
that the Court had previously authorized injunctions
against the further dissipation of property where, among
other things, “the creditor (the Government) asserted an
equitable lien on the property”).
Here, by contrast, the Government seeks to impose
restrictions upon Luis’ untainted property without any
showing of any equivalent governmental interest in that
property. Again, if this were a bankruptcy case, the Government would be at most an unsecured creditor. Although such creditors someday might collect from a debtor’s general assets, they cannot be said to have any present claim to, or interest in, the debtor’s property. See id.,
at 330 (“[B]efore judgment . . . an unsecured creditor has
no rights at law or in equity in the property of his debtor”);
see also 5 Collier on Bankruptcy ¶541.05[1][b] (“[G]eneral
unsecured creditor[s]” have “no specific property interest
in the goods held or sold by the debtor”). The competing
property interests in the tainted- and untainted-asset
contexts therefore are not “exactly the same.” Post, at 2
(KAGAN, J., dissenting). At least regarding her untainted
assets, Luis can at this point reasonably claim that the
property is still “mine,” free and clear.
Cite as: 578 U. S. ____ (2016)
11
Opinion of BREYER, J.
2
This distinction between (1) what is primarily “mine”
(the defendant’s) and (2) what is primarily “yours” (the
Government’s) does not by itself answer the constitutional
question posed, for the law of property sometimes allows a
person without a present interest in a piece of property to
impose restrictions upon a current owner, say, to prevent
waste. A holder of a reversionary interest, for example,
can prevent the owner of a life estate from wasting the
property. See, e.g., Peterson v. Ferrell, 127 N. C. 169, 170,
37 S. E. 189, 190 (1900). Those who later may become
beneficiaries of a trust are sometimes able to prevent the
trustee from dissipating the trust’s assets. See, e.g., Kollock v. Webb, 113 Ga. 762, 769, 39 S. E. 339, 343 (1901).
And holders of a contingent, future executory interest in
property (an interest that might become possessory at
some point down the road) can, in limited circumstances,
enjoin the activities of the current owner. See, e.g., Dees v.
Cheuvronts, 240 Ill. 486, 491, 88 N. E. 1011, 1012 (1909)
(“[E]quity w[ill] interfere . . . only when it is made to appear that the contingency . . . is reasonably certain to
happen, and the waste is . . . wanton and conscienceless”).
The Government here seeks a somewhat analogous order,
i.e., an order that will preserve Luis’ untainted assets so
that they will be available to cover the costs of forfeiture
and restitution if she is convicted, and if the court later
determines that her tainted assets are insufficient or
otherwise unavailable.
The Government finds statutory authority for its request in language authorizing a court to enjoin a criminal
defendant from, for example, disposing of innocent “property of equivalent value” to that of tainted property. 18
U. S. C. §1345(a)(2)(B)(i). But Luis needs some portion of
those same funds to pay for the lawyer of her choice.
Thus, the legal conflict arises. And, in our view, insofar as
innocent (i.e., untainted) funds are needed to obtain coun-
12
LUIS v. UNITED STATES
Opinion of BREYER, J.
sel of choice, we believe that the Sixth Amendment prohibits the court order that the Government seeks.
Three basic considerations lead us to this conclusion.
First, the nature of the competing interests argues against
this kind of court order. On the one side we find, as we
have previously explained, supra, at 3–5, a Sixth Amendment right to assistance of counsel that is a fundamental
constituent of due process of law, see Powell, 287 U. S.,
at 68–69. And that right includes “the right to be represented by an otherwise qualified attorney whom that
defendant can afford to hire.” Caplin & Drysdale, 491
U. S., at 624. The order at issue in this case would seriously undermine that constitutional right.
On the other side we find interests that include the
Government’s contingent interest in securing its punishment of choice (namely, criminal forfeiture) as well as the
victims’ interest in securing restitution (notably, from
funds belonging to the defendant, not the victims). While
these interests are important, to deny the Government the
order it requests will not inevitably undermine them, for,
at least sometimes, the defendant may possess other
assets—say, “tainted” property—that might be used for
forfeitures and restitution. Cf. Gonzalez-Lopez, 548 U. S.,
at 148 (“Deprivation of the right” to counsel of the defendant’s choice “is ‘complete’ when the defendant is erroneously prevented from being represented by the lawyer he
wants”). Nor do the interests in obtaining payment of a
criminal forfeiture or restitution order enjoy constitutional
protection. Rather, despite their importance, compared to
the right to counsel of choice, these interests would seem
to lie somewhat further from the heart of a fair, effective
criminal justice system.
Second, relevant legal tradition offers virtually no significant support for the Government’s position. Rather,
tradition argues to the contrary. Describing the 18thcentury English legal world (which recognized only a
Cite as: 578 U. S. ____ (2016)
13
Opinion of BREYER, J.
limited right to counsel), Blackstone wrote that “only”
those “goods and chattels” that “a man has at the time of
conviction shall be forfeited.” 4 W. Blackstone, Commentaries on the Laws of England 388 (1765) (emphasis
added); see 1 J. Chitty, Practical Treatise on the Criminal
Law 737 (1816) (“[T]he party indicted may sell any of [his
property] . . . to assist him in preparing for his defense on
the trial”).
Describing the common law as understood in 19thcentury America (which recognized a broader right to
counsel), Justice Story wrote:
“It is well known, that at the common law, in many
cases of felonies, the party forfeited his goods and
chattels to the crown. The forfeiture . . . was a part,
or at least a consequence, of the judgment of conviction. It is plain from this statement, that no right to
the goods and chattels of the felon could be acquired
by the crown by the mere commission of the offense;
but the right attached only by the conviction of the offender. . . . In the contemplation of the common law,
the offender’s right was not divested until the conviction.” The Palmyra, 12 Wheat. 1, 14 (1827).
See generally Powell, supra, at 60–61 (describing the scope
of the right to counsel in 18th-century Britain and colonial
America).
As we have explained, supra, at 6–10, cases such as
Caplin & Drysdale and Monsanto permit the Government
to freeze a defendant’s assets pretrial, but the opinions in
those cases highlight the fact that the property at issue
was “tainted,” i.e., it did not belong entirely to the defendant. We have found no decision of this Court authorizing
unfettered, pretrial forfeiture of the defendant’s own
“innocent” property—property with no connection to the
charged crime. Nor do we see any grounds for distinguishing the historic preference against preconviction forfei-
14
LUIS v. UNITED STATES
Opinion of BREYER, J.
tures from the preconviction restraint at issue here. As far
as Luis’ Sixth Amendment right to counsel of choice is
concerned, a restraining order might as well be a forfeiture; that is, the restraint itself suffices to completely deny
this constitutional right. See Gonzalez-Lopez, supra, at
148.
Third, as a practical matter, to accept the Government’s
position could well erode the right to counsel to a considerably greater extent than we have so far indicated. To
permit the Government to freeze Luis’ untainted assets
would unleash a principle of constitutional law that would
have no obvious stopping place. The statutory provision
before us authorizing the present restraining order refers
only to “banking law violation[s]” and “Federal health care
offense[s].” 18 U. S. C. §1345(a)(2). But, in the Government’s view, Congress could write more statutes authorizing pretrial restraints in cases involving other illegal
behavior—after all, a broad range of such behavior can
lead to postconviction forfeiture of untainted assets. See,
e.g., §1963(m) (providing for forfeiture of innocent, substitute assets for any violation of the Racketeer Influenced
and Corrupt Organizations Act).
Moreover, the financial consequences of a criminal
conviction are steep. Even beyond the forfeiture itself,
criminal fines can be high, and restitution orders expensive. See, e.g., §1344 ($1 million fine for bank fraud);
§3571 (mail and wire fraud fines of up to $250,000 for
individuals and $500,000 for organizations); United States
v. Gushlak, 728 F. 3d 184, 187, 203 (CA2 2013) ($17.5
million restitution award against an individual defendant
in a fraud-on-the-market case); FTC v. Trudeau, 662 F. 3d
947, 949 (CA7 2011) ($37.6 million remedial sanction for
fraud). How are defendants whose innocent assets are
frozen in cases like these supposed to pay for a lawyer—
particularly if they lack “tainted assets” because they are
innocent, a class of defendants whom the right to counsel
Cite as: 578 U. S. ____ (2016)
15
Opinion of BREYER, J.
certainly seeks to protect? See Powell, 287 U. S., at 69;
Amar, 84 Geo. L. J., at 643 (“[T]he Sixth Amendment is
generally designed to elicit truth and protect innocence”).
These defendants, rendered indigent, would fall back
upon publicly paid counsel, including overworked and
underpaid public defenders. As the Department of Justice
explains, only 27 percent of county-based public defender
offices have sufficient attorneys to meet nationally recommended caseload standards. Dept. of Justice, Bureau
of Justice Statistics, D. Farole & L. Langton, Census of
Public Defender Offices, 2007: County-based and Local
Public Defender Offices, 2007, p. 10 (Sept. 2010). And as
one amicus points out, “[m]any federal public defender
organizations and lawyers appointed under the Criminal
Justice Act serve numerous clients and have only limited
resources.” Brief for New York Council of Defense Lawyers 11. The upshot is a substantial risk that accepting the Government’s views would—by increasing the
government-paid-defender workload—render less effective
the basic right the Sixth Amendment seeks to protect.
3
We add that the constitutional line we have drawn
should prove workable. That line distinguishes between a
criminal defendant’s (1) tainted funds and (2) innocent
funds needed to pay for counsel. We concede, as JUSTICE
KENNEDY points out, post, at 12–13, that money is fungible; and sometimes it will be difficult to say whether a
particular bank account contains tainted or untainted
funds. But the law has tracing rules that help courts
implement the kind of distinction we require in this case.
With the help of those rules, the victim of a robbery, for
example, will likely obtain the car that the robber used
stolen money to buy. See, e.g., 1 G. Palmer, Law of Restitution §2.14, p. 175 (1978) (“tracing” permits a claim
against “an asset which is traceable to or the product of ”
16
LUIS v. UNITED STATES
Opinion of BREYER, J.
tainted funds); 4 A. Scott, Law of Trusts §518, pp. 3309–3314
(1956) (describing the tracing rules governing commingled
accounts). And those rules will likely also prevent Luis
from benefiting from many of the money transfers and
purchases JUSTICE KENNEDY describes. See post, at 12–13.
Courts use tracing rules in cases involving fraud, pension rights, bankruptcy, trusts, etc. See, e.g., Montanile v.
Board of Trustees of Nat. Elevator Industry Health Benefit
Plan, 577 U. S. ___, ___–___ (2016) (slip op., at 8–9). They
consequently have experience separating tainted assets
from untainted assets, just as they have experience determining how much money is needed to cover the costs of
a lawyer. See, e.g., 18 U. S. C. §1345(b) (“The court shall
proceed as soon as practicable to the hearing and determination of [actions to freeze a defendant’s tainted or untainted assets]”); 28 U. S. C. §2412(d) (courts must determine reasonable attorneys’ fees under the Equal Access to
Justice Act); see also Kaley, 571 U. S., at ___, and n. 3 (slip
op., at 3, and n. 3) (“Since Monsanto, the lower courts have
generally provided a hearing. . . . [to determine] whether
probable cause exists to believe that the assets in dispute
are traceable . . . to the crime charged in the indictment”).
We therefore see little reason to worry, as JUSTICE
KENNEDY seems to, that defendants will “be allowed to
circumvent [the usual forfeiture rules] by using . . . funds
to pay for a high, or even the highest, priced defense team
[they] can find.” Post, at 7.
*
*
*
For the reasons stated, we conclude that the defendant
in this case has a Sixth Amendment right to use her own
“innocent” property to pay a reasonable fee for the assistance of counsel. On the assumptions made here, the
District Court’s order prevents Luis from exercising that
right. We consequently vacate the judgment of the Court
of Appeals and remand the case for further proceedings.
It is so ordered.
Cite as: 578 U. S. ____ (2016)
17
, J. , J.
Opinion
of BREYER
Appendix
to opinion
of BREYER
APPENDIX
Title 18 U. S. C. §1345 provides:
“(a)(1) If a person is—
“(A) violating or about to violate this chapter or section
287, 371 (insofar as such violation involves a conspiracy to
defraud the United States or any agency thereof), or 1001
of this title;
“(B) committing or about to commit a banking law violation (as defined in section 3322(d) of this title); or
“(C) committing or about to commit a Federal health
care offense;
“the Attorney General may commence a civil action in any
Federal court to enjoin such violation.
“(2) If a person is alienating or disposing of property, or
intends to alienate or dispose of property, obtained as a
result of a banking law violation (as defined in section
3322(d) of this title) or a Federal health care offense or
property which is traceable to such violation, the Attorney
General may commence a civil action in any Federal
court—
“(A) to enjoin such alienation or disposition of property;
or
“(B) for a restraining order to—
“(i) prohibit any person from withdrawing, transferring, removing, dissipating, or disposing of any such property or property of equivalent value; and
“(ii) appoint a temporary receiver to administer such
restraining order.
“(3) A permanent or temporary injunction or restraining
order shall be granted without bond.
“(b) The court shall proceed as soon as practicable to the
18
LUIS v. UNITED STATES
, J. , J.
