The Supreme Court, since reinstating the death penalty in 1976, has made it clear that defects in a key factor in many death sentencing cases can be cured by corrective decisions in appeals courts. But that rule may no longer be true "“ or at least, perhaps not true in many cases. Probably without intending explicitly to do so, the Court has sent an implied invitation to defense lawyers to raise the issue anew in future appeals. It did so in a significant footnote in its unsigned ruling on January 24 in the case of Bell v. Cone, a Tennessee capital case (docket 04-394).

In many states that retain the death penalty, one of the "aggravating factors" that can lead to capital punishment in a murder case is a finding that the crime was committed in "an especially heinous, atrocious, or cruel" way (or some variation on those specific words). For decades, defense lawyers have been attacking that factor "“ standing alone — as unconstitutionally vague, and the Supreme Court has agreed. But beginning with its ruling in Proffitt v. Florida, decided on July 2, 1976 (the same day that the Court reinstated the death penalty nationwide in Gregg v. Georgia), the Court has allowed state and federal appeals courts to interpret such phrases in a narrowing way, to remove the vagueness and thus the threat of an arbitrarily-imposed death sentence. The problem, it now appears, is that such after-the-trial narrowing by a reviewing court may run afoul of the Supreme Court's firm insistence these days that juries, not judges, make the critical calls on sentence-enhancing factors "“ the so-called Apprendi line of cases.


In the Proffitt case, at issue was a Florida law specifying that the phrase "especially heinous, atrocious or cruel" justified a death sentence. The state Supreme Court, however, had ruled that this phrase must be understood as applying only when there was a "conscienceless or pitiless crime which is unnecessarily torturous to the victim." The Supreme Court, in Proffitt, concluded: "We cannot say that the provision, as so construed, provides inadequate guidance to those charged with the duty of recommending or imposing sentence in capital cases." (The Court nailed down that principle more firmly in Godfrey v. Georgia in 1980 and Lambrix v. Singletary in 1997.)

The issue arose again this Term in Bell v. Cone. For the convicted individual in that case, Gary Bradford Cone, the decision was of no help to his challenge: the Court found that the Tennessee Supreme Court had sufficiently narrowed the vague phrase. But an unusual thing happened in that "per curiam" decision: in a footnote, apparently not prompted by either party, nor by the lower court decision at issue, the Court brought up its 2002 ruling in Ring v. Arizona. Ring, the Court noted, requires a jury, not a judge, "to find the aggravating circumstance that renders a defendant death-eligible."

The Ring decision, however, has been ruled not to apply to cases that have become final on direct review of the conviction and sentence; that was the situation with Cone's conviction. The Court commented: "Because Ring does not apply retroactively [citing Schriro v. Summerlin, 2004), this case does not present the question whether an appellate court may, consistently with Ring, cure the finding of a vague aggravating circumstance by applying a narrower construction."

Who might take advantage of that implied opening? It would appear to be available in capital cases that arose or were still pending on appeal after the date of the Ring decision (June 24, 2002), if at trial a vague instruction on the cruelty factor was given to the jury, suggesting a Ring violation that could not be cured.

There is no way to estimate how many cases might fit into that category, but the cruelty aggravating factor is a common issue in death penalty cases.

(Thanks to Doug Berman of the Sentencing Law and Policy blog for calling attention to footnote 6 in Bell v. Cone.)

Posted in Cone v. Bell, Uncategorized