DOUBLE JEOPARDY AND THE DEATH PENALTY:
A Supreme Court Case To Be Argued In November May Only Show The Court's Continuing Support For Execution

By ALEC WALEN

Tuesday, Oct. 29, 2002

On November 4th, the Court will hear oral argument in the death penalty case of Sattazahn v. Pennsylvania. David Sattazahn was convicted of murder, but the jury deadlocked on whether to sentence him to death. As a result, the trial judge sentenced him to life in prison without parole. He appealed his conviction, won, was retried, and convicted again. The second time around, the jury agreed on the death sentence. He argues that this death sentence violates the Fifth Amendment's Double Jeopardy Clause.

It is unlikely that the Court will reverse Sattazahn's death sentence. Indeed, I judge it so unlikely that I find it curious that the Court agreed to hear the case. I suggest the primary reason the Court took the case was not to address what is arguably an injustice, but rather to reaffirm the Court's own support for the death penalty.

Last year, for the first time since 1988, the Supreme Court placed substantial new restrictions on government's power to impose the death penalty. In Ring v. Arizona, it overturned a death sentence imposed by a judge, holding that defendants have a Sixth Amendment right to have a jury - not a judge - determine whether aggravating factors warrant the imposition of the death penalty. And in Atkins v. Virginia, it held that the execution of the mentally retarded is cruel and unusual punishment.

This year, however, it looks like the tide will turn back. Already in this young term, the Court has decided not to reexamine the execution of killers who were 16 or 17 at the time of their crimes - this despite the fact that a number of Justices have recently expressed serious reservations, if not outright opposition, to such executions. And I expect that the Court will also conservatively interpret its death penalty double jeopardy jurisprudence in Sattazahn.

The Facts of the Sattazahn Case: Two Trials, One Death Penalty

David Sattazahn was convicted of first degree murder for killing a restaurant manager whom he and an accomplice were trying to rob. At the sentencing phase of his trial, Pennsylvania introduced as an "aggravating factor" - that is, a factor supporting the imposition of the death penalty - the fact that he killed while perpetrating a felony. As "mitigating factors," suggesting the penalty should not be imposed, Sattazahn presented his lack of a significant history of prior convictions and his young age at the time of the crime.

After three and a half hours of deliberation, the jury deadlocked: nine were against execution, and three were in favor. The judge dismissed the jury and sentenced Sattazahn to life in prison without parole - as Pennsylvania law requires a judge to do whenever a death penalty jury is deadlocked.

Sattazahn appealed his first degree murder conviction. However, before the appeal was decided, Sattazahn pleaded guilty to five different counts of burglary, one count of robbery, and one count of third degree murder (which cannot be punished by execution).

Then Sattazahn won his appeal - on the basis of a faulty jury instruction. There was a retrial. Again, Sattazahn was convicted, and again the state sought the death penalty.

The Issue for the Court

This case presents two questions to the Court. One concerns the Double Jeopardy Clause. The other (which I will not discuss here, and on which the Court is quite certain to rule against the defendant) concerns the defendant's due process interest in the life sentence he received the first time.

The basic rule in double jeopardy cases is that a defendant who successfully appeals his conviction "wipes the slate clean." As a result, there is no double jeopardy bar to receiving an even harsher sentence upon retrial. Thus, the mere fact that Sattazahn received a worse punishment as the ultimate result of his appeal does not in itself mean his conviction must be vacated.

However, in Bullington v Missouri, the Court recognized an exception to the "clean slate" rule. The exception applies in death penalty cases in which the sentencing proceeding was like a trial on guilt or innocence. If one jury has agreed, with respect to death, "that the prosecution has not proved its case," then it would violate the Double Jeopardy Clause to require the defendant to run that gauntlet again.

The question in this case is this: did the initial jury that deadlocked (causing the judge to impose the mandatory statutory penalty of life without parole) in effect agree that the prosecution had not proved its case? Put another way, does the fact that Sattazahn was once sentenced to life in prison, even though on the basis of a deadlocked death penalty jury, suffice to protect him from having to face the prospect of execution for the same crime upon retrial?

Sattazahn's Argument that the Double Jeopardy Clause Precludes his Being Executed

Sattazahn argues, of course, that the answer to both these questions is "Yes." He claims that when the prosecution has failed to persuade the jury that death is the appropriate penalty, then it has failed to meet its burden of persuasion - and thus, it has not proved its case.

The obvious rejoinder is that a hung jury does not normally function as an acquittal. A mistrial is declared, and there is no determination of guilt or innocence. Indeed, there is no verdict at all. After juries hang, prosecutors routinely decide whether to re-try in front of a second jury, and the Double Jeopardy Clause does not stop them from doing so.

But Sattazahn contends that when a jury hangs at the sentencing phase, and a judge subsequently imposes a mandatory statutory sentence, it's different - for two reasons.

Second, he argues that a deadlock in a sentencing is not like a deadlock in the trial phase. A trial jury knows that if it deadlocks, the defendant will likely be re-tried. But a death penalty jury, he urges, knows - at least if properly instructed, as his was - that if it deadlocks, the defendant will receive life in prison, not death.

That puts holdout jurors in a different position. At a trial, holdout jurors have every incentive to try to convince the others to acquit. But at a death penalty sentencing, the holdouts' incentive is merely to hold out - knowing that holding out alone will defeat the death penalty. Thus jurors may, in effect, agree to disagree, knowing that this will produce a life sentence.

The State and Federal Government's (Friend of the Court) Argument That Sattazahn Can Be Executed Despite the Clause

Both of these arguments have appeal, but the arguments on the other side are stronger. For one thing, as the state points out, no case has ever before held that a hung jury acquits the defendant. Moreover, it is simply implausible that a hung jury makes any factual determination - much less the determination that the prosecution has failed to prove its case. By definition, a deadlocked jury is one that could not agree.

The federal government, as amicus curiae (friend of the court), also points out what would have occurred in the absence of a mandatory "life without parole statute": the state could have simply conducted new sentencing hearings, until it got a jury that agreed on some penalty, whether it was life in prison or death. Double jeopardy would not bar a second sentencing after a sentencing jury deadlocked any more than it would bar a second trial after a trial jury deadlocked.

A state may choose, as Pennsylvania and the Federal Government have done, to set up a default, so that a deadlock results in life in prison rather than the need to convene a new sentencing jury. But it makes little sense to treat such a default procedure as turning the first jury's deadlock into a finding that the prosecution did not prove its case.

What about Sattazahn's argument that when there is a default rule the jury may really have agreed to disagree, thereby in effect choosing to avoid sentencing the defendant to die? Surely some juries which now deadlock would make a finding that the prosecution has not proved its case for the death sentence, if they knew there were no "default to life" rule - for the holdouts would more strenuously argue for life without parole only.

The problem with this argument is that no one can know, when a jury deadlocks, whether or not it was "agreeing" to choose the default sentence of life without parole, or whether it would have agreed on that sentence if it had not been confronted with a default rule. Without explicit agreement on a sentence, there is no ground for taking the jury to have made a finding with regard to what the prosecution proved or did not prove. Therefore, letting a second sentencing jury sentence Sattazahn to die does not violate the Double Jeopardy Clause.

The Import of the Ultimate Decision in Sattazahn

I nonetheless find this case to be significant since it may be a weather vane regarding the Court's death penalty leanings. It may, as I suggested above, have been one the Court agreed to hear primarily to show that it still fundamentally supports the death penalty's constitutionality. Or, conversely, if my prediction is wrong and the Court rules in favor of Sattazahn, it would show that the Court really is moving in the direction of holding that "death is different," and that the conditions under which it can be applied will be, like an endangered species, ever harder to find.


Alec Walen teaches philosophy of law at the University of Baltimore. He is currently working on a book on Intention and Permissibility. His email address is awalen@ubmail.ubalt.edu

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