COMMONWEALTH OF KENTUCKY v. TRAVIS M. BREDHOLD; COMMONWEALTH OF KENTUCKY v. EFRAIN DIAZ, JR. AND JUSTIN SMITH
2017-SC-000436-TG; 2017-SC-000536-TG; 2017-SC-000537-TG
Supreme Court of Kentucky
MARCH 26, 2020
RENDERED: MARCH 26, 2020; TO BE PUBLISHED
COMMONWEALTH OF KENTUCKY APPELLANT
V. ON TRANSFER FROM COURT OF APPEALS CASE NO. 2017-CA-001327-MR FAYETTE CIRCUIT COURT NO. 14-CR-00161 HONORABLE ERNESTO SCORSONE
TRAVIS M. BREDHOLD APPELLEE
AND
2017-SC-000536-TG AND 2017-SC-000537-TG
COMMONWEALTH OF KENTUCKY APPELLANT
V. ON TRANSFER FROM COURT OF APPEALS CASE NOS. 2017-CA-001541-MR AND 2017-CA-001542-MR FAYETTE CIRCUIT COURT NOS. 15-CR-00584-001-002 HONORABLE ERNESTO SCORSONE
OPINION OF THE COURT BY JUSTICE HUGHES
VACATING INTERLOCUTORY ORDERS AND REMANDING
These three consolidated cases present the issue of whether evolving standards of decency are such that the
Accordingly, we are compelled to vacate the interlocutory orders and remand to the trial court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
A Fayette County grand jury indicted Travis M. Bredhold and charged him with one count of murder, first-degree robbery, theft by unlawful taking over $10,000, trafficking in less than eight ounces of marijuana, possession of drug paraphernalia, and carrying a concealed deadly weapon. Bredhold allegedly robbed a Marathon gas station and fatally shot Mukeshbhai Patel, an employee, on December 17, 2013. Bredhold was eighteen (18) years and five (5) months old at the time of the offenses. 2017-SC-000436-TG.
Efrain Diaz, Jr., and Justin Smith, co-defendants, are charged with the robbery and fatal shooting of Jonathan Krueger on April 17, 2015.2 A Fayette County grand jury indicted and charged Diaz with one count of murder and two counts of first-degree robbery. Diaz was twenty (20) years and seven (7) months old at the time he allegedly committed the offenses. The same grand jury indicted and charged Smith with one count of murder, two counts of first-degree robbery, and one count each of tampering with physical evidence and first-degree fleeing or evading police. Smith was eighteen (18) years and five (5) months old at the time of the alleged offenses. 2017-SC-000536-TG, 2017-SC-000537-TG.
All three Appellees pled not guilty and in all three cases the Commonwealth gave notice of its intent to seek the death penalty. Each Appellee moved the trial court to exclude the death penalty as a sentencing option at trial, specifically asking the trial court to extend the holding of Roper, 543 U.S. 551. As noted, Roper holds that capital punishment is an unconstitutional penalty for juvenile offenders less than eighteen (18) years old at the time of the offense. Each Appellee requested the trial court to extend the death penalty prohibition to include persons under the age of twenty-one (21) at the time of the offense.
Bredhold and Smith supplemented their respective motions to remove the death penalty with an affidavit of Dr. Ken Benedict, a clinical psychologist and neuropsychologist. Dr. Benedict found Bredhold was about four years behind his peer group in multiple capacities, including the capacity to regulate his emotions and behavior, and that he suffered from a number of mental disorders. As for Smith, Dr. Benedict concluded his executive functions related to planning, anticipating the consequences of his actions, and impulse control are below those of an adult and he too exhibited a number of mental disorders.3
The trial court conducted an evidentiary hearing on Diaz‘s and Smith‘s motions, hearing Dr. Laurence Steinberg‘s testimony. Dr. Steinberg, a nationally recognized expert in adolescent development, explained current scientific knowledge regarding brain development and its impact on behavior, comparing the maturational differences between individuals less than twenty-one (21) years of age and those twenty-one (21) and older. Dr. Steinberg also supplemented his testimony with a written report. The Commonwealth did not submit any proof. Although the testimony was presented in the Diaz/Smith case, the trial court supplemented Bredhold‘s record with the Steinberg testimony.