Opinion
of BREYER
Appendix
to opinion
of BREYER
hearing and determination of such an action, and may, at
any time before final determination, enter such a restraining order or prohibition, or take such other action, as is
warranted to prevent a continuing and substantial injury
to the United States or to any person or class of persons
for whose protection the action is brought. A proceeding
under this section is governed by the Federal Rules of
Civil Procedure, except that, if an indictment has been
returned against the respondent, discovery is governed by
the Federal Rules of Criminal Procedure.”
Cite as: 578 U. S. ____ (2016)
1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–419
_________________
SILA LUIS, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[March 30, 2016]
JUSTICE THOMAS, concurring in the judgment.
I agree with the plurality that a pretrial freeze of untainted assets violates a criminal defendant’s Sixth
Amendment right to counsel of choice. But I do not agree
with the plurality’s balancing approach. Rather, my
reasoning rests strictly on the Sixth Amendment’s text
and common-law backdrop.
The Sixth Amendment provides important limits on the
Government’s power to freeze a criminal defendant’s
forfeitable assets before trial. And, constitutional rights
necessarily protect the prerequisites for their exercise.
The right “to have the Assistance of Counsel,” U. S. Const.,
Amdt. 6, thus implies the right to use lawfully owned
property to pay for an attorney. Otherwise the right to
counsel—originally understood to protect only the right to
hire counsel of choice—would be meaningless. History
confirms this textual understanding. The common law
limited pretrial asset restraints to tainted assets. Both
this textual understanding and history establish that the
Sixth Amendment prevents the Government from freezing
untainted assets in order to secure a potential forfeiture.
The freeze here accordingly violates the Constitution.
I
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the
2
LUIS v. UNITED STATES
THOMAS, J., concurring in judgment
Assistance of Counsel for his defence.” As originally understood, this right guaranteed a defendant the right “to
employ a lawyer to assist in his defense.” Scott v. Illinois,
440 U. S. 367, 370 (1979). The common law permitted
counsel to represent defendants charged with misdemeanors, but not felonies other than treason. W. Beaney, The
Right to Counsel in American Courts 8–9 (1955). The
Sixth Amendment abolished the rule prohibiting representation in felony cases, but was “not aimed to compel the
State to provide counsel for a defendant.” Betts v. Brady,
316 U. S. 455, 466 (1942), overruled by Gideon v. Wainwright, 372 U. S. 335 (1963); see Beaney, supra, at 27–36.
“The right to select counsel of one’s choice” is thus “the
root meaning” of the Sixth Amendment right to counsel.
United States v. Gonzalez-Lopez, 548 U. S. 140, 147–148
(2006).
The Sixth Amendment denies the Government unchecked power to freeze a defendant’s assets before trial
simply to secure potential forfeiture upon conviction. If
that bare expectancy of criminal punishment gave the
Government such power, then a defendant’s right to counsel of choice would be meaningless, because retaining an
attorney requires resources. The law has long recognized
that the “[a]uthorization of an act also authorizes a necessary predicate act.” A. Scalia & B. Garner, Reading Law:
The Interpretation of Legal Texts 192 (2012) (discussing
the “predicate-act canon”). As Thomas Cooley put it with
respect to Government powers, “where a general power is
conferred or duty enjoined, every particular power necessary for the exercise of the one, or the performance of the
other, is also conferred.” Constitutional Limitations 63
(1868); see 1 J. Kent, Commentaries on American Law 464
(13th ed. 1884) (“[W]henever a power is given by a statute,
everything necessary to the making of it effectual or requisite to attain the end is implied”). This logic equally
applies to individual rights. After all, many rights are
Cite as: 578 U. S. ____ (2016)
3
THOMAS, J., concurring in judgment
powers reserved to the People rather than delegated to the
Government. Cf. U. S. Const., Amdt. 10 (“The powers not
delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people”).
Constitutional rights thus implicitly protect those closely
related acts necessary to their exercise. “There comes a
point . . . at which the regulation of action intimately and
unavoidably connected with [a right] is a regulation of [the
right] itself.” Hill v. Colorado, 530 U. S. 703, 745 (2000)
(Scalia, J., dissenting). The right to keep and bear arms,
for example, “implies a corresponding right to obtain the
bullets necessary to use them,” Jackson v. City and County
of San Francisco, 746 F. 3d 953, 967 (CA9 2014) (internal quotation marks omitted), and “to acquire and maintain proficiency in their use,” Ezell v. Chicago, 651 F. 3d
684, 704 (CA7 2011). See District of Columbia v. Heller,
554 U. S. 570, 617–618 (2008) (citing T. Cooley, General
Principles of Constitutional Law 271 (2d ed. 1891) (discussing the implicit right to train with weapons)); United
States v. Miller, 307 U. S. 174, 180 (1939) (citing 1 H.
Osgood, The American Colonies in the 17th Century 499
(1904) (discussing the implicit right to possess ammunition)); Andrews v. State, 50 Tenn. 165, 178 (1871) (discussing both rights). Without protection for these closely
related rights, the Second Amendment would be toothless.
Likewise, the First Amendment “right to speak would be
largely ineffective if it did not include the right to engage
in financial transactions that are the incidents of its exercise.” McConnell v. Federal Election Comm’n, 540 U. S.
93, 252 (2003) (Scalia, J., concurring in part, concurring in
judgment in part, and dissenting in part).
The same goes for the Sixth Amendment and the financial resources required to obtain a lawyer. Without constitutional protection for at least some of a defendant’s assets, the Government could nullify the right to counsel of
4
LUIS v. UNITED STATES
THOMAS, J., concurring in judgment
choice. As the plurality says, an unlimited power to freeze
assets before trial “would unleash a principle of constitutional law that would have no obvious stopping place.”
Ante, at 14; cf. McCulloch v. Maryland, 4 Wheat. 316, 431
(1819) (“[T]he power to tax involves the power to destroy”
and that “power to destroy may defeat and render useless
the power to create”). Unless the right to counsel also
protects the prerequisite right to use one’s financial resources for an attorney, I doubt that the Framers would
have gone through the trouble of adopting such a flimsy
“parchment barrie[r].” The Federalist No. 48, p. 308 (C.
Rossiter ed. 1961) (J. Madison).
An unlimited power to freeze a defendant’s potentially
forfeitable assets in advance of trial would eviscerate the
Sixth Amendment’s original meaning and purpose. At
English common law, forfeiture of all real and personal
property was a standard punishment for felonies. See 4
W. Blackstone, Commentaries on the Laws of England 95
(1769) (Blackstone). That harsh penalty never caught on
in America. See Calero-Toledo v. Pearson Yacht Leasing
Co., 416 U. S. 663, 682–683 (1974). The First Congress
banned it. See Crimes Act of 1790, §24, 1 Stat. 117 (“[N]o
conviction or judgment for any of the offences aforesaid,
shall work corruption of blood, or any forfeiture of estate”).
But the Constitution did not. See Art. III, §3, cl. 2 (“[N]o
Attainder of Treason shall work Corruption of Blood, or
Forfeiture except during the Life of the Person attainted”).
If the Government’s mere expectancy of a total forfeiture
upon conviction were sufficient to justify a complete pretrial asset freeze, then Congress could render the right to
counsel a nullity in felony cases. That would have shocked
the Framers. As discussed, before adoption of the Sixth
Amendment, felony cases (not misdemeanors) were precisely when the common law denied defendants the right
to counsel. See supra, at ___. With an unlimited power to
freeze assets before trial, the Government could well
Cite as: 578 U. S. ____ (2016)
5
THOMAS, J., concurring in judgment
revive the common-law felony rule that the Sixth Amendment was designed to abolish.
The modern, judicially created right to Governmentappointed counsel does not obviate these concerns. As
understood in 1791, the Sixth Amendment protected a
defendant’s right to retain an attorney he could afford. It
is thus no answer, as the principal dissent replies, that
defendants rendered indigent by a pretrial asset freeze
can resort to public defenders. Post, at 14 (opinion of
KENNEDY, J.). The dissent’s approach nullifies the original understanding of the right to counsel. To ensure that
the right to counsel has meaning, the Sixth Amendment
limits the assets the Government may freeze before trial
to secure eventual forfeiture.
II
The longstanding rule against restraining a criminal
defendant’s untainted property before conviction guarantees a meaningful right to counsel. The common-law
forfeiture tradition provides the limits of this Sixth
Amendment guarantee. That tradition draws a clear line
between tainted and untainted assets. The only alternative to this common-law reading is case-by-case adjudication to determine which freezes are “legitimate” and which
are an “abuse of . . . power.” McCulloch, 4 Wheat., at 430.
This piecemeal approach seems woefully inadequate.
Such questions of degree are “unfit for the judicial department.” Ibid. But see Caplin & Drysdale, Chartered v.
United States, 491 U. S. 617, 635 (1989) (stating in dicta
that “[c]ases involving particular abuses can be dealt with
individually . . . when (and if) any such cases arise”).
Fortunately the common law drew a clear line between
tainted and untainted assets.
Pretrial freezes of untainted forfeitable assets did not
emerge until the late 20th century. “ ‘[T]he lack of historical precedent’ ” for the asset freeze here is “ ‘[p]erhaps the
6
LUIS v. UNITED STATES
THOMAS, J., concurring in judgment
most telling indication of a severe constitutional problem.’ ” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 505–506 (2010) (quoting
Free Enterprise Fund v. Public Company Accounting
Oversight Bd., 537 F. 3d 667, 699 (CADC 2008) (Kavanaugh, J., dissenting)). Indeed, blanket asset freezes
are so tempting that the Government’s “prolonged reticence would be amazing if [they] were not understood to
be constitutionally proscribed.”
Plaut v. Spendthrift
Farm, Inc., 514 U. S. 211, 230 (1995); see Printz v. United
States, 521 U. S. 898, 907–908 (1997) (reasoning that the
lack of early federal statutes commandeering state executive officers “suggests an assumed absence of such power”
given “the attractiveness of that course to Congress”).
The common law prohibited pretrial freezes of criminal
defendants’ untainted assets. As the plurality notes, ante,
at 13, for in personam criminal forfeitures like that at
issue here, any interference with a defendant’s property
traditionally required a conviction. Forfeiture was “a part,
or at least a consequence, of the judgment of conviction.”
The Palmyra, 12 Wheat. 1, 14 (1827) (Story, J.). The
defendant’s “property cannot be touched before . . . the
forfeiture is completed.” 1 J. Chitty, A Practical Treatise
on the Criminal Law 737 (5th ed. 1847). This rule applied
equally “to money as well as specific chattels.” Id., at 736.
And it was not limited to full-blown physical seizures.
Although the defendant’s goods could be appraised and
inventoried before trial, he remained free to “sell any of
them for his own support in prison, or that of his family, or
to assist him in preparing for his defence on the trial.” Id.,
at 737 (emphasis added). Blackstone likewise agreed that
a defendant “may bona fide sell any of his chattels, real or
personal, for the sustenance of himself and family between
the [offense] and conviction.” 4 Blackstone 380; see Fleetwood’s Case, 8 Co. Rep. 171a, 171b, 77 Eng. Rep. 731, 732
(K. B. 1611) (endorsing this rule). At most, a court could
Cite as: 578 U. S. ____ (2016)
7
THOMAS, J., concurring in judgment
unwind prejudgment fraudulent transfers after conviction.
4 Blackstone 381; see Jones v. Ashurt, Skin. 357, 357–358,
90 Eng. Rep. 159 (K. B. 1693) (unwinding a fraudulent
sale after conviction because it was designed to defeat
forfeiture). Numerous English authorities confirm these
common-law principles. Chitty, supra, at 736–737 (collecting sources).
The common law did permit the Government, however,
to seize tainted assets before trial. For example, “seizure
of the res has long been considered a prerequisite to the
initiation of in rem forfeiture proceedings.” United States
v. James Daniel Good Real Property, 510 U. S. 43, 57
(1993) (emphasis added); see The Brig Ann, 9 Cranch 289,
291 (1815) (Story, J.). But such forfeitures were traditionally “fixed . . . by determining what property has been
‘tainted’ by unlawful use.” Austin v. United States, 509
U. S. 602, 627 (1993) (Scalia, J., concurring in part and
concurring in judgment). So the civil in rem forfeiture
tradition tracks the tainted-untainted line. It provides no
support for the asset freeze here.
There is a similarly well-established Fourth Amendment tradition of seizing contraband and stolen goods
before trial based only on probable cause. See Carroll v.
United States, 267 U. S. 132, 149–152 (1925) (discussing
this history); Boyd v. United States, 116 U. S. 616, 623–
624 (1886) (same). Tainted assets fall within this tradition because they are the fruits or instrumentalities of
crime. So the Government may freeze tainted assets
before trial based on probable cause to believe that they
are forfeitable. See United States v. Monsanto, 491 U. S.
600, 602–603, 615–616 (1989). Nevertheless, our precedents require “a nexus . . . between the item to be seized
and criminal behavior.” Warden, Md. Penitentiary v.
