Supreme Court Ruling Weakens Protections for Indigent Defendants Sentenced to Death


In a 6-3 decision on May 30, the Supreme Court deviated from its own precedent and practice to uphold an Arizona man’s death sentence despite a federal appellate court ruling that his trial lawyer was ineffective in violation of the Sixth Amendment.

Danny Jones was accused of killing three people during an attempted theft in 1992. Arizona prosecutors sought the death penalty. Mr. Jones, who said his drug use led to the offense, could not afford to hire an attorney. A public defender who had been an attorney for only about three years and had never been a lead attorney on a capital case was assigned to represent him.

A long line of precedent flowing from the Court’s 1986 decision in Strickland v. Washington establishes that defense attorneys have a constitutional duty to investigate and present evidence of mitigating circumstances to the sentencer in a capital case.

But Mr. Jones’s lawyer did not investigate potential mitigation evidence until after the jury had already convicted him of capital murder. He never hired a mental health expert and failed to request neurological or neuropsychological testing until the day of the sentencing hearing, even though he knew that Mr. Jones was “oxygen-deprived at birth and had a lithium deficiency—a condition linked to serious psychiatric disorders” and that “he was medicated for mood disorders, had attempted suicide and had been admitted to a mental hospital,” Courthouse News reports.

Mr. Jones was sentenced to death. On appeal, he argued that he had been denied his Sixth Amendment right to effective assistance of counsel The U.S. Court of Appeals for the Ninth Circuit agreed and reversed his death sentence, finding that the public defender’s performance was deficient and there was a reasonable probability that Mr. Jones would not have been sentenced to death if his lawyer had presented available evidence about his mental health.

“Had counsel procured a mental health expert,” the court found, “the mitigation case would have told the story of an individual whose entire childhood was marred by extreme physical and emotional abuse, which in turn funneled him into early onset substance abuse that exacerbated existing cognitive dysfunction.”

The State asked the Supreme Court to reverse. During the Court’s sole oral argument in a death-penalty case this term, Justice Neil Gorsuch suggested it should expedite resolution (Mr. Jones’s execution) by evaluating the aggravating and mitigating factors itself rather than remand for the lower court to consider the full record in the first instance.

As legal scholar Austin Sarat noted, the Court did exactly that. It departed from what Justice Sonia Sotomayor called its “usual practice” and “engage[d] in the reweighing” of evidence itself, even though the factual record in this case “is complex, contested, and thousands of pages long.” In a dissent joined by Justice Elena Kagan, Justice Sotomayor continued: 

In light of this “extensive record” and “intricate procedural history, . . . this is not an appropriate case to reach and settle [a] fact-sensitive issue.” [Citation omitted.] That is particularly true when, as here, the majority in the first instance parses a complex record containing contested medical diagnoses and disputed allegations of abuse and trauma. 

Writing for the Court, Justice Samuel Alito held that the federal appeals court “failed adequately to take into account the weighty aggravating circumstances in this case,” reweighed the extensive record, and, in just 16 total pages, summarily concluded that the mitigating evidence “is insufficient to show prejudice” because most of it “was not new, and what was new would not carry much weight in Arizona courts.”

By casting its precedent as finding ineffective assistance only where “defense counsel introduced little, if any, mitigating evidence at the original sentencing,” the Thornell Court weakened constitutional protections for indigent defendants facing the death penalty. As Professor Sarat put it, the decision suggests that “defense lawyers in capital cases should be deemed ineffective only if they do nothing, or next to nothing, to try to save their client’s life in the sentencing phase of a capital case.”

The decision also undermines federal habeas review. Unlike the Ninth Circuit, which as Justice Ketanji Brown Jackson explained in a separate dissent, “reasoned extensively—by analogy—considering precedent where both the Circuit and this Court had granted habeas relief even in the presence of similar aggravators,” the Court did not analyze its own precedent in assessing prejudice. It instead deferred to the state court, effectively concluding there could be no prejudice unless “the Arizona Supreme Court has vacated the judgment of death in a case involving multiple murders.”