The trial court later entered a separate but similar order in each case declaring Kentucky‘s death penalty statute unconstitutional under the
The Commonwealth filed interlocutory appeals and this Court granted the Commonwealth‘s motions to transfer the appeals from the Court of Appeals pursuant to
ANALYSIS
In these consolidated appeals we are asked to review the Fayette Circuit Court‘s decision finding Kentucky‘s death penalty statute unconstitutional as to defendants who were between the ages of eighteen (18) and twenty-one (21) at the time of their offense. Before reaching this significant inquiry, it is incumbent that we consider whether the issue is properly before us.
“Considerations of propriety, as well as long-established practice, demand that we refrain from passing upon the constitutionality of an act of [the legislature] unless obliged to do so in the proper performance of our judicial function....” Blair v. United States, 250 U.S. 273, 279 (1919); accord Louisville/Jefferson Co. Metro Gov‘t v. TDC Group, LLC, 283 S.W.3d 657, 660 (Ky. 2009) (recognizing this Court‘s “practice of avoiding constitutional questions” unless judicially necessary). See also Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346 (1936) (Brandeis, J., concurring) (listing rules used to avoid constitutional questions). As a threshold matter, Kentucky courts do not have constitutional jurisdiction to adjudicate a question raised by a litigant who does not have standing to have the issue decided. Commonwealth Cabinet for Health & Family Servs., Dep‘t for Medicaid Servs. v. Sexton by & through Appalachian Reg‘l Healthcare, Inc., 566 S.W.3d 185, 195 (Ky. 2018). Because the Appellees have yet to be adjudicated guilty and the Commonwealth‘s power to punish has yet to be invoked, we conclude the question whether Kentucky‘s death penalty is unconstitutional as to the age-based group identified by Appellees is currently not justiciable. For context, we discuss briefly the parties’ positions on the constitutional issue raised before turning to the mandatory considerations of standing and ripeness.
Under Kentucky law, a person convicted of a capital offense, may be sentenced to death pursuant to
A trio of United States Supreme Court decisions, Thompson v. Oklahoma, 487 U.S. 815 (1988), Stanford, 492 U.S. 361, and Roper, 543 U.S. 551, have
applied society‘s evolving standards of decency to address the question of whether the
Appellees contend that contemporary standards of decency are now such that the
Presently, by interlocutory appeal, the Commonwealth seeks to vacate the Fayette Circuit Court‘s orders that declare Kentucky‘s death penalty statute unconstitutional insofar as it permits capital punishment for a defendant under twenty-one (21) years of age at the time of his offense. Although the Commonwealth noticed its intent to seek the death penalty as to all three Appellees, at the point their motions were heard by the circuit court (and even now), the cases remained untried and no jury had recommended the death penalty. While death penalty trials are unquestionably more involved than typical felony trials, requiring both group and individual voir dire and presenting issues and procedures unique to the gravity of the penalty sought, the focus of
Constitutional challenges to statutes generally fall within one of two categories: a facial challenge or an as-applied challenge. In order to declare a statute unconstitutional on its face, a court must find that the law is unconstitutional in all its applications. Commonwealth of Kentucky v. Claycomb by & through Claycomb, 566 S.W.3d 202, 210 (Ky. 2018) (citations omitted); Sabri v. United States, 541 U.S. 600, 609 (2004). “It is a well-established principle that [a] facial challenge to a legislative Act is ... the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” Harris v. Commonwealth, 338 S.W.3d 222, 229 (Ky. 2011) (quoting Rust v. Sullivan, 500 U.S. 173, 183 (1991)). On the other hand, in order to declare a statute unconstitutional as applied, a court must find the law unconstitutional as applied to the challenger‘s particular circumstances. See United States v. Salerno, 481 U.S. 739, 745 n.3 (1987).