Hayden, 387 U. S. 294, 307 (1967). Untainted assets
almost never have such a nexus. The only exception is
that some property that is evidence of crime might techni-
8
LUIS v. UNITED STATES
THOMAS, J., concurring in judgment
cally qualify as “untainted” but nevertheless has a nexus
to criminal behavior. See ibid. Thus, untainted assets do
not fall within the Fourth Amendment tradition either.
It is certainly the case that some early American statutes did provide for civil forfeiture of untainted substitute
property. See Registry Act, §12, 1 Stat. 293 (providing for
forfeiture of a ship or “the value thereof ”); Collection Act
of July 31, 1789, §22, 1 Stat. 42 (similar for goods); United
States v. Bajakajian, 524 U. S. 321, 341 (1998) (collecting
statutes). These statutes grew out of a broader “sixcentury-long tradition of in personam customs fines equal
to one, two, three, or even four times the value of the
goods at issue.” Id., at 345–346 (KENNEDY, J., dissenting).
But this long tradition of in personam customs fines
does not contradict the general rule against pretrial seizures of untainted property. These fines’ in personam
status strongly suggests that the Government did not
collect them by seizing property at the outset of litigation.
As described, that process was traditionally required for
in rem forfeiture of tainted assets. See supra, at ___.
There appears to be scant historical evidence, however,
that forfeiture ever involved seizure of untainted assets
before trial and judgment, except in limited circumstances
not relevant here. Such summary procedures were reserved for collecting taxes and seizures during war. See
Phillips v. Commissioner, 283 U. S. 589, 595 (1931); Miller
v. United States, 11 Wall. 268, 304–306 (1871). The Government’s right of action in tax and custom-fine cases may
have been the same—“a civil action of debt.” Bajakajian,
supra, at 343, n. 18; Stockwell v. United States, 13 Wall.
531, 543 (1871); Adams v. Woods, 2 Cranch 336, 341
(1805). Even so, nothing suggests trial and judgment were
expendable. See Miller, supra, at 304–305 (stating in
dicta that confiscating Confederate property through
in rem proceedings would have raised Fifth and Sixth
Amendment concerns had they not been a war measure).
Cite as: 578 U. S. ____ (2016)
9
THOMAS, J., concurring in judgment
The common law thus offers an administrable line: A
criminal defendant’s untainted assets are protected from
Government interference before trial and judgment. His
tainted assets, by contrast, may be seized before trial as
contraband or through a separate in rem proceeding.
Reading the Sixth Amendment to track the historical line
between tainted and untainted assets makes good sense.
It avoids case-by-case adjudication, and ensures that the
original meaning of the right to counsel does real work.
The asset freeze here infringes the right to counsel because it “is so broad that it differs not only in degree, but
in kind, from its historical antecedents.” James Daniel
Good, supra, at 82 (THOMAS, J., concurring in part and
dissenting in part).
The dissenters object that, before trial, a defendant has
an identical property interest in tainted and untainted
assets. See post, at 8–9 (opinion of KENNEDY, J.); post, at
2 (opinion of KAGAN, J.). Perhaps so. I need not take a
position on the matter. Either way, that fact is irrelevant.
Because the pretrial asset freeze here crosses into untainted assets, for which there is no historical tradition, it
is unconstitutional. Any such incursion violates the Sixth
Amendment.
III
Since the asset freeze here violates the Sixth Amendment, the plurality correctly concludes that the judgment
below must be reversed. But I cannot go further and
endorse the plurality’s atextual balancing analysis. The
Sixth Amendment guarantees the right to counsel of
choice. As discussed, a pretrial freeze of untainted assets
infringes that right. This conclusion leaves no room for
balancing. Moreover, I have no idea whether, “compared
to the right to counsel of choice,” the Government’s interests in securing forfeiture and restitution lie “further from
the heart of a fair, effective criminal justice system.” Ante,
10
LUIS v. UNITED STATES
THOMAS, J., concurring in judgment
at 12. Judges are not well suited to strike the right “balance” between those incommensurable interests. Nor do I
think it is our role to do so. The People, through ratification, have already weighed the policy tradeoffs that constitutional rights entail. See Heller, 554 U. S., at 634–635.
Those tradeoffs are thus not for us to reevaluate. “The
very enumeration of the right” to counsel of choice denies
us “the power to decide . . . whether the right is really
worth insisting upon.” Id., at 634. Such judicial balancing
“do[es] violence” to the constitutional design. Crawford v.
Washington, 541 U. S. 36, 67–68 (2004). And it is out of
step with our interpretive tradition. See Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L. J. 943,
949–952 (1987) (noting that balancing did not appear in
the Court’s constitutional analysis until the mid-20th
century).
The plurality’s balancing analysis also casts doubt on
the constitutionality of incidental burdens on the right to
counsel. For the most part, the Court’s precedents hold
that a generally applicable law placing only an incidental
burden on a constitutional right does not violate that
right. See R. A. V. v. St. Paul, 505 U. S. 377, 389–390
(1992) (explaining that content-neutral laws do not violate
the First Amendment simply because they incidentally
burden expressive conduct); Employment Div., Dept. of
Human Resources of Ore. v. Smith, 494 U. S. 872, 878–882
(1990) (likewise for religion-neutral laws that burden
religious exercise).
Criminal-procedure rights tend to follow the normal
incidental-burden rule.
The Constitution does not
“forbi[d] every government-imposed choice in the criminal
process that has the effect of discouraging the exercise of
constitutional rights.” Chaffin v. Stynchcombe, 412 U. S.
17, 30 (1973). The threat of more severe charges if a
defendant refuses to plead guilty does not violate his right
to trial. See Bordenkircher v. Hayes, 434 U. S. 357, 365
Cite as: 578 U. S. ____ (2016)
11
THOMAS, J., concurring in judgment
(1978). And, in my view, prosecutorial arguments that
raise the “cost” of remaining silent do not violate a defendant’s right against self-incrimination (at least as a matter
of original meaning). See Mitchell v. United States, 526
U. S. 314, 342–343 (1999) (THOMAS, J., dissenting); id., at
331–336 (Scalia, J., dissenting).
The Sixth Amendment arguably works the same way.
“[A] defendant may not insist on representation by an
attorney he cannot afford.” Wheat v. United States, 486
U. S. 153, 159 (1988). The Constitution perhaps guarantees only a “freedom of counsel” akin to the First Amendment freedoms of speech and religion that also “depen[d]
in part on one’s financial wherewithal.” Caplin & Drysdale, 491 U. S., at 628. Numerous laws make it more
difficult for defendants to retain a lawyer. But that fact
alone does not create a Sixth Amendment problem. For
instance, criminal defendants must still pay taxes even
though “these financial levies may deprive them of resources that could be used to hire an attorney.” Id., at
631–632. So I lean toward the principal dissent’s view
that incidental burdens on the right to counsel of choice
would not violate the Sixth Amendment. See post, at 5–6,
11–12 (opinion of KENNEDY, J.).
On the other hand, the Court has said that the right to
counsel guarantees defendants “a fair opportunity to
secure counsel of [their] choice.” Powell v. Alabama, 287
U. S. 45, 52–53 (1932) (emphasis added). The state court
in Powell denied the defendants such an opportunity, the
Court held, by moving to trial so quickly (six days after
indictment) that the defendants had no chance to communicate with family or otherwise arrange for representation. Ibid. The schedule in Powell was not designed to
block counsel, which suggests the usual incidental-burden
rule might be inapt in the Sixth Amendment context. I
leave the question open because this case does not require
an answer.
12
LUIS v. UNITED STATES
THOMAS, J., concurring in judgment
The asset freeze here is not merely an incidental burden
on the right to counsel of choice; it targets a defendant’s
assets, which are necessary to exercise that right, simply
to secure forfeiture upon conviction. The prospect of that
criminal punishment, however, is precisely why the Constitution guarantees a right to counsel.
The Sixth
Amendment does not permit the Government’s bare expectancy of forfeiture to void that right. When the potential
of a conviction is the only basis for interfering with a
defendant’s assets before trial, the Constitution requires
the Government to respect the longstanding common-law
protection for a defendant’s untainted property.
For these reasons, I concur only in the judgment.
Cite as: 578 U. S. ____ (2016)
1
KENNEDY, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–419
_________________
SILA LUIS, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[March 30, 2016]
JUSTICE KENNEDY, with whom JUSTICE ALITO joins,
dissenting.
The plurality and JUSTICE THOMAS find in the Sixth
Amendment a right of criminal defendants to pay for an
attorney with funds that are forfeitable upon conviction so
long as those funds are not derived from the crime alleged.
That unprecedented holding rewards criminals who hurry
to spend, conceal, or launder stolen property by assuring
them that they may use their own funds to pay for an
attorney after they have dissipated the proceeds of their
crime. It matters not, under today’s ruling, that the defendant’s remaining assets must be preserved if the victim
or the Government is to recover for the property wrongfully taken. By granting a defendant a constitutional
right to hire an attorney with assets needed to make a
property-crime victim whole, the plurality and JUSTICE
THOMAS ignore this Court’s precedents and distort the
Sixth Amendment right to counsel.
The result reached today makes little sense in cases
that involve fungible assets preceded by fraud, embezzlement, or other theft. An example illustrates the point.
Assume a thief steals $1 million and then wins another $1
million in a lottery. After putting the sums in separate
accounts, he or she spends $1 million. If the thief spends
his or her lottery winnings, the Government can restrain
the stolen funds in their entirety. The thief has no right to
2
LUIS v. UNITED STATES
KENNEDY, J., dissenting
use those funds to pay for an attorney. Yet if the thief
heeds today’s decision, he or she will spend the stolen
money first; for if the thief is apprehended, the $1 million
won in the lottery can be used for an attorney. This result
is not required by the Constitution.
The plurality reaches its conclusion by weighing a defendant’s Sixth Amendment right to counsel of choice
against the Government’s interest in preventing the dissipation of assets forfeitable upon conviction. In so doing,
it—like JUSTICE THOMAS—sweeps aside the decisions in
Caplin & Drysdale, Chartered v. United States, 491 U. S.
617 (1989), and United States v. Monsanto, 491 U. S. 600
(1989), both of which make clear that a defendant has no
Sixth Amendment right to spend forfeitable assets (or
assets that will be forfeitable) on an attorney. The principle the Court adopted in those cases applies with equal
force here. Rather than apply that principle, however, the
plurality and concurrence adopt a rule found nowhere in
the Constitution or this Court’s precedents—that the
Sixth Amendment protects a person’s right to spend otherwise forfeitable assets on an attorney so long as those
assets are not related to or the direct proceeds of the
charged crime. Ante, at 1 (plurality opinion); ante, at 1
(THOMAS, J., concurring in judgment). The reasoning in
these separate opinions is incorrect, and requires this
respectful dissent.
I
This case arises from petitioner Sila Luis’ indictment for
conspiring to commit health care fraud against the United
States. The Government alleges that, as part of her illegal
scheme, Luis used her health care companies to defraud
Medicare by billing for services that were not medically
necessary or actually provided. The charged crimes, the
Government maintains, resulted in the payment of $45
million in improper Medicare benefits to Luis’ companies.
Cite as: 578 U. S. ____ (2016)
3
KENNEDY, J., dissenting
The same day Luis was indicted, the Government initiated a civil action under 18 U. S. C. §1345 to restrain Luis’
assets before her criminal trial, including substitute property of an amount equivalent to the value of the proceeds
of her alleged crimes. To establish its entitlement to a
restraining order, the Government showed that Luis and
her co-conspirators were dissipating the illegally obtained
assets. In particular, they were transferring money involved in the scheme to various individuals and entities,
including shell corporations owned by Luis’ family members. As part of this process, Luis opened and closed well
over 40 bank accounts and withdrew large amounts of
cash to hide the conspiracy’s proceeds. Luis personally
received almost $4.5 million in funds and used at least
some of that money to purchase luxury items, real estate,
and automobiles, and to travel. Based on this and other
evidence, the District Court entered an order prohibiting
Luis from spending up to $45 million of her assets.
Before the Court of Appeals for the Eleventh Circuit,
Luis argued that the Sixth Amendment required that she
be allowed to spend the restrained substitute assets on an
attorney. The Court of Appeals disagreed, concluding that
“[t]he arguments made by Luis . . . are foreclosed by the
United States Supreme Court decisions in . . . Caplin &
Drysdale [and] Monsanto.” 564 Fed. Appx. 493, 494 (2014)
( per curiam). In my view the Court of Appeals was correct, and its judgment should be affirmed.
II
A
In Caplin & Drysdale, a law firm had represented a
defendant charged with running a massive drugdistribution scheme. The defendant pleaded guilty and
agreed to forfeit his assets. The law firm then sought to
recover a portion of the forfeited assets for its legal fees.
The firm argued that, when a defendant needs forfeitable
4
LUIS v. UNITED STATES
KENNEDY, J., dissenting
assets to pay for an attorney, the forfeiture of those assets
violates the defendant’s Sixth Amendment right to be
represented by his counsel of choice.
The Court rejected the firm’s argument. The Sixth
Amendment, the Court explained, “guarantees defendants
in criminal cases the right to adequate representation, but
those who do not have the means to hire their own lawyers
have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts.”
