Some sentencing action in the SCOTUS order list

As reported via this SCOTUSblog post, the “Supreme Court on Monday released added orders from its Friday Conference, but the list did not include any” new cert grants. But there were two items of note for sentencing fans:

Justice Sonia Sotomayor filed a lengthy dissent from the Court’s denial of review in a Kentucky murder case, Hodge v. Kentucky (11-10974).

In addition, the Court [denied cert] on a claim that a jury, not a judge, must find the facts that support transferring the case of a juvenile accused of murder from juvenile to adult court, leading to greater punishment.  The case is Villalon v. Indiana (11-1324).

Justice Sotomayor dissent from the denial of cert, available here, runs ten pages and starts this way:

Petitioner Benny Lee Hodge was convicted of murder. Then, after his trial counsel failed to present any mitigation evidence during the penalty phase of his trial, he wassentenced to death.  In fact, counsel had not even investigated any possible grounds for mitigation. If counsel hadmade any effort, he would have found that Hodge, as achild, suffered what the Kentucky Supreme Court calleda “most severe and unimaginable level of physical andmental abuse.” No. 2009–SC–000791–MR (Aug. 25, 2011),App. to Pet for Cert. 11.  The Commonwealth concededthat counsel’s performance was constitutionally deficientas a result.  Yet the courtbelow concluded that Hodgewould have been sentenced to death anyway because evenif this evidence had been presented, it would not have“explained” his actions, and thus the jury would have arrived at the same result. Ibid. This was error. Mitigation evidence need not, and rarely could, “explai[n]” aheinous crime; rather, mitigationevidence allows a jury tomake a reasoned moral decision whether the individualdefendant deserves to be executed, or to be shown mercyinstead.  The Kentucky Supreme Court’s error of law couldwell have led to an error in result.  I would grant thepetition for certiorari, summarily vacate, and remand toallow the Kentucky Supreme Court to reconsider its decision under the proper standard.