No matter the type of constitutional challenge brought, the person(s) bringing the challenge must first demonstrate standing in order for the challenge to be justiciable. Sexton, 566 S.W.3d at 196. Otherwise, the trial court does not have jurisdiction to hear and decide the constitutional challenge, whether raised by declaratory judgment action or, as in these cases, by motion. See id.; In re Summers, 325 U.S. 561, 566-67 (1945); Flast v. Cohen, 392 U.S. 83, 101 (1968).5 It follows that an appellate court does not have jurisdiction to review on its merits an interlocutory appeal arising from a circuit court judgment entered in such circumstances. Sexton, 566 S.W.3d at 196-97.
Kentucky‘s constitutional standing doctrine, adopted from Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), wherein several organizations sought declaratory judgment and an injunction, is outlined in Sexton.
[A]t bottom, for a party to sue in Kentucky, the initiating party must have the requisite constitutional standing to do so, defined by three requirements: (1) injury, (2) causation, and (3) redressability. In other words, “A plaintiff must allege personal injury fairly traceable to the defendant‘s allegedly unlawful conduct and likely to be redressed by the requested relief.”6 “[A] litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent....”7 “The injury must be ... ‘distinct and palpable,’ and not ‘abstract’ or ‘conjectural’ or ‘hypothetical.‘”8 “The injury must be ‘fairly’ traceable to the challenged action, and relief from the injury must be ‘likely’ to follow from a favorable decision.”9
Sexton dealt with initiation of a civil suit; nevertheless, the “standing” principles apply with equal force to this interlocutory motion raised in a criminal proceeding. “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Standing is one of the five major justiciability doctrines which assure that the courts do not
address non-existent issues or provide advisory opinions. Sexton, 566 S.W.3d at 192-97.10 In federal constitutional parlance a “case or controversy” is required,
A litigant must satisfy all prongs of the standing inquiry to invoke a court‘s jurisdiction in a constitutional challenge. In this case, we need only consider whether Appellees meet the first prong, the injury requirement: whether the litigant “has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged statute or official conduct.” O‘Shea v. Littleton, 414 U.S. 488, 494 (1974) (quoting Massachusetts v. Mellon, 262 U.S. 447, 488 (1923)). It is well-settled that “[a]llegations of possible future injury do not satisfy the requirements of [standing].” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990). “A threatened injury must be ‘certainly impending’ to constitute injury in fact.” Id. (quoting Babbitt v. United Farm Workers Nat‘l Union, 442 U.S. 289, 298 (1979)). These principles regarding the injury necessary to establish standing are incorporated in the United States Supreme Court‘s jurisprudence explaining the context within which an
appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. . . . [T]he State does not acquire the power to punish with which the
In the cases before this Court, if one or more of the Appellees is convicted of a capital offense, the sentencing options are numerous.
When a person is convicted of a capital offense, he shall have his punishment fixed at death, or at a term of imprisonment for life without benefit of probation or parole, or at a term of imprisonment for life without benefit of probation or parole until he has served a minimum of twenty-five (25) years of his sentence, or to a sentence of life, or to a term of not less than twenty (20) years nor more than fifty (50) years.
Thus, assuming conviction, the sentencing range for the Appellees would extend from a twenty (20) year-sentence to death. To reiterate, the Appellees have yet to be tried, convicted, or sentenced. “It is just not possible for [the Appellees] to prove in advance that the judicial system will lead to any particular result in [their] case.” Whitmore, 495 U.S. at 159-60. With the Appellees having not yet suffered a concrete and particularized injury by having the death sentence imposed, no actual or imminent injury exists.11 At this point, imposition of the death sentence can only be viewed as hypothetical.
Although we approach the justiciability of these cases under the standing doctrine, application of the related ripeness doctrine has likewise resulted in courts dismissing premature claims and vacating premature decisions in the context of an
intervention, explained that the effects of the proposed double bunking, such as overcrowding, deprivation of essential food, and lack of sanitation, were only speculative, involving “contingent future events that may not occur as anticipated, or indeed not occur at all.” Id. at 883 (citing Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581 (1985) (quoting 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3532 (1984))).