Caplin & Drysdale, 491 U. S., at 624. As for the right to
choose one’s own attorney, the Court observed that “nothing in [the forfeiture statute] prevents a defendant from
hiring the attorney of his choice, or disqualifies any attorney from serving as a defendant’s counsel.” Id., at 625.
Even defendants who possess “nothing but assets the
Government seeks to have forfeited . . . may be able to find
lawyers willing to represent them, hoping that their fees
will be paid in the event of acquittal, or via some other
means that a defendant might come by in the future.”
Ibid. The burden imposed by forfeiture law, the Court
concluded, is thus “a limited one.” Ibid.
Caplin & Drysdale also repudiated the firm’s contention
that the Government has only a modest interest in forfeitable assets that may be used to retain an attorney. In
light of the importance of separating criminals from their
ill-gotten gains and providing restitution to victims of
crime, the Court found “a strong governmental interest in
obtaining full recovery of all forfeitable assets, an interest
that overrides any Sixth Amendment interest in permitting criminals to use assets adjudged forfeitable to pay for
their defense.” Id., at 631.
The same day the Court decided Caplin & Drysdale it
decided Monsanto, which addressed the pretrial restraint
of a defendant’s assets “where the defendant seeks to use
those assets to pay an attorney.” 491 U. S., at 602. The
Court rejected the notion that there is a meaningful dis-
Cite as: 578 U. S. ____ (2016)
5
KENNEDY, J., dissenting
tinction, for Sixth Amendment purposes, between the
restraint of assets before trial and the forfeiture of assets
after trial: “[I]f the Government may, post-trial, forbid the
use of forfeited assets to pay an attorney, then surely no
constitutional violation occurs when, after probable cause
is adequately established, the Government obtains an
order barring a defendant from frustrating that end by
dissipating his assets prior to trial.” Id., at 616. The
Court noted, moreover, that “it would be odd to conclude
that the Government may not restrain property . . . in [a
defendant’s] possession, based on a finding of probable
cause, when we have held that (under appropriate circumstances), the Government may restrain persons where
there is a finding of probable cause.” Id., at 615–616.
When a defendant himself can be restrained pretrial,
there is “no constitutional infirmity” in a similar pretrial
restraint of a defendant’s property “to protect its ‘appearance’ at trial and protect the community’s interest in full
recovery of any ill-gotten gains.” Id., at 616.
B
The principle the Court announced in Caplin & Drysdale and Monsanto controls the result here. Those cases
establish that a pretrial restraint of assets forfeitable
upon conviction does not contravene the Sixth Amendment
even when the defendant possesses no other funds with
which to pay for an attorney. The restraint itself does not
prevent a defendant from seeking to convince his or her
counsel of choice to take on the representation without
advance payment. See Caplin & Drysdale, 491 U. S., at
625. It does not disqualify any attorney the defendant
might want. Ibid. And it does not prevent a defendant
from borrowing funds to pay for an attorney who is otherwise too expensive. To be sure, a pretrial restraint may
make it difficult for a defendant to secure counsel who
insists that high defense costs be paid in advance. That
6
LUIS v. UNITED STATES
KENNEDY, J., dissenting
difficulty, however, does not result in a Sixth Amendment
violation any more than high taxes or other government
exactions that impose a similar burden. See, e.g., id., at
631–632 (“Criminal defendants . . . are not exempted from
federal, state, and local taxation simply because these
financial levies may deprive them of resources that could
be used to hire an attorney”).
The pretrial restraint in Monsanto was no more burdensome than the pretrial restraint at issue here. Luis, like
the defendant in Monsanto, was not barred from obtaining
the assistance of any particular attorney. She was free to
seek lawyers willing to represent her in the hopes that
their fees would be paid at some future point. In short,
§1345’s authorization of a pretrial restraint of substitute
assets places no greater burden on a defendant like Luis
than the forfeiture and pretrial restraint statute placed on
the defendant in Monsanto.
In addition, the Government has the same “strong . . .
interest in obtaining full recovery of all forfeitable assets”
here as it did in Caplin & Drysdale and Monsanto. See
Caplin & Drysdale, supra, at 631. If Luis is convicted,
the Government has a right to recover Luis’ substitute
assets—the money she kept for herself while spending the
taxpayer dollars she is accused of stealing. Just as the
Government has an interest in ensuring Luis’ presence at
trial—an interest that can justify a defendant’s pretrial
detention—so too does the Government have an interest in
ensuring the availability of her substitute assets after
trial, an interest that can justify pretrial restraint.
One need look no further than the Court’s concluding
words in Monsanto to know the proper result here: “[N]o
constitutional violation occurs when, after probable cause
[to believe that a defendant’s assets will be forfeitable] is
adequately established, the Government obtains an order
barring a defendant from . . . dissipating his assets prior to
trial.” 491 U. S., at 616. The Government, having estab-
Cite as: 578 U. S. ____ (2016)
7
KENNEDY, J., dissenting
lished probable cause to believe that Luis’ substitute
assets will be forfeitable upon conviction, should be permitted to obtain a restraining order barring her from
spending those funds prior to trial. Luis should not be
allowed to circumvent that restraint by using the funds to
pay for a high, or even the highest, priced defense team
she can find.
III
The plurality maintains that Caplin & Drysdale and
Monsanto do not apply because “the nature of the assets at
issue here differs from the assets at issue in those earlier
cases.” Ante, at 5. According to the plurality, the property
here “belongs to the defendant, pure and simple.” Ibid. It
states that, while “title to property used to commit a crime
. . . often passes to the Government at the instant the
crime is planned or committed,” title to Luis’ untainted
property has not passed to the Government. Ante, at 6.
“That fact,” the plurality concludes, “undermines the
Government’s reliance upon precedent, for both Caplin &
Drysdale and Monsanto relied critically upon the fact that
the property at issue was ‘tainted,’ and that title to the
property therefore had passed from the defendant to the
Government before the court issued its order freezing (or
otherwise disposing of) the assets.” Ibid.
These conclusions depend upon a key premise: The
Government owns tainted assets before a defendant is
convicted. That premise is quite incorrect, for the common
law and this Court’s precedents establish that the opposite
is true. The Government does not own property subject to
forfeiture, whether tainted or untainted, until the Government wins a judgment of forfeiture or the defendant is
convicted. As Blackstone noted with emphasis, “goods and
chattels are forfeited by conviction.” 4 W. Blackstone,
Commentaries on the Laws of England 380 (1769) (Blackstone). Justice Story likewise observed that “no right to
8
LUIS v. UNITED STATES
KENNEDY, J., dissenting
the goods and chattels of the felon could be acquired by the
crown by the mere commission of the offence; but the right
attached only by the conviction of the offender.” The
Palmyra, 12 Wheat. 1, 14 (1827); ibid. (“In the contemplation of the common law, the offender’s right was not devested until the conviction”).
These authorities demonstrate that Caplin & Drysdale
and Monsanto cannot be distinguished based on “the
nature of the assets at issue.” Title to the assets in those
cases did not pass from the defendant to the Government
until conviction. As a result, the assets restrained before
conviction in Monsanto were on the same footing as the
assets restrained here: There was probable cause to believe that the assets would belong to the Government upon
conviction. But when the court issued its restraining
order, they did not. The Government had no greater
ownership interest in Monsanto’s tainted assets than it
has in Luis’ substitute assets.
The plurality seeks to avoid this conclusion by relying
on the relation-back doctrine. In its view the doctrine
gives the Government title to tainted assets upon the
commission of a crime rather than upon conviction or
judgment of forfeiture. Even assuming, as this reasoning
does, that the relation-back doctrine applies only to tainted
assets—but see United States v. McHan, 345 F. 3d 262,
270–272 (CA4 2003)—the doctrine does not do the work
the plurality’s analysis requires.
The relation-back doctrine, which is incorporated in
some forfeiture statutes, see, e.g., 21 U. S. C. §853(c), has
its origins in the common law. Under this legal construct,
the Government’s title to certain types of forfeitable property relates back to the time at which the defendant committed the crime giving rise to the forfeiture. See 4 Blackstone 375 (“forfeiture [of real estates] relates backwards to
the time of the treason committed; so as to avoid all intermediate sales and incumbrances”); United States v.
Cite as: 578 U. S. ____ (2016)
9
KENNEDY, J., dissenting
Parcel of Rumson, N. J., Land, 507 U. S. 111, 125 (1993)
(plurality opinion). The doctrine’s purpose is to prevent
defendants from avoiding forfeiture by transferring their
property to third parties. The doctrine, however, does not
alter the time at which title to forfeitable property passes
to the Government. Title is transferred only when a conviction is obtained or the assets are otherwise forfeited; it
is only once this precondition is met that relation back to
the time of the offense is permitted. See ibid. (The relation-back doctrine’s “fictional and retroactive vesting” is
“not self-executing”); id., at 132 (Scalia, J., concurring in
judgment) (“The relation-back rule applies only in cases
where the Government’s title has been consummated by
seizure, suit, and judgment, or decree of condemnation,
whereupon the doctrine of relation carries back the title to
the commission of the offense” (internal quotation marks,
brackets, and citations omitted)); United States v. Grundy,
3 Cranch 337, 350–351 (1806) (Marshall, C. J., opinion for
the Court) (a forfeitable asset does not “ves[t] in the government until some legal step shall be taken for the assertion of its right”); 4 Blackstone 375 (“But, though after
attainder the forfeiture relates back to the time of the
treason committed, yet it does not take effect unless an
attainder be had”). In short, forfeitable property does not
belong to the Government in any sense before judgment or
conviction. Cf. ante, at 9 (plurality opinion). Until the
Government wins a judgment or conviction, “someone else
owns the property.” Parcel of Rumson, supra, at 127.
The plurality is correct to note that Caplin & Drysdale
discussed the relation-back provision in the forfeiture
statute at issue. The Caplin & Drysdale Court did not do
so, however, to suggest that forfeitable assets can be restrained only when the assets are tainted. Rather, the
Court referred to the provision to rebut the law firm’s
argument that the United States has less of an interest in
forfeitable property than robbery victims have in their
10
LUIS v. UNITED STATES
KENNEDY, J., dissenting
stolen property. 491 U. S., at 627–628. More to the point,
central to the Court’s decision was its observation that,
because the Government obtained “title to [the defendant’s] assets upon conviction,” it would be “peculiar” to
hold that the Sixth Amendment still gave the defendant
the right to pay his attorney with those assets. Id., at 628.
Monsanto reinforced that view, holding that the pretrial
restraint of assets—money to which the Government does
not yet have title—is permissible even when the defendant
wants to use those assets to pay for counsel. 491 U. S., at
616. True, the assets in Caplin & Drysdale and Monsanto
happened to be derived from the criminal activity alleged;
but the Court’s reasoning in those cases was based on the
Government’s entitlement to recoup money from criminals
who have profited from their crimes, not on tracing or
identifying the actual assets connected to the crime. For
this reason, the principle the Court announced in those
cases applies whenever the Government obtains (or will
obtain) title to assets upon conviction. Nothing in either
case depended on the assets being tainted or justifies
refusing to apply the rule from those cases here.
The plurality makes much of various statutory provisions that, in its view, give the United States a superior
interest before trial in tainted assets but not untainted
ones. See ante, at 8–9. That view, however, turns not on
any reasoning specific to the Sixth Amendment but rather
on Congress’ differential treatment of tainted versus
untainted assets. The plurality makes no attempt to
explain why Congress’ decision in §1345 to permit the
pretrial restraint of substitute assets is not also relevant
to its analysis. More to the point, Congress’ statutory
treatment of property is irrelevant to a Sixth Amendment
analysis. The protections afforded by the Sixth Amendment should not turn on congressional whims.
The plurality’s concern over the implications of the
Government’s position appears animated by a hypothetical
Cite as: 578 U. S. ____ (2016)
11
KENNEDY, J., dissenting
future case where a defendant’s assets are restrained not
to return stolen funds but, for example, to pay a fine. That
case, however, is not the case before the Court. Section
1345 authorizes pretrial restraints to preserve substitute
assets, not to provide for fines greater than the amounts
stolen. The holdings in Caplin & Drysdale and Monsanto,
and what should be the holding today, thus, do not address the result in a case involving a fine. The governmental interests at stake when a fine is at issue are quite
separate and distinct from the interests implicated here.
This case implicates the Government’s interest in preventing the dissipation, transfer, and concealment of stolen
funds, as well as its interest in preserving for victims any
funds that remain. Those interests justify, in cases like
this one, the pretrial restraint of substitute assets.
IV
The principle the plurality and JUSTICE THOMAS announce today—that a defendant has a right to pay for an
attorney with forfeitable assets so long as those assets are
not related to or the direct proceeds of the crime alleged—
has far-reaching implications. There is no clear explanation why this principle does not extend to the exercise of
other constitutional rights. “If defendants have a right to
spend forfeitable assets on attorney’s fees, why not on
exercises of the right to speak, practice one’s religion, or
travel?” Caplin & Drysdale, 491 U. S., at 628. Nor does
either opinion provide any way to distinguish between the
restraint at issue here and other governmental interferences with a defendant’s assets. If the restraint of Luis’
assets violates the Sixth Amendment, could the same be
said of any imposition on a criminal defendant’s assets?
