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Matt Evola*

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored—indeed, I have struggled—along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.1

 Justice Blackmun may have given up on developing a constitutional procedure to remedy the flaws in our capital punishment system, but many of the Justices who remain on the Court have declined to follow suit.2 Capital punishment remains a feature of the criminal justice system in a majority of states,3 and debate rages on about its efficacy and constitutionality. However, assuming that capital punishment will endure in many states for some time, it is imperative to ensure more than the mere appearance of fairness.

The Supreme Court may have cause to address one area of the capital punishment system in the coming months that could help ensure the penalty is “reserved for the worst of crimes and limited in its instances of application.”4 In Indiana, Kevin Charles Isom has been convicted and sentenced to three death sentences related to three murders committed in 2007.5 On appeal, Isom challenged the standard used to weigh aggravating and mitigating circumstances in determining the validity of a death sentence.6 Most states which retain the death penalty require a balance of circumstances before such a penalty is given.7 However, the standard for that balancing is not uniform across the country and is unclear in some states.8

Isom lost his appeal at the Supreme Court of Indiana.9 However, a cert petition for Isom v. Indiana is now pending before the Supreme Court of the United States, and a conference will be held in February to determine whether the Court will hear the case.10 The Court should grant certiorari to settle a circuit split, to provide clarity on the issue, and to ensure that capital punishment is appropriately restricted.

Maybe the most common factor that leads the Court to hear a case is usually rather straightforward: is there a circuit split? In some cases, however, the existence of a circuit split is not easy to determine. In this case, Isom points to varying laws and court cases that demonstrate how different states approach the weighing of aggravating and mitigating circumstances.11 Indiana, however, contends that states merely have different procedures for making capital sentencing determinations, but that these differences do not represent a division over the application of the relevant case law.12 While Indiana is, of course, correct that states are not required to use identical procedures for implementing capital punishment, if a state employs a procedure that runs afoul of the Sixth or Eighth Amendments, that would obviously be unconstitutional.13

Accordingly, an earlier case, Ring v. Arizona,14 is likely to play a role in the Court’s decision on whether to hear Isom. In Ring, Justice Scalia wrote a concurrence stating, “the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives—whether the statute calls them elements of the offense, sentencing factors, or Mary Jane—must be found by the jury beyond a reasonable doubt.”15 Isom would call the question of whether aggravating circumstances outweigh mitigating circumstances an essential fact in Indiana’s capital punishment procedure; Indiana would disagree.

Ring involved only aggravating circumstances and merely asked whether the existence of aggravating circumstances needed to be proven beyond a reasonable doubt.16 Isom, in contrast, concedes the fact that at least one aggravating circumstance exists.17 Instead, he questions the weighing of that circumstance against other mitigating circumstances, for which no standard of proof has been set.18 Based on the facts of this particular case, it is possible that a change in the level of proof required to weigh circumstances would not have a practical effect for Isom.19 However, clarification on this issue could potentially have a great effect going forward.20

Furthermore, the Eighth Amendment has been held to limit capital punishment “to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution.”21 Isom argues that only half of this requirement is met in states like Indiana where there is no specified burden of proof for a jury to determine that aggravating circumstances have outweighed mitigating circumstances.22  Isom’s argument suggests that without such a standard of proof, it is not certain that only those defendants of extreme culpability will be sentenced to death.

This moral question leads into murky waters. It is not clear what exactly makes a person extremely culpable and therefore deserving of execution. It is also not clear which mitigating circumstances should be considered by a court and to what extent, as evidenced by the Supreme Court’s struggle to determine when a defendant’s upbringing should be considered to mitigate culpability.23 What is clear, however, is that such legal uncertainty both has potential constitutional ramifications and that different state processes may run afoul of the Eighth Amendment. As such, the issue is not merely one of federalism, with each state free to create their own procedure for administering punishment.24 The issue is constitutional, and that is likely problematic.

In light of these constitutional ramifications, the jury right provided by the Eighth Amendment is of crucial importance.25 According to Justices Stevens and Breyer, this right arises due not to the jury’s proficiency at determining facts but rather their role in expressing the conscience of the community.26 The jury right found in the Eighth Amendment “better effectuates the jury-right promise of the Sixth Amendment than does the Sixth Amendment itself.”27 While the Court has given this Eighth Amendment jury right some attention,28 clear reinforcement would better protect those defendants who do not qualify as extremely culpable. If we are going to continue tinkering with the machinery of death, the Eighth Amendment jury right should be considered a minimum requirement in any capital sentencing proceeding.

In sum, most states that employ the death penalty require three specific findings before such a sentence is implemented. First, a finding of any aggravating factors; second, a finding of any mitigating factors; and finally, a balancing of those aggravating and mitigating factors.29 That balance either counsels in favor of or against a death sentence. Such a sentence is often only lawful if the aggravating factors outweigh the mitigating factors.30 Scalia, in his concurrence in Ring, went on to say “[w]e cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it.”31 Yet, as many have pointed out, “it is not clear what, if anything, Ring demands of the states.”32 This legal fog must be addressed by the Court, and Isom v. Indiana presents the opportunity to do so.