In Cheffer v. Reno, 55 F.3d 1517, 1524 (11th Cir. 1995), the Eleventh Circuit Court of Appeals upheld the trial court‘s dismissal of an
In Johnson v. Missouri, 142 F.3d 1087 (8th Cir. 1998), a case involving the constitutionality of a statute that imposed sanctions on inmates who file frivolous claims, the Eighth Circuit recognized likenesses in the standing and ripeness doctrines: “Although we realize that standing and ripeness are
technically different doctrines, they are closely related in that each focuses on whether the harm asserted has matured sufficiently to warrant judicial intervention. . . . Thus, whether this principle is labeled ‘standing’ or ‘ripeness‘, [the inmates‘] claim [is not justiciable].” Id. at 1090, n.4 (internal quotations, original alterations, and citations omitted). See also People v. Stark, 400 P.2d 923, 928 (Colo. 1965) (“With reference to the argument that the several offenses defined in the statute are punishable by ‘cruel and unusual punishments’ we hold that until some person has been convicted of a crime and a sentence has been imposed which is then asserted to be ‘cruel and unusual’ there is no justiciable question presented.“); Floyd v. Filson, 940 F.3d 1082 (9th Cir. 2019) (challenge to lethal injection protocol not ripe when state has no implementable protocol at the time of the challenge; injury speculative and may never occur); Club Madonna, Inc. v. City of Miami Beach, 924 F.3d 1370 (11th Cir. 2019) (challenge to ordinance penalty provision not ripe when no allegations that fine has been imposed or imposition immediately forthcoming).13
The Commonwealth has not raised the issue of standing directly,14 but Sexton is clear that “all Kentucky courts have the constitutional duty to ascertain the issue of constitutional standing, acting on their own motion, to ensure that only justiciable causes proceed in court, because the issue of constitutional standing is not waivable.” Sexton, 566 S.W.3d at 192. Thus, while the Appellees have raised a serious question as to whether the death penalty is a disproportionate punishment for offenders in the eighteen (18) to twenty-one (21) year-old range, it is not currently justiciable whether viewed as a lack of standing or a matter of ripeness.
Rather recently, in Guernsey, 501 S.W.3d 884, this Court addressed a challenge similar to that raised in this case and decided that prior to trial the circuit court could not adjudicate the defendants’ motion to preclude the Commonwealth from seeking the death penalty as a constitutionally disproportionate penalty. In Guernsey, as here, the Commonwealth sought review of a Fayette Circuit Court‘s pretrial order granting the defendants’
motion to exclude death as a sentencing option in the event of conviction. The case was noticed as a death penalty case because the murder was allegedly committed in the course of a first-degree robbery, which occurred in the context of drug-trafficking. The circuit court concluded that, based on its knowledge of the facts following a pretrial hearing, capital punishment would be constitutionally disproportionate in that particular case and perhaps also comparatively disproportionate pursuant to
This Court, in a unanimous decision, clarified that the
We concluded:
While Guernsey and Jones correctly note that the death penalty has fallen into disfavor in recent years, it remains a viable penalty in Kentucky authorized by our legislature in specific types of cases, including those in which the defendant is charged with committing murder in the course of the commission of first-degree robbery. The Fayette County Grand Jury indicted the Appellees for those very offenses, and the Commonwealth, as is its statutory right, subsequently noticed its intent to seek the death penalty. Although at the conclusion of trial, should the jury recommend the death penalty for either of the Appellees, the circuit court will have discretion to determine whether that sentence is constitutionally proportionate, there is no authority for exercising that discretion pretrial before all relevant evidence is actually heard. Accordingly, the Fayette Circuit Court‘s Order Excluding the Death Penalty is vacated . . . .