Cf. id., at 631 (“[S]eizures of assets to secure potential tax
liabilities . . . may impair a defendant’s ability to retain
counsel . . . [y]et these assessments have been upheld
against constitutional attack”). If a defendant is fined in a
12
LUIS v. UNITED STATES
KENNEDY, J., dissenting
prior matter, is the Government barred from collecting the
fine if it will leave the defendant unable to afford a particular attorney in a current case? No explanation is provided for what, if any, limits there are on the invented
exemption for attorney’s fees.
The result today also creates arbitrary distinctions
between defendants. Money, after all, is fungible. There
is no difference between a defendant who has preserved
his or her own assets by spending stolen money and a
defendant who has spent his or her own assets and
preserved stolen cash instead. Yet the plurality and
concurrence—for different reasons—find in the Sixth
Amendment the rule that greater protection is given to the
defendant who, by spending, laundering, exporting, or
concealing stolen money first, preserves his or her remaining funds for use on an attorney.
The true winners today are sophisticated criminals who
know how to make criminal proceeds look untainted.
They do so every day. They “buy cashier’s checks, money
orders, nonbank wire transfers, prepaid debit cards, and
traveler’s checks to use instead of cash for purchases or
bank deposits.” Dept. of Treasury, National Money Laundering Risk Assessment 2015, p. 3. They structure their
transactions to avoid triggering recordkeeping and reporting requirements. Ibid. And they open bank accounts in
other people’s names and through shell companies, all to
disguise the origins of their funds. Ibid.
The facts of this case illustrate the measures one might
take to conceal or dispose of ill-gotten gains. In declarations relied on by the District Court, the Federal Bureau of
Investigation (FBI) Special Agent investigating the case
explained that “Luis transferred monies or caused the
transfer of monies received from Medicare to . . . family
members and companies owned by family members,”
including $1,471,000 to her husband, and over a million
dollars to her children and former daughter-in-law. App.
Cite as: 578 U. S. ____ (2016)
13
KENNEDY, J., dissenting
72–73. She also “used Medicare monies for foreign travel,”
including approximately 31 trips to Mexico, “where she
owns several properties and has numerous bank accounts.” Id., at 73. She “transferred Medicare monies
overseas through international wire transfers to Mexico.”
Ibid. And the Government was “able to trace Medicare
proceeds going into [all but one of the] bank account[s]
owned by Defendant Luis and/or her companies listed in
the Court’s” temporary restraining order. Id., at 74. No
doubt Luis would have enjoyed her travel and expenditures even more had she known that, were her alleged
wrongs discovered, a majority of the Justices would insist
that she be allowed to pay her chosen legal team at the
price they set rather than repay her victim.
Notwithstanding that the Government established
probable cause to believe that Luis committed numerous
crimes and used the proceeds of those crimes to line her
and her family’s pockets, the plurality and JUSTICE
THOMAS reward Luis’ decision to spend the money she is
accused of stealing rather than her own. They allow Luis
to bankroll her private attorneys as well as “the best and
most industrious investigators, experts, paralegals, and
law clerks” money can buy—a legal defense team Luis
claims she cannot otherwise afford. See Corrected Motion
to Modify the Restraining Order in No. 12–Civ–23588,
p. 13 (SD Fla., Nov. 16, 2012). The Sixth Amendment does
not provide such an unfettered right to counsel of choice.
It is well settled that the right to counsel of choice is
limited in important respects. A defendant cannot demand a lawyer who is not a member of the bar. Wheat v.
United States, 486 U. S. 153, 159 (1988). Nor may a defendant insist on an attorney who has a conflict of interest. Id., at 159, 164. And, as quite relevant here, “a defendant may not insist on representation by an attorney
he cannot afford.” Id., at 159. As noted earlier, “those
who do not have the means to hire their own lawyers have
14
LUIS v. UNITED STATES
KENNEDY, J., dissenting
no cognizable complaint so long as they are adequately
represented by attorneys appointed by the courts.” Caplin
& Drysdale, 491 U. S., at 624. As a result of the District
Court’s order, Luis simply cannot afford the legal team she
desires unless they are willing to represent her without
advance payment. For Sixth Amendment purposes, the
only question here is whether Luis’ right to adequate
representation is protected. That question is not before
the Court. Neither Luis nor the plurality nor JUSTICE
THOMAS suggests that Luis will receive inadequate representation if she is not able to use the restrained funds.
And this is for good reason. Given the large volume of
defendants in the criminal justice system who rely on
public representation, it would be troubling to suggest
that a defendant who might be represented by a public
defender will receive inadequate representation. See
generally T. Giovanni & R. Patel, Gideon at 50: Three
Reforms to Revive the Right to Counsel 1 (2013), online at
http://www.brennancenter.org/sites/default/files/publications/
Gideon_Report_040913.pdf (as last visited Mar. 28, 2016).
Since Luis cannot afford the legal team she desires, and
because there is no indication that she will receive inadequate representation as a result, she does not have a
cognizable Sixth Amendment complaint.
The plurality does warn that accepting the Government’s position “would—by increasing the governmentpaid-defender workload—render less effective the basic
right the Sixth Amendment seeks to protect.” Ante, at 15.
Public-defender offices, the plurality suggests, already
lack sufficient attorneys to meet nationally recommended
caseload standards. Ibid. But concerns about the caseloads of public-defender offices do not justify a constitutional command to treat a defendant accused of committing a lucrative crime differently than a defendant who is
indigent from the outset. The Constitution does not require victims of property crimes to fund subsidies for
Cite as: 578 U. S. ____ (2016)
15
KENNEDY, J., dissenting
members of the private defense bar.
Because the rule announced today is anchored in the
Sixth Amendment, moreover, it will frustrate not only the
Federal Government’s use of §1345 but also the States’
administration of their forfeiture schemes. Like the Federal Government, States also face criminals who engage in
money laundering through extensive enterprises that
extend to other States and beyond. Where a defendant
has put stolen money beyond a State’s reach, a State
should not be precluded from freezing the assets the defendant has in hand. The obstacle that now stands in the
States’ way is not found in the Constitution. It is of the
Court’s making.
Finally, the plurality posits that its decision “should
prove workable” because courts “have experience separating tainted assets from untainted assets, just as they have
experience determining how much money is needed to
cover the costs of a lawyer.” Ante, at 15–16. Neither of
these assurances is adequate.
As to the first, the plurality cites a number of sources for
the proposition that courts have rules that allow them to
implement the distinction it adopts. Ibid. Those rules,
however, demonstrate the illogic of the conclusion that
there is a meaningful difference between the actual dollars
stolen and the dollars of equivalent value in a defendant’s
bank account. The plurality appears to agree that, if a
defendant is indicted for stealing $1 million, the Government can obtain an order preventing the defendant from
spending the $1 million he or she is believed to have stolen. The situation gets more complicated, however, when
the defendant deposits the stolen $1 million into an account that already has $1 million. If the defendant then
spends $1 million from the account, it cannot be determined with certainty whether the money spent was stolen
money rather than money the defendant already had. The
question arises, then, whether the Government can re-
16
LUIS v. UNITED STATES
KENNEDY, J., dissenting
strain the remaining million.
One of the treatises on which the plurality relies answers that question. The opinion cites A. Scott’s Law of
Trusts to support the claim that “the law has tracing rules
that help courts implement the kind of distinction . . .
require[d] in this case.” Ante, at 15–16. The treatise says
that, if a “wrongdoer has mingled misappropriated money
with his own money and later makes withdrawals from
the mingled fund,” assuming the withdrawals do not
result in a zero balance, a person who has an interest in
the misappropriated money can recover it from the
amount remaining in the account. 4 A. Scott, Law of
Trusts §518, pp. 3309–3310 (1956). Based on this rule,
one would expect the plurality to agree that, in the above
hypothetical, the Government could restrain up to the full
amount of the stolen funds—that is, the full $1 million—
without having to establish whether the $1 million the
defendant spent was stolen money or not. If that is so, it
is hard to see why its opinion treats as different a situation where the defendant has two bank accounts—one
with the $1 million from before the crime and one with the
stolen $1 million. If the defendant spends the money in
the latter account, the Government should be allowed to
freeze the money in the former account in the same way it
could if the defendant spent the money out of a single,
commingled account. The Sixth Amendment provides no
justification for the decision to mandate different treatment in these all-but-identical situations.
The plurality sees “little reason to worry” about defendants circumventing forfeiture because courts can use rules
like the tracing rule discussed above. Ante, at 16. It also
asserts that these rules “will likely . . . prevent Luis from
benefiting from many of [her] money transfers and purchases.” Ibid. That proposition is doubtful where, as here,
“a lot of money was taken out in cash from the defendant’s
bank accounts” because “[y]ou can’t trace cash.” App. 155.
Cite as: 578 U. S. ____ (2016)
17
KENNEDY, J., dissenting
Even were that not the case, this assertion fails to appreciate that it takes time to trace tainted assets. As the FBI
agent testified, at the time of the hearing both the tracing
and the FBI’s analysis were “still ongoing.” Ibid. The
whole purpose of a pretrial restraint under §1345 is to
maintain the status quo in cases, like this one, where a
defendant is accused of committing crimes that involve
fungible property, e.g., a banking law violation or a federal
health care offense. The plurality’s approach serves to
benefit the most sophisticated of criminals whose web of
transfers and concealment will take the longest to unravel. For if the Government cannot establish at the
outset that every dollar subject to restraint is derived from
the crime alleged, the defendant can spend that money on
whatever defense team he or she desires.
Of equal concern is the assertion that a defendant’s
right to counsel of choice is limited to only those attorneys
who charge a “reasonable fee.” Ante, at 16. If Luis has a
right to use the restrained substitute assets to pay for the
counsel of her choice, then why can she not hire the most
expensive legal team she can afford? In the plurality’s
view, the reason Luis can use the restrained funds for an
attorney is because they are still hers. But if that is so,
then she should be able to use all $2 million of her remaining assets to pay for a lawyer. The plurality’s willingness
to curtail the very right it recognizes reflects the need to
preserve substitute assets from further dissipation.
*
*
*
Today’s ruling abandons the principle established in
Caplin & Drysdale and Monsanto. In its place is an approach that creates perverse incentives and provides
protection for defendants who spend stolen money rather
than their own.
In my respectful view this is incorrect, and the judgment
of the Court of Appeals should be affirmed.
Cite as: 578 U. S. ____ (2016)
1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–419
_________________
SILA LUIS, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[March 30, 2016]
JUSTICE KAGAN, dissenting.
I find United States v. Monsanto, 491 U. S. 600 (1989), a
troubling decision. It is one thing to hold, as this Court
did in Caplin & Drysdale, Chartered v. United States, 491
U. S. 617 (1989), that a convicted felon has no Sixth
Amendment right to pay his lawyer with funds adjudged
forfeitable. Following conviction, such assets belong to the
Government, and “[t]here is no constitutional principle
that gives one person the right to give another’s property
to a third party.” Id., at 628. But it is quite another thing
to say that the Government may, prior to trial, freeze
assets that a defendant needs to hire an attorney, based
on nothing more than “probable cause to believe that the
property will ultimately be proved forfeitable.” Monsanto,
491 U. S., at 615. At that time, “the presumption of innocence still applies,” and the Government’s interest in the
assets is wholly contingent on future judgments of conviction and forfeiture. Kaley v. United States, 571 U. S. ___,
___ (2014) (slip op., at 6). I am not altogether convinced
that, in this decidedly different circumstance, the Government’s interest in recovering the proceeds of crime
ought to trump the defendant’s (often highly consequential) right to retain counsel of choice.
But the correctness of Monsanto is not at issue today.
Petitioner Sila Luis has not asked this Court either to
overrule or to modify that decision; she argues only that it
2
LUIS v. UNITED STATES
KAGAN, J., dissenting
does not answer the question presented here. And because Luis takes Monsanto as a given, the Court must do
so as well.
On that basis, I agree with the principal dissent that
Monsanto controls this case. See ante, at 5–7 (opinion of
KENNEDY, J.). Because the Government has established
probable cause to believe that it will eventually recover
Luis’s assets, she has no right to use them to pay an attorney. See Monsanto, 491 U. S., at 616 (“[N]o constitutional violation occurs when, after probable cause is adequately established, the Government obtains an order
barring a defendant from . . . dissipating his assets prior to
trial”).
The plurality reaches a contrary result only by differentiating between the direct fruits of criminal activity and
substitute assets that become subject to forfeiture when
the defendant has run through those proceeds. See ante,
at 5–6. But as the principal dissent shows, the Government’s and the defendant’s respective legal interests in
those two kinds of property, prior to a judgment of guilt,
are exactly the same: The defendant maintains ownership
of either type, with the Government holding only a contingent interest. See ante, at 7–10. Indeed, the plurality’s
use of the word “tainted,” to describe assets at the preconviction stage, makes an unwarranted assumption
about the defendant’s guilt. See ante, at 5 (characterizing
such assets as, for example, “robber’s loot”). Because the
Government has not yet shown that the defendant committed the crime charged, it also has not shown that allegedly tainted assets are actually so.
And given that money is fungible, the plurality’s approach leads to utterly arbitrary distinctions as among
criminal defendants who are in fact guilty. See ante, at 12
(opinion of KENNEDY, J.). The thief who immediately
dissipates his ill-gotten gains and thereby preserves his
other assets is no more deserving of chosen counsel than
Cite as: 578 U. S. ____ (2016)
3
KAGAN, J., dissenting
the one who spends those two pots of money in reverse
order. Yet the plurality would enable only the first defendant, and not the second, to hire the lawyer he wants.
I cannot believe the Sixth Amendment draws that irrational line, much as I sympathize with the plurality’s
effort to cabin Monsanto. Accordingly, I would affirm the
judgment below.
(Slip Opinion)
OCTOBER TERM, 2015
1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LUNA TORRES v. LYNCH, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 14–1096. Argued November 3, 2015—Decided May 19, 2016
Any alien convicted of an “aggravated felony” after entering the United
States is deportable, ineligible for several forms of discretionary relief, and subject to expedited removal. 8 U. S. C. §§1227(a)(2)(A)(iii),
(3). An “aggravated felony” is defined as any of numerous offenses
listed in §1101(a)(43), each of which is typically identified either as
an offense “described in” a specific federal statute or by a generic label (e.g., “murder”). Section 1101(a)(43)’s penultimate sentence
states that each enumerated crime is an aggravated felony irrespective of whether it violates federal, state, or foreign law.
Petitioner Jorge Luna Torres (Luna), a lawful permanent resident,
pleaded guilty in a New York court to attempted third-degree arson.
When immigration officials discovered his conviction, they initiated
removal proceedings. The Immigration Judge determined that
Luna’s arson conviction was for an “aggravated felony” and held that
Luna was therefore ineligible for discretionary relief. The Board of
Immigration Appeals affirmed. It found the federal and New York
arson offenses to be identical except for the former’s requirement that
the crime have a connection to interstate or foreign commerce. Because the federal statute’s commerce element serves only a jurisdictional function, the Board held, New York’s arson offense is “described in” the federal statute, 18 U. S. C. §844(i), for purposes of
determining whether an alien has been convicted of an aggravated
felony. The Second Circuit denied review.
Held: A state offense counts as a §1101(a)(43) “aggravated felony” when
it has every element of a listed federal crime except one requiring a
connection to interstate or foreign commerce.
Because Congress lacks general constitutional authority to punish
crimes, most federal offenses include a jurisdictional element to tie
2
LUNA TORRES v. LYNCH
Syllabus
the substantive crime to one of Congress’s enumerated powers. State
legislatures are not similarly constrained, and so state crimes do not
need such a jurisdictional hook. That discrepancy creates the issue
here—whether a state offense lacking a jurisdictional element but
otherwise mirroring a particular federal offense can be said to be “described” by that offense. Dictionary definitions of the word “described” do not clearly resolve this question one way or the other.
Rather, two contextual considerations decide this case: §1101(a)(43)’s
penultimate sentence and a well-established background principle
that distinguishes between substantive and jurisdictional elements in
criminal statutes. Pp. 4–21.
(a) Section §1101(a)(43)’s penultimate sentence shows that Congress meant the term “aggravated felony” to capture serious crimes
regardless of whether they are made illegal by the Federal Government, a State, or a foreign country. But Luna’s view would substantially undercut that function by excluding from the Act’s coverage all
state and foreign versions of any enumerated federal offense containing an interstate commerce element. And it would do so in a particularly perverse fashion—excluding state and foreign convictions for
many of §1101(a)(43)’s gravest crimes (e.g., most child pornography
offenses), while reaching convictions for far less harmful offenses
(e.g., operating an unlawful gambling business). Luna theorizes that
such haphazard coverage might reflect Congress’s belief that crimes
with an interstate connection are generally more serious than those
without. But it is implausible that Congress viewed the presence of
an interstate commerce element as separating serious from nonserious conduct. Luna’s theory misconceives the function of interstate commerce elements and runs counter to the penultimate sentence’s central message—that the state, federal, or foreign nature of a
crime is irrelevant. And his claim that many serious crimes excluded
for want of an interstate commerce element would nonetheless count
as §1101(a)(43)(F) “crime[s] of violence” provides little comfort: That
alternative would not include nearly all such offenses, nor even the
worst ones. Pp. 7–14.
(b) The settled practice of distinguishing between substantive and
jurisdictional elements in federal criminal statutes also supports
reading §1101(a)(43) to include state analogues that lack only an interstate commerce requirement. Congress uses substantive and jurisdictional elements for different reasons and does not expect them
to receive identical treatment. See, e.g., United States v. Yermian,
468 U. S. 63, 68. And that is true where, as here, the judicial task is
to compare federal and state offenses. See Lewis v. United States,
523 U. S. 155, 165. Pp. 14–19.
764 F. 3d 152, affirmed.
Cite as: 578 U. S. ____ (2016)
3
Syllabus
KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and KENNEDY, GINSBURG, and ALITO, JJ., joined. SOTOMAYOR, J., filed a
dissenting opinion, in which THOMAS and BREYER, JJ., joined.
Cite as: 578 U. S. ____ (2016)
1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–1096
_________________
JORGE LUNA TORRES, PETITIONER v. LORETTA E.
LYNCH, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[May 19, 2016]
JUSTICE KAGAN delivered the opinion of the Court.
The Immigration and Nationality Act (INA or Act)
imposes certain adverse immigration consequences on an
alien convicted of an “aggravated felony.” The INA defines
that term by listing various crimes, most of which are
identified as offenses “described in” specified provisions of
the federal criminal code. Immediately following that list,
the Act provides that the referenced offenses are aggravated felonies irrespective of whether they are “in violation of Federal[,] State[,]” or foreign law. 108 Stat. 4322, 8
U. S. C. §1101(a)(43). In this case, we must decide if a
state crime counts as an aggravated felony when it corresponds to a specified federal offense in all ways but one—
namely, the state crime lacks the interstate commerce
element used in the federal statute to establish legislative
jurisdiction (i.e., Congress’s power to enact the law). We
hold that the absence of such a jurisdictional element is
immaterial: A state crime of that kind is an aggravated
felony.
I
The INA makes any alien convicted of an “aggravated
2
LUNA TORRES v. LYNCH
Opinion of the Court
felony” after entering the United States deportable. See
§1227(a)(2)(A)(iii). Such an alien is also ineligible for
several forms of discretionary relief, including cancellation
of removal—an order allowing a deportable alien to remain in the country. See §1229b(a)(3). And because of his
felony, the alien faces expedited removal proceedings. See
§1228(a)(3)(A).
The Act defines the term “aggravated felony” by way of
a long list of offenses, now codified at §1101(a)(43). In all,
that provision’s 21 subparagraphs enumerate some 80
different crimes. In more than half of those subparagraphs, Congress specified the crimes by citing particular
federal statutes. According to that common formulation,
an offense is an aggravated felony if it is “described in,”
say, 18 U. S. C. §2251 (relating to child pornography),
§922(g) (relating to unlawful gun possession), or, of particular relevance here, §844(i) (relating to arson and explosives). 8 U. S. C. §§1101(a)(43)(E), (I). Most of the remaining subparagraphs refer to crimes by their generic
labels, stating that an offense is an aggravated felony if,
for example, it is “murder, rape, or sexual abuse of a minor.” §1101(a)(43)(A). Following the entire list of crimes,
§1101(a)(43)’s penultimate sentence reads: “The term
[aggravated felony] applies to an offense described in this
paragraph whether in violation of Federal or State law
and applies to such an offense in violation of the law of a
foreign country for which the term of imprisonment was
completed within the previous 15 years.” So, putting aside
the 15-year curlicue, the penultimate sentence provides
that an offense listed in §1101(a)(43) is an aggravated
felony whether in violation of federal, state, or foreign law.
Petitioner Jorge Luna Torres, who goes by the name
George Luna, immigrated to the United States as a child
and has lived here ever since as a lawful permanent resident. In 1999, he pleaded guilty to attempted arson in the
third degree, in violation of New York law; he was sen-
Cite as: 578 U. S. ____ (2016)
3
Opinion of the Court
tenced to one day in prison and five years of probation.
Seven years later, immigration officials discovered his
conviction and initiated proceedings to remove him from
the country. During those proceedings, Luna applied for
cancellation of removal. But the Immigration Judge found
him ineligible for that discretionary relief because his
arson conviction qualified as an aggravated felony. See
App. to Pet. for Cert. 21a–22a.
The Board of Immigration Appeals (Board) affirmed,
based on a comparison of the federal and New York arson
statutes. See id., at 15a–17a. The INA, as just noted,
provides that “an offense described in” 18 U. S. C. §844(i),
the federal arson and explosives statute, is an aggravated
felony. Section 844(i), in turn, makes it a crime to “maliciously damage[ ] or destroy[ ], or attempt[ ] to damage or
destroy, by means of fire or an explosive, any building [or]
vehicle . . . used in interstate or foreign commerce or in
any activity affecting interstate or foreign commerce.” For
its part, the New York law that Luna was convicted under
prohibits “intentionally damag[ing],” or attempting to
damage, “a building or motor vehicle by starting a fire or
causing an explosion.” N. Y. Penal Law Ann. §§110,
150.10 (West 2010). The state law, the Board explained,
thus matches the federal statute element-for-element with
one exception: The New York law does not require a connection to interstate commerce. According to the Board,
that single difference did not matter because the federal
statute’s commerce element is “jurisdictional”—that is, its
function is to establish Congress’s power to legislate. See
App. to Pet for Cert. 16a–17a. Given that the two laws’
substantive (i.e., non-jurisdictional) elements map onto
each other, the Board held, the New York arson offense is
“described in” 18 U. S. C. §844(i).
The Court of Appeals for the Second Circuit denied
Luna’s petition for review of the Board’s ruling. See 764
F. 3d 152 (2014). The court’s decision added to a Circuit
4
LUNA TORRES v. LYNCH
Opinion of the Court
split over whether a state offense is an aggravated felony
when it has all the elements of a listed federal crime
except one requiring a connection to interstate commerce.1
We granted certiorari. 576 U. S. ___ (2015).
II
The issue in this case arises because of the distinctive
role interstate commerce elements play in federal criminal
law. In our federal system, “Congress cannot punish
felonies generally,” Cohens v. Virginia, 6 Wheat. 264, 428
(1821); it may enact only those criminal laws that are
connected to one of its constitutionally enumerated powers, such as the authority to regulate interstate commerce.
As a result, most federal offenses include, in addition to
substantive elements, a jurisdictional one, like the interstate commerce requirement of §844(i). The substantive
elements “primarily define[ ] the behavior that the statute
calls a ‘violation’ of federal law,” Scheidler v. National
Organization for Women, Inc., 547 U. S. 9, 18 (2006)—or,
as the Model Penal Code puts the point, they relate to “the
harm or evil” the law seeks to prevent, §1.13(10). The
jurisdictional element, by contrast, ties the substantive
offense (here, arson) to one of Congress’s constitutional
powers (here, its authority over interstate commerce), thus
spelling out the warrant for Congress to legislate. See id.,
at 17–18 (explaining that Congress intends “such statutory terms as ‘affect commerce’ or ‘in commerce’ . . . as terms
of art connecting the congressional exercise of legislative
authority with the constitutional provision (here, the
——————
1 Compare Espinal-Andrades v. Holder, 777 F. 3d 163 (CA4 2015)
(finding an aggravated felony in that circumstance); Spacek v. Holder,
688 F. 3d 536 (CA8 2012) (same); Nieto Hernandez v. Holder, 592 F. 3d
681 (CA5 2009) (same); Negrete-Rodriguez v. Mukasey, 518 F. 3d 497
(CA7 2008) (same); United States v. Castillo-Rivera, 244 F. 3d 1020
(CA9 2001) (same), with Bautista v. Attorney General, 744 F. 3d 54
(CA3 2014) (declining to find an aggravated felony).
Cite as: 578 U. S. ____ (2016)
5
Opinion of the Court
Commerce Clause) that grants Congress that authority”).
For obvious reasons, state criminal laws do not include
the jurisdictional elements common in federal statutes.2
State legislatures, exercising their plenary police powers,
are not limited to Congress’s enumerated powers; and so
States have no reason to tie their substantive offenses to
those grants of authority. See, e.g., United States v. Lopez,
514 U. S. 549, 567 (1995). In particular, state crimes do
not contain interstate commerce elements because a State
does not need such a jurisdictional hook. Accordingly,
even state offenses whose substantive elements match up
exactly with a federal law’s will part ways with respect to
interstate commerce. That slight discrepancy creates the
issue here: If a state offense lacks an interstate commerce
element but otherwise mirrors one of the federal statutes
listed in §1101(a)(43), does the state crime count as an
aggravated felony? Or, alternatively, does the jurisdictional difference reflected in the state and federal laws
preclude that result, no matter the laws’ substantive
correspondence?
Both parties begin with the statutory text most directly
at issue, disputing when a state offense (here, arson) is
“described in” an enumerated federal statute (here, 18
U. S. C. §844(i)). Luna, armed principally with Black’s
Law Dictionary, argues that “described in” means “expressed” or “set forth” in—which, he says, requires the
state offense to include each one of the federal law’s ele——————
2 That flat statement is infinitesimally shy of being wholly true. We
have found a handful of state criminal laws with an interstate commerce element, out of the tens (or perhaps hundreds) of thousands of
state crimes on the books. Mississippi, for example, lifted essentially
verbatim the text of the federal money laundering statute when drafting its own, and thus wound up with such an element. See Miss. Code
Ann. §97–23–101 (rev. 2014). But because the incidence of such laws is
so vanishingly small, and the few that exist play no role in Luna’s
arguments, we proceed without qualifying each statement of the kind
above.
6
LUNA TORRES v. LYNCH
Opinion of the Court
ments. Brief for Petitioner 15–16.3 The Government,
brandishing dictionaries of its own, contends that the
statutory phrase has a looser meaning—that “describing
entails . . . not precise replication,” but “convey[ance of ] an
idea or impression” or of a thing’s “central features.” Brief
for Respondent 17.4 On that view, “described in,” as opposed to the more precise “defined in” sometimes found in
statutes, denotes that the state offense need only incorporate the federal law’s core, substantive elements.
But neither of those claims about the bare term “described in” can resolve this case. Like many words, “describe” takes on different meanings in different contexts.
Consider two ways in which this Court has used the word.
In one case, “describe” conveyed exactness: A contractual
provision, we wrote, “describes the subject [matter] with
great particularity[,] . . . giv[ing] the precise number of
pounds [of tobacco], the tax for which each pound was
liable, and the aggregate of the tax.” Ryan v. United
States, 19 Wall. 514, 517 (1874). In another case, not:
“The disclosure provision is meant,” we stated, “to describe
the law to consumers in a manner that is concise and
comprehensible to the layman—which necessarily means
that it will be imprecise.” CompuCredit Corp. v. Greenwood, 565 U. S. 95, 102 (2012). So staring at, or even
looking up, the words “described in” cannot answer
whether a state offense must replicate every last element
of a listed federal statute, including its jurisdictional one,
——————
3 Black’s Law Dictionary 401 (5th ed. 1979) (defining “describe” as to
“express, explain, set forth, relate, recount, narrate, depict, delineate,
portray”). Luna also cites Webster’s New Collegiate Dictionary 307
(1976), which defines “describe” to mean “to represent or give an
account of in words.”
4 See American Heritage Dictionary of the English Language 490 (5th
ed. 2011) (defining “describe” as “[t]o convey an idea or impression of ”);
Webster’s Third New International Dictionary 610 (1986) (defining
“describe” as “to convey an image or notion of” or “trace or traverse the
outline of ”).
Cite as: 578 U. S. ____ (2016)
7
Opinion of the Court
to qualify as an aggravated felony. In considering that
issue, we must, as usual, “interpret the relevant words not
in a vacuum, but with reference to the statutory context.”
Abramski v. United States, 573 U. S. ___, ___ (2014) (slip
op., at 9).5
Here, two contextual considerations decide the matter.
The first is §1101(a)(43)’s penultimate sentence, which
shows that Congress meant the term “aggravated felony”
to capture serious crimes regardless of whether they are
prohibited by federal, state, or foreign law. The second is
a well-established background principle distinguishing
between substantive and jurisdictional elements in federal
criminal statutes. We address each factor in turn.
A
Section 1101(a)(43)’s penultimate sentence, as noted
——————
5 The dissent disagrees, contending that the word “describe” decides
this case in Luna’s favor because a “description cannot refer to features
that the thing being described does not have.” Post, at 5 (opinion of
SOTOMAYOR, J.). Says the dissent: If a Craigslist ad “describes” an
apartment as having an “in-unit laundry, a dishwasher, rooftop access,
central A/C, and a walk-in closet,” it does not describe an apartment
lacking rooftop access. Ibid. That is true enough, but irrelevant. The
dissent is right that when someone describes an object by a list of
specific characteristics, he means that the item has each of those
attributes. But things are different when someone uses a more general
descriptor—even when that descriptor (as here, a federal statute) itself
has a determinate set of elements. It would be natural, for example, to
say (in the exact syntax of §1101(a)(43)) that a person followed the
itinerary for a journey through Brazil that is “described in” a Lonely
Planet guide if he traveled every leg of the tour other than a brief
“detour north to Petrópolis.” The Lonely Planet, On the Road: Destination Brazil, http://media.lonelyplanet.com/shop/pdfs/brazil-8-gettingstarted.pdf (all Internet materials as last visited May 16, 2016). And
similarly, a person would say that she had followed the instructions for
setting up an iPhone that are “described in” the user’s manual even if
she in fact ignored the one (specifically highlighted there) telling her to
begin by “read[ing] important safety information” to “avoid injury.”
Apple, Set Up iPhone, http://help.apple.com/iphone/9/#iph3bf43d79.
8
LUNA TORRES v. LYNCH
Opinion of the Court
above, provides: “The term [aggravated felony] applies to
an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense
in violation of the law of a foreign country for which the
term of imprisonment was completed within the previous
15 years.” See supra, at 2. That sentence (except for the
time limit on foreign convictions) declares the source of
criminal law irrelevant: The listed offenses count as aggravated felonies regardless of whether they are made
illegal by the Federal Government, a State, or a foreign
country. That is true of the crimes identified by reference
to federal statutes (as here, an offense described in 18
U. S. C. §844(i)), as well as those employing generic labels
(for example, murder). As even Luna recognizes, state and
foreign analogues of the enumerated federal crimes qualify as aggravated felonies. See Brief for Petitioner 21
(contesting only what properly counts as such an analogue). The whole point of §1101(a)(43)’s penultimate
sentence is to make clear that a listed offense should lead
to swift removal, no matter whether it violates federal,
state, or foreign law.
Luna’s jot-for-jot view of “described in” would substantially undercut that function by excluding from the Act’s
coverage all state and foreign versions of any enumerated
federal offense that (like §844(i)) contains an interstate
commerce element. Such an element appears in about
half of §1101(a)(43)’s listed statutes—defining, altogether,
27 serious crimes.6 Yet under Luna’s reading, only those
——————
6 See
8 U. S. C. §1101(a)(43)(D) (“an offense described in” 18 U. S. C.
§1956, which criminalizes laundering of monetary instruments); ibid.
(“an offense described in” 18 U. S. C. §1957, which criminalizes engaging in monetary transactions involving property derived from specified
unlawful activities); §1101(a)(43)(E)(i) (three “offense[s] described in”
18 U. S. C. §§842(h)–(i), 844(d), which criminalize activities involving
explosives); ibid. (“an offense described in” 18 U. S. C. §844(e), which
criminalizes threatening to cause death, injury, or property damage
Cite as: 578 U. S. ____ (2016)
9
Opinion of the Court
federal crimes, and not their state and foreign counterparts, would provide a basis for an alien’s removal—
because, as explained earlier, only Congress must ever
show a link to interstate commerce. See supra, at 4–5. No
state or foreign legislature needs to incorporate a commerce element to establish its jurisdiction, and so none
ever does. Accordingly, state and foreign crimes will never
precisely replicate a federal statute containing a commerce
element. And that means, contrary to §1101(a)(43)’s
penultimate sentence, that the term “aggravated felony”
would not apply to many of the Act’s listed offenses irre—————— using explosives); ibid. (“an offense described in” 18 U. S. C. §844(i),
which criminalizes using fire or explosives to cause property damage);
§1101(a)(43)(E)(ii) (six “offense[s] described in” 18 U. S. C. §§922(g)(1)–
(5), ( j), which criminalize possessing a firearm in various circumstances);
ibid. (two “offense[s] described in” 18 U. S. C. §§922(n), 924(b),
which criminalize transporting or receiving a firearm under certain
circumstances); §1101(a)(43)(E)(iii) (“an offense described in” 26
U. S. C. §5861( j), which criminalizes transporting an unregistered
firearm); §1101(a)(43)(H) (“an offense described in” 18 U. S. C. §875,
which criminalizes making a threat to kidnap or a ransom demand);
ibid. (“an offense described in” 18 U. S. C. §1202(b), which criminalizes
possessing, receiving, or transmitting proceeds of a kidnapping);
§1101(a)(43)(I) (“an offense described in” 18 U. S. C. §2251, which
criminalizes sexually exploiting a child); ibid. (“an offense described in”
18 U. S. C. §2251A, which criminalizes selling a child for purposes of
child pornography); ibid. (“an offense described in 18 U. S. C. §2252,
which criminalizes various activities relating to child pornography);
§1101(a)(43)(J) (“an offense described in” 18 U. S. C. §1962, which
criminalizes activities relating to racketeering); ibid. (“an offense
described in” 18 U. S. C. §1084, which criminalizes transmitting information to facilitate gambling); §1101(a)(43)(K)(ii) (“an offense described
in” 18 U. S. C. §2421, which criminalizes transporting a person for
purposes of prostitution); ibid. (“an offense described in” 18 U. S. C.
§2422, which criminalizes coercing or enticing a person to travel for
purposes of prostitution); ibid. (“an offense described in” 18 U. S. C.
§2423, which criminalizes transporting a child for purposes of prostitution); §1101(a)(43)(K)(iii) (“an offense described in” 18 U. S. C.
§1591(a)(1), which criminalizes sex trafficking of children, or of adults
by force, fraud, or coercion).
10
LUNA TORRES v. LYNCH
Opinion of the Court
spective of whether they are “in violation of Federal[,]
State[, or foreign] law”; instead, that term would apply
exclusively to the federal variants.7
Indeed, Luna’s view would limit the penultimate sentence’s effect in a peculiarly perverse fashion—excluding
state and foreign convictions for many of the gravest
crimes listed in §1101(a)(43), while reaching those convictions for less harmful offenses. Consider some of the state
and foreign crimes that would not count as aggravated
felonies on Luna’s reading because the corresponding
federal law has a commerce element: most child pornography offenses, including selling a child for the purpose
of manufacturing such material, see §1101(a)(43)(I); demanding or receiving a ransom for kidnapping, see
§1101(a)(43)(H); and possessing a firearm after a felony
conviction, see §1101(a)(43)(E)(ii). Conversely, the term
“aggravated felony” in Luna’s world would include state
and foreign convictions for such comparatively minor
offenses as operating an unlawful gambling business, see
§1101(a)(43)(J), and possessing a firearm not identified by
a serial number, see §1101(a)(43)(E)(iii), because Congress
chose, for whatever reason, not to use a commerce element
when barring that conduct. And similarly, the term would
cover any state or foreign conviction for such nonviolent
activity as receiving stolen property, see §1101(a)(43)(G),
or forging documents, see §1101(a)(43)(R), because the
INA happens to use generic labels to describe those
crimes. This Court has previously refused to construe
——————
7 The
dissent replies: What’s the big deal? See post, at 10. After all,
it reasons, some listed federal statutes—specifically, those prohibiting
treason, levying war against the United States, and disclosing national
defense information—will lack state or foreign analogues even under
our construction. See ibid. But Congress’s inclusion of a few federal
offenses that, by their nature, have no state or foreign analogues hardly
excuses expelling from the Act’s coverage the countless state and
foreign versions of 27 other serious crimes.
Cite as: 578 U. S. ____ (2016)
11
Opinion of the Court
§1101(a)(43) so as to produce such “haphazard”—indeed,
upside-down—coverage. Nijhawan v. Holder, 557 U. S.
29, 40 (2009). We see no reason to follow a different path
here: Congress would not have placed an alien convicted
by a State of running an illegal casino at greater risk of
removal than one found guilty under the same State’s law
of selling a child.8
In an attempt to make some sense of his reading, Luna
posits that Congress might have believed that crimes
having an interstate connection are generally more serious
than those lacking one—for example, that interstate child
pornography is “worse” than the intrastate variety. Brief
for Petitioner 35. But to begin with, that theory cannot
explain the set of crazy-quilt results just described: Not
even Luna maintains that Congress thought local acts of
selling a child, receiving explosives, or demanding a ran——————
8 Luna’s position, in addition to producing this bizarre patchwork of
coverage, conflicts with our ordinary assumption that Congress, when
drafting a statute, gives each provision independent meaning. See
United States v. Butler, 297 U. S. 1, 65 (1936) (“These words cannot be
meaningless, else they would not have been used”). Until its most
recent amendment, §1101(a)(43)(J ) provided that the term “aggravated
felony” included any “offense described in [18 U. S. C. §1962] (relating
to racketeer influenced corrupt organizations) for which a sentence of 5
years’ imprisonment or more may be imposed.”
8 U. S. C.
§1101(a)(43)(J ) (1994 ed., Supp. I). (That provision now incorporates
two more federal crimes, and uses one year of prison as the threshold.)
The federal racketeering statute cited has an interstate commerce
element; analogous state and foreign laws (per usual) do not, and
therefore would fall outside §1101(a)(43)(J ) on Luna’s reading. But if
Congress had meant to so exclude those state and foreign counterparts,
then §1101(a)(43)(J )’s final clause—“for which a sentence of 5 years’
imprisonment may be imposed”—would have been superfluous, because
federal racketeering is always punishable by more than five years’
imprisonment, see 18 U. S. C. §1963(a). That language’s presence
shows that Congress thought §1101(a)(43)(J ) would sweep in some state
and foreign laws: The final clause served to filter out such statutes
when—but only when—they applied to less serious conduct than the
federal racketeering offense.
