On February 25, 2020, in McKinney v. Arizona, the U.S. Supreme Court upheld James McKinney’s death sentence in a 5-4 decision. Mr. McKinney’s case had come to the Court following a complicated procedural history. The U.S. Court of Appeals for the Ninth Circuit had previously vacated his death sentence on habeas review, citing the Arizona courts’ history of systematically failing to consider non-statutory mitigating evidence, in violation of Eddings v. Oklahoma. On remand, the Arizona Supreme Court reweighed the aggravating and mitigating factors and affirmed Mr. McKinney’s death sentence itself, rather than returning the case to the trial court for a jury re-sentencing. The U.S. Supreme Court granted certiorari and heard oral argument on the interrelated issues of whether the lower court should have applied current law rather than the law in place when the sentence first became final and whether Eddings error can be corrected through appellate review, or whether it requires resentencing in the trial court. The Supreme Court sided with the State on both issues.
Mr. McKinney had contended that after the Ninth Circuit identified an Eddings error, a jury, rather than the Arizona Supreme Court, should have reweighed the aggravating and mitigating circumstances. Mr. McKinney reasoned that the Ninth Circuit’s remand for constitutional error correction amounted to a re-opening of his direct appeal, allowing him to receive the benefit of changes in the law that post-dated his trial. Therefore, according to Mr. McKinney, he was entitled to a sentence imposed by a jury rather than a judge pursuant to the U.S. Supreme Court’s 2002 decision in Ring v. Arizona. Justice Kavanaugh, writing for a majority including Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch, rejected this argument.
Justice Kavanaugh wrote that Mr. McKinney’s contention that a jury, rather than a court, should resentence him “does not square with” Clemons v. Mississippi, which held that a court could reweigh aggravating and mitigating circumstances. The Court determined that Eddings error can be addressed through appellate review, concluding that a Clemons reweighing is a permissible remedy for an Eddings error, and “when an Eddings error is found on collateral review, a state appellate court may conduct a Clemons reweighing on collateral review . . . as appropriate and provided under state law.” While Mr. McKinney posited that Clemons is no longer good law in the wake of Ring and Hurst v. Florida, the Court rejected this argument. It explained that Ring and Hurst require juries to make eligibility decisions, turning on the presence of an aggravating factor, but do not require the jury to conduct the weighing of aggravators and mitigators that ultimately determine sentence. As such, the court held that Ring and Hurst do not overrule Clemons to prohibit appellate reweighing of aggravating and mitigating circumstances.
The Court further determined that the Arizona Supreme Court’s Clemons reweighing of aggravators and mitigators occurred on collateral review, not direct review. The majority categorized a Clemons reweighing not as a resentencing, but instead as akin to harmless-error review in that both may be conducted by an appellate court. In deciding that the Clemons reweighing did not constitute a reopening of direct review, the Court held that Ring and Hurst, which do not apply retroactively on collateral review, were not implicated in Mr. McKinney’s case. In reaching this conclusion, the Court accepted the Arizona Supreme Court’s explanation that the reweighing amounted to an independent review in a collateral proceeding. The Arizona Supreme Court previously cited its decision in State v. Styers, which held that Arizona could conduct such an independent review on a collateral proceeding. The majority stated, “We may not second-guess the Arizona Supreme Court’s characterization of state law . . . [a]s a matter of state law, the reweighing proceeding in McKinney’s case occurred on collateral review.”
Justice Ginsburg filed the dissenting opinion, joined by Justices Breyer, Sotomayor, and Kagan. Justice Ginsburg criticized the majority for accepting the state-law classification of Mr. McKinney’s resentencing proceedings, thereby failing to address in greater detail whether the case was on direct or collateral review and the potential implications of that categorization. Justice Ginsburg called the State’s argument “unavailing,” and posited that “whether the Constitution requires the application of law now in force is a question of federal constitutional law, not an issue subject to state governance.” In describing the appeals process in Arizona, the dissent wrote that “[b]eyond doubt, the Arizona Supreme Court engaged in direct review in 1996. A defendant’s first opportunity to appeal his conviction and sentence is the archetype of direct review. The Arizona Supreme Court’s 2018 proceeding was essentially a replay of the initial direct review proceeding.” The dissent emphasized that the resentencing proceedings included the same docket number assigned to its initial review, and docket entries showed that the original 1996 appeal was “reinstated.” In characterizing the proceedings as part of the direct appeal, the dissent would have held Mr. McKinney’s death sentence unconstitutional under Ring and reversed the judgment of the Arizona Supreme Court.