Michigan death penalty policy can be mitigating factor under FDPA

In sentencing a convicted rapist/kidnapper/murderer, a federal jury should have been allowed to consider Michigan’s ban on capital punishment as a mitigating factor, the 6th U.S. Circuit Court of Appeals ruled.

In People v. Gabrion, the jury sentenced the defendant to death for his crimes. During the sentencing phase, the district court didn’t allow Michigan’s ban on the death penalty to be mentioned or admitted for the jury to consider as a mitigating factor in determining whether to sentence Gabrion to death or life in prison. Gabrion was tried in federal court because he committed the crime in the Manistee National Forest, a national park.

No other case had been decided on the issue of whether the state’s policy can be a mitigating factor under the Federal Death Penalty Act. In a decision written by Judge Gilbert Merritt Jr., the 6th Circuit said it can be.

Failing to consider the specific language of the statute allowing “any mitigating factor,” the court reasoned without further discussion that the Michigan policy did not fit within any of eight mitigating factors listed in the Federal Death Penalty.  This ruling is inconsistent with the language of the Act requiring the factfinder to  consider “any mitigating factor” and “any information relevant to a mitigating factor.”  18 U.S.C. § 3592(a); id. § 3593(c).

The statute includes a list of mitigating factors, but introduces the list by saying “any mitigating factors, including …”.

The question is whether the fact of the location of the body so close to a line that forbids the death penalty allows counsel to try to convince one or more jurors that imposing the death penalty in these circumstances would treat life or death in a random and arbitrary way based on chance.  The phrase “any mitigating factor” plainly includes information about Michigan’s policy against the death penalty and an argument based on the absence of proportionality in punishment when life or death is made to turn on chance and the lives of other equally guilty psychopaths are spared.  The case was not brought to serve a special national interest like treason or terrorism different from the normal state interest in punishing murder.  The jury should be given the opportunity to consider whether one or more of them would choose a life sentence rather than the death penalty when the same jury considering the same defendant’s proper punishment for the same crime but prosecuted in Michigan state court could not impose the death penalty.

The jury’s death sentence was vacated and the case was remanded back for retrial on sentencing.

Alice Batchelder dissented, arguing the majority’s decision goes too far in letting anything enter into the discussion as a mitigating factor.

The majority finds that the district court erred by “fail[ing] to consider the specific language of the statute allowing  ‘any mitigating factor,’” in the FDPA, §§ 3592(a) and 3593(c), and relies on United States v. Davis, 132 F. Supp. 2d 455 (E.D. La. 2001), for the proposition that the phrase “any mitigating factor” contains “no qualification or limitation,” and therefore the defendant is entitled to present or argue “any mitigating factor . . . period.”  Id. at 464. … The majority then defines mitigating factors as anything that “could conceivably make a juror question” the appropriateness of imposing the death penalty in a given case.  By this reading of “any” and “mitigating”, the majority concludes that “[t]he phrase ‘any mitigating factor’ plainly includes information about Michigan’s
policy against the death penalty.” …

The inflexibility of such an absolute proposition appears to render it limitless. After today, Michigan’s law against the death penalty is a mitigating factor.  But suppose Michigan had, not a law, but merely pending legislation to abolish the death penalty — must a court admit that as a mitigating factor?  What about a pending Supreme Court case or a campaign promise?  The Pope condemns the death penalty — is that a mitigating factor to be argued to the sentencing jury?  Read generously, this broad view of admissibility entitles a capital defendant’s counsel to present evidence or argument no matter how tenuous, tangential, or even speculative.  The only limit is counsel’s own creativity — or lack of creativity.  And if counsel may present such argument, no matter how ineffective or unappealing to jurors, will there come a day when we hold counsel ineffective for failing to do so.

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