Even though Guernsey involved a disproportionality argument that focused on the particular facts of a case that had not yet been tried to verdict while the cases currently before this Court raise a purely legal issue, judicial determination of Appellees’ age-based challenge to the death penalty is still not appropriate prior to trial. Regardless of the merits of the circuit court‘s
Consistent with our conclusion regarding the current non-justiciability of the Appellees’ constitutional challenge, none of the cases they cite support this Court addressing pretrial whether Kentucky‘s death penalty is constitutionally inappropriate for an offender in the eighteen (18) to twenty-one (21) year old range.16 All cases cited involving
challenges, inclusive of United States Supreme Court, federal circuit and state cases, are appeals by individuals who had already been convicted and sentenced:17 Moore v. Texas, 137 S. Ct. 1039 (2017); Hall v. Florida, 572 U.S. 701 (2014); Miller v. Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48 (2010); Kennedy v. Louisiana, 554 U.S. 407 (2008); Roper v. Simmons, 543 U.S. 551 (2005); Atkins v. Virginia, 536 U.S. 304 (2002); Stanford v. Kentucky, 492 U.S. 361 (1989), abrogated by Roper v. Simmons, 543 U.S. 551 (2005); Penry v. Lynaugh, 492 U.S. 302 (1989), abrogated by Atkins v. Virginia, 536 U.S. 304 (2002); Johnson v. Texas, 509 U.S. 350 (1993); Thompson v. Oklahoma, 487 U.S. 815 (1988); Eddings v. Oklahoma, 455 U.S. 104 (1982); Coker v. Georgia, 433 U.S. 584 (1977); Woodson v. North Carolina, 428 U.S. 280 (1976); Gregg v. Georgia, 428 U.S. 153 (1976); United States v. Marshall, 736 F.3d 492 (6th Cir. 2013); Branch v. State, 236 So. 3d 981 (Fla. 2018); Otte v. State, 96 N.E.3d 1288 (Ohio 8th Dist. App. 2017); Powell v. Delaware, 153 A.3d 69 (Del. 2016); Thompson v. State, 153 So. 3d 84 (Ala. Crim. App. 2012); Romero v. State, 105 So. 3d 550 (Fla. 1st Dist. App. 2012); Mitchell v. State, 235 P.3d 640 (Okla. Crim. App. 2010); Morton v. State, 995 So. 2d 233 (Fla. 2008);
Hill v. State, 921 So. 2d 579 (Fla. 2006); Bowling v. Commonwealth, 224 S.W.3d 577 (Ky. 2006).18
Undoubtedly, the death penalty‘s unique “severity and irrevocability,” Gregg v. Georgia, 428 U.S. 153, 187 (1976) (citations omitted), weighs heavily on a defendant who has been notified by the Commonwealth of its intent to seek the death penalty. However, when a defendant is tried and convicted of a capital crime, the principle that capital punishment must be limited to those whose extreme culpability makes them the most deserving of execution is implemented through a carefully designed capital sentencing process. Roper, 543 U.S. at 568 (citation omitted). The sentencing phase allows the defendant the opportunity to present mitigating evidence to convince the jury that death is not the appropriate punishment.
v. Georgia, 408 U.S. 238, 245-46 (1972) (Douglas, J., concurring); id. at 297-98 (Brennan, J., concurring); id. at 339 (Marshall, J., concurring); id. at 402-03 (Burger, C. J., dissenting); id. at 413 (Blackmun, J., dissenting). Thus, as reflected in
As to this case, if the Appellees go to trial and are convicted, the jury would presumably hear the age-based arguments made before this Court, along with each Appellee‘s individual circumstances when determining the
Appellee‘s sentence. If the jury recommends the death penalty for any of the three Appellees, the Appellee will have review of the appropriateness of that sentence by both the trial judge,
In summary, only when, if ever, one or more of these Appellees is convicted and a jury recommends the death penalty will the circuit court be confronted with an
trial court and this Court will have the scientific evidence necessary to address a truly justiciable constitutional issue.20
CONCLUSION
Because none of the Appellees has standing to present the issue of whether Kentucky‘s death penalty constitutes “cruel and unusual” punishment under the
All sitting. All concur.
COUNSEL FOR APPELLANT:
Daniel Jay Cameron
Attorney General of Kentucky
Matthew Robert Krygiel
Jason Bradley Moore
Assistant Attorneys General
Office of the Attorney General
COUNSEL FOR APPELLEE TRAVIS M. BREDHOLD .:
Timothy G. Arnold
Emily Holt Rhorer
Brandon Neil Jewell
Department of Public Advocacy
COUNSEL FOR APPELLEE EFRAIN DIAZ, JR.:
Timothy G. Arnold
Department of Public Advocacy
COUNSEL FOR APPