In 1991, James McKinney and his half-brother killed two people while robbing the victims at their homes. McKinney was sentenced to death, but in 2015 the U.S. Court of Appeals for the 9th Circuit threw out his death sentences. In 2018, the Arizona Supreme Court resentenced McKinney, once again imposing the death penalty. Today a divided Supreme Court upheld those sentences, rejecting McKinney’s argument that he was entitled to be resentenced by a jury instead.
At McKinney’s original trial, he was convicted by a jury for the 1991 murders of Christine Mertens and Jim McClain, but he was sentenced to death by a judge. The Arizona Supreme Court upheld McKinney’s sentences, but in 2015 the 9th Circuit ruled that the sentencing judge and the Arizona Supreme Court should have considered evidence that McKinney suffers from post-traumatic stress disorder as a result of the horrific abuse that he experienced as a child. The 9th Circuit relied on the Supreme Court’s 1982 decision in Eddings v. Oklahoma, in which the justices ruled that a sentencer in a capital case cannot refuse to consider relevant mitigating evidence – that is, factors that might provide a reason for a sentence other than the death penalty.
When McKinney’s case returned to the state courts, the state supreme court rejected his argument that the Supreme Court’s recent cases require a jury, rather than a judge, to resentence him. And it upheld McKinney’s death sentences, concluding that the mitigating circumstances in his case were not “sufficiently substantial” to warrant a lesser sentence. McKinney then went to the Supreme Court, which agreed to hear his case last year.
By a vote of 5-4, the Supreme Court today upheld the Arizona Supreme Court’s decision. In a decision written by Justice Brett Kavanaugh, the court explained that McKinney’s argument that a jury, rather than a judge, should resentence him “does not square with” the Supreme Court’s 1990 decision in Clemons v. Mississippi, in which the justices ruled that the Mississippi Supreme Court could reweigh the aggravating factors – that is, factors making the death penalty appropriate, such as the heinousness of the crime – against the mitigating factors after the state court determined that one of the aggravating factors was too vague. It doesn’t matter, the court reasoned, that Clemons involved aggravating factors, while McKinney’s case involves mitigating factors: The “Court’s analysis in Clemons hinged on its assessment of appellate courts’ ability to weigh aggravating and mitigating evidence, not on any unique effect of aggravators as distinct from mitigators.” And the Supreme Court’s later decisions in Ring v. Arizona and Hurst v. Florida, holding that a jury must find the aggravating circumstance that makes a defendant eligible for the death penalty, “did not overrule Clemons so as to prohibit appellate reweighing of aggravating and mitigating circumstances.”
The court also dismissed McKinney’s contention that, following Ring and Hurst, a jury – rather than a judge – was required to find the aggravating circumstances that made him eligible for the death penalty back at his original trial in 1993. McKinney’s conviction, the court emphasized, became final on direct review in 1996, long before the court’s decisions in Ring and Hurst, which do not apply retroactively. And despite McKinney’s suggestion to the contrary, the court continued, “the Arizona Supreme Court’s reweighing of the aggravating and mitigating circumstances occurred on collateral review, not direct review.”
Justice Ruth Bader Ginsburg filed a dissenting opinion – one of two today – that was joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. In Ginsburg’s view, the recent proceedings in the Arizona Supreme Court were direct, rather than collateral, review because they were “essentially a replay of the initial direct review proceeding”: The state had asked the court “to resume and redo direct review, this time in accord with Eddings.” As a result, Ginsburg argued, McKinney’s death sentences should be unconstitutional under the court’s decisions in Ring and Hurst.