12
LUNA TORRES v. LYNCH
Opinion of the Court
som are categorically less serious than, say, operating an
unlawful casino or receiving stolen property (whether or
not in interstate commerce). And it is scarcely more plausible to view an interstate commerce element in any given
offense as separating serious from non-serious conduct:
Why, for example, would Congress see an alien who carried out a kidnapping for ransom wholly within a State as
materially less dangerous than one who crossed state lines
in committing that crime? The essential harm of the
crime is the same irrespective of state borders. Luna’s
argument thus misconceives the function of interstate
commerce elements: Rather than distinguishing greater
from lesser evils, they serve (as earlier explained) to connect a given substantive offense to one of Congress’s enumerated powers. See supra, at 4–5. And still more fundamentally, Luna’s account runs counter to the
penultimate sentence’s central message: that the national,
local, or foreign character of a crime has no bearing on
whether it is grave enough to warrant an alien’s automatic
removal.9
——————
9 The
dissent attempts a variant of Luna’s “not so serious” argument,
but to no better effect. Claims the dissent: Even if Congress could not
have viewed “interstate crimes [as] worse than wholly intrastate
crimes,” it might have thought that, say, “arsons prosecuted as federal
crimes are more uniformly serious than arsons prosecuted as state
crimes.” Post, at 14 (emphasis added). But we see no call to suppose
that Congress regarded state prosecutions as Grapefruit League
versions of the Big Show. Cf. Mistretta v. United States, 488 U. S. 361,
427 (1989) (Scalia, J., dissenting). In our federal system, “States
possess primary authority for defining and enforcing” criminal laws,
including those prohibiting the gravest crimes. Brecht v. Abrahamson,
507 U. S. 619, 635 (1993). For that reason, even when U. S. Attorneys
have jurisdiction, they are generally to defer to, rather than supplant,
state prosecutions of serious offenses. See U. S. Attorneys’ Manual:
Principles of Federal Prosecution §9–27.240 (1997). And still more
obviously, the dissent’s theory fails with respect to foreign convictions.
That a foreign sovereign prosecutes a given crime reflects nothing
about its gravity, but only about its location.
Cite as: 578 U. S. ____ (2016)
13
Opinion of the Court
Luna (and the dissent, see post, at 6) must therefore fall
back on a different defense: that his approach would exclude from the universe of aggravated felonies fewer serious state and foreign offenses than one might think. To
make that argument, Luna relies primarily on a part of
the Act specifying that the term “aggravated felony” shall
include “a crime of violence (as defined in [18 U. S. C. §16])
for which the term of imprisonment [is] at least one year.”
§1101(a)(43)(F); see 18 U. S. C. §16 (defining “crime of
violence” as involving the use of “physical force” against
the person or property of another). According to Luna,
many state and foreign offenses failing to match the Act’s
listed federal statutes (for want of an interstate commerce
element) would count as crimes of violence and, by that
alternative route, trigger automatic removal. A different
statutory phrase, or so Luna says, would thus plug the
holes opened by his construction of the “described in”
provisions.
Luna’s argument does not reassure us. We agree that
state counterparts of some enumerated federal offenses
would qualify as aggravated felonies through the “crime of
violence” provision. But not nearly all such offenses, and
not even the worst ones. Consider again some of the listed
offenses described earlier. See supra, at 10. The “crime of
violence” provision would not pick up demanding a ransom
for kidnapping. See 18 U. S. C. §875(a) (defining the crime
without any reference to physical force). It would not
cover most of the listed child pornography offenses, involving the distribution, receipt, and possession of such materials. It would not reach felon-in-possession laws and
other firearms offenses. And indeed, it would not reach
arson in the many States defining that crime to include
the destruction of one’s own property. See Jordison v.
Gonzales, 501 F. 3d 1134, 1135 (CA9 2007) (holding that a
violation of California’s arson statute does not count as a
crime of violence for that reason); Tr. of Oral Arg. 28–29
14
LUNA TORRES v. LYNCH
Opinion of the Court
(Solicitor General agreeing with that interpretation).10 So
under Luna’s reading, state and foreign counterparts to a
broad swath of listed statutes would remain outside
§1101(a)(43)’s coverage merely because they lack an explicit interstate commerce connection. And for all the
reasons discussed above, that result would significantly
restrict the penultimate sentence’s force and effect, and in
an utterly random manner.11
B
Just as important, a settled practice of distinguishing
between substantive and jurisdictional elements of federal
criminal laws supports reading §1101(a)(43) to include
state analogues lacking an interstate commerce require——————
10 In all those States, arsons of every description (whether of one’s
own or another’s property) would fall outside the “crime of violence”
provision. See Tr. of Oral Arg. 29, 46 (Solicitor General noting that the
categorical approach to comparing federal and state crimes produces
that effect). And contrary to the dissent’s suggestion, post, at 6, n. 2,
that would be true of the most dangerous arsons, as well as of less
serious ones. The dissent similarly fails to take into account the
categorical approach’s rigorous requirements when discussing a couple
of the non-arson offenses discussed above. (Still others, the dissent
wholly ignores.) It speculates that if the exact right state charge is
filed, some of that conduct “may” qualify, through the crime-of-violence
provision or some other route, as an aggravated felony. Ibid. “May” is
very much the operative word there, because—depending on the elements of the state offense chosen—that conduct also “may not.” And
the dissent never explains why Congress would have left the deportation of dangerous felons to such prosecutorial happenstance.
11 The dissent well-nigh embraces those consequences, arguing that a
narrow reading of “aggravated felony” would make more convicted
criminals removable under other statutory provisions, all of which allow
for relief at the Attorney General’s discretion. See post, at 8, 15 (lamenting that aliens convicted of aggravated felonies may not “even
appeal[ ] to the mercy of the Attorney General”). But Congress made a
judgment that aliens convicted of certain serious offenses (irrespective
of whether those convictions were based on federal, state, or foreign
law) should be not only removable but also ineligible for discretionary
relief. It is not our place to second-guess that decision.
Cite as: 578 U. S. ____ (2016)
15
Opinion of the Court
ment. As already explained, the substantive elements of a
federal statute describe the evil Congress seeks to prevent;
the jurisdictional element connects the law to one of Congress’s enumerated powers, thus establishing legislative
authority. See supra, at 4–5; ALI, Model Penal Code
§1.13(10) (1962). Both kinds of elements must be proved
to a jury beyond a reasonable doubt; and because that is
so, both may play a real role in a criminal case. But still,
they are not created equal for every purpose. To the
contrary, courts have often recognized—including when
comparing federal and state offenses—that Congress
uses substantive and jurisdictional elements for different
reasons and does not expect them to receive identical
treatment.
Consider the law respecting mens rea. In general,
courts interpret criminal statutes to require that a defendant possess a mens rea, or guilty mind, as to every
element of an offense. See Elonis v. United States, 575
U. S. ___, ___ (2015) (slip op., at 10). That is so even when
the “statute by its terms does not contain” any demand of
that kind. United States v. X-Citement Video, Inc., 513
U. S. 64, 70 (1994). In such cases, courts read the statute
against a “background rule” that the defendant must know
each fact making his conduct illegal. Staples v. United
States, 511 U. S. 600, 619 (1994). Or otherwise said, they
infer, absent an express indication to the contrary, that
Congress intended such a mental-state requirement.
Except when it comes to jurisdictional elements. There,
this Court has stated, “the existence of the fact that confers federal jurisdiction need not be one in the mind of the
actor at the time he perpetrates the act made criminal by
the federal statute.” United States v. Feola, 420 U. S. 671,
677, n. 9 (1975); see United States v. Yermian, 468 U. S.
63, 68 (1984) (“Jurisdictional language need not contain
the same culpability requirement as other elements of the
offense”); Model Penal Code §2.02. So when Congress has
16
LUNA TORRES v. LYNCH
Opinion of the Court
said nothing about the mental state pertaining to a jurisdictional element, the default rule flips: Courts assume
that Congress wanted such an element to stand outside
the otherwise applicable mens rea requirement. In line
with that practice, courts have routinely held that a criminal defendant need not know of a federal crime’s interstate commerce connection to be found guilty. See, e.g.,
United States v. Jinian, 725 F. 3d 954, 964–966 (CA9
2013); United States v. Lindemann, 85 F. 3d 1232, 1241
(CA7 1996); United States v. Blackmon, 839 F. 2d 900, 907
(CA2 1988). Those courts have recognized, as we do here,
that Congress viewed the commerce element as distinct
from, and subject to a different rule than, the elements
describing the substantive offense.
Still more strikingly, courts have distinguished between
the two kinds of elements in contexts, similar to this one,
in which the judicial task is to compare federal and state
offenses. The Assimilative Crimes Act (ACA), 18 U. S. C.
§13(a), subjects federal enclaves, like military bases, to
state criminal laws except when they punish the same
conduct as a federal statute. The ACA thus requires
courts to decide when a federal and a state law are sufficiently alike that only the federal one will apply. And we
have held that, in making that assessment, courts should
ignore jurisdictional elements: When the “differences
among elements” of the state and federal crimes “reflect
jurisdictional, or other technical, considerations” alone,
then the state law will have no effect in the area. Lewis v.
United States, 523 U. S. 155, 165 (1998); see also id., at
182 (KENNEDY, J., dissenting) (agreeing that courts should
“look beyond . . . jurisdictional elements,” and focus only
on substantive ones, in determining whether “the elements of the two crimes are the same”). In such a case, we
reasoned—just as we do now—that Congress meant for
the federal jurisdictional element to be set aside.
And lower courts have uniformly adopted the same
Cite as: 578 U. S. ____ (2016)
17
Opinion of the Court
approach when comparing federal and state crimes in
order to apply the federal three-strikes statute. That law
imposes mandatory life imprisonment on a person convicted
on three separate occasions of a “serious violent felony.”
18 U. S. C. §3559(c)(1). Sounding very much like the INA,
the three-strikes statute defines such a felony to include “a
Federal or State offense, by whatever designation and
wherever committed, consisting of ” specified crimes (e.g.,
murder, manslaughter, robbery) “as described in” listed
federal criminal statutes. §3559(c)(2)(F). In deciding
whether a state crime of conviction thus corresponds to an
enumerated federal statute, every court to have faced the
issue has ignored the statute’s jurisdictional element. See,
e.g., United States v. Rosario-Delgado, 198 F. 3d 1354,
1357 (CA11 1999) (per curiam); United States v. Wicks,
132 F. 3d 383, 386–387 (CA7 1997). Judge Wood, writing
for the Seventh Circuit, highlighted the phrase “a Federal
or State offense, by whatever designation and wherever committed”—the three-strikes law’s version of
§1101(a)(43)’s penultimate sentence. “It is hard to see
why Congress would have used this language,” she reasoned, “if it had meant that every detail of the federal
offense, including its jurisdictional element[ ], had to be
replicated in the state offense.” Id., at 386–387. Just so,
too, in the INA—whose “aggravated felony” provisions
operate against, and rely on, an established legal backdrop
distinguishing between jurisdictional and substantive
elements.12
——————
12 The
dissent declares our discussion of the three-strikes law, the
Assimilative Crime Act (ACA), and mens rea “unhelpful” on the ground
that all three contexts are somehow “differ[ent].” Post, at 10–13. But
what makes them relevantly so the dissent fails to explain. First, the
dissent errs in suggesting that the uniform judicial interpretation of the
three-strikes law ignores only “place-based jurisdiction elements”
(because, so says the dissent, of the phrase “wherever committed”).
Post, at 13. As Judge Wood’s analysis indicates, that is a theory of the
18
LUNA TORRES v. LYNCH
Opinion of the Court
Luna objects to drawing that line on the ground that it
is too hard to tell the difference between the two. See
Brief for Petitioner 26–28 (discussing, in particular, statutes criminalizing the destruction of federal property and
sending threats via the Postal Service). But that contention collides with the judicial experience just described.
Courts regularly separate substantive from jurisdictional
elements in applying federal criminal statutes’ mens rea
requirements; so too in implementing other laws that
require a comparison of federal and state offenses. And
from all we can see, courts perform that task with no real
trouble: Luna has not pointed to any divisions between or
within Circuits arising from the practice. We do not deny
that some tough questions may lurk on the margins—
where an element that makes evident Congress’s regulatory
power also might play a role in defining the behavior
Congress thought harmful. But a standard interstate
——————
dissent’s own creation; the actual appellate decisions apply to all
jurisdictional elements, not just territorial ones. Next, the dissent goes
wrong in claiming that the ACA is not pertinent because this Court
adopted a different method for matching substantive elements under
that law than under the INA. See post, at 12. For even as the Court
made that choice, it unanimously agreed that, however substantive
elements should be compared, jurisdictional elements should be disregarded. See Lewis v. United States, 523 U. S. 155, 165 (1998); id., at
182 (KENNEDY, J., dissenting). And finally, the dissent does nothi