It is already clear that the Hurst decision, striking down Florida’s death penalty law, has stirred up a debate over whether it marked a major new direction on capital punishment for the Court, focusing on the Sixth rather than the Eighth Amendment.
Just last week, the Delaware Supreme Court gave a sweeping interpretation to the Hurst ruling, with the majority there concluding that the Florida ruling not only had decreed that only a jury can impose a death sentence but also that the jury in doing so must be unanimous and must be agreed “beyond a reasonable doubt” that death was the proper punishment.
Some members of the Delaware court, in dissent, had argued that Hurst did not go nearly that far, and was limited to reinforcing the jury’s role in deciding that a given convicted individual should be considered for a death sentence, not that the jury had to make the final choice on such a sentence.
Monday’s action at the Supreme Court involved an attempt by lawyers for Louisiana death-row inmate Lamondre Tucker to persuade the Justices that the Hurst decision should be read as requiring a “reasonable doubt” standard as the required test for a jury verdict before the sentence in a murder case could be death.
Louisiana law gives the jury the final choice, but it does not require that the decision to impose a death penalty be indicated “beyond a reasonable doubt.” When Tucker was on trial in 2011 for the murder of his girlfriend and the unborn fetus she was carrying — a double murder under the first-degree charge against him — the judge refused to tell the jury that it had to be convinced “beyond a reasonable doubt” that the sentence should be death. The jury then came in with a death verdict.
When Tucker’s appeal to the Supreme Court was turned down by the Justices at the end of May, his lawyers had raised both the “reasonable doubt” question under the Sixth and Eighth Amendments, and the broader question of whether the death penalty is always unconstitutional under the Eighth Amendment. Justice Stephen G. Breyer filed a dissent (joined by Justice Ruth Bader Ginsburg) arguing that the Court should have heard and ruled on the broader question — a position that Breyer has been taking for a year.
The rehearing petition by Tucker sought to raise anew the broad question of the constitutionality of all death sentences, but also the Hurst-related question of whether the verdict of death had to be made by a jury, and only when it was justified “beyond a reasonable doubt.”
It is unknown whether the Court, in denying Tucker’s original petition in May, had considered the impact on the Sixth Amendment issue raised in that case of the Hurst decision, released three months earlier. But it is clear, in the wake of Monday’s order denying rehearing, that Tucker has failed in two attempts to head off the death penalty.
Moreover, the denial of rehearing has added to the uncertainty about just what the Court meant by its Hurst ruling. It will take agreement to hear a future case before that is clarified.
Along with denial of the Tucker position, the Court on Monday similarly refused to take a new look at 39 other cases. No explanation was given for any of the denials. The Court stacks up rehearing requests for action during its summer recess.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this post first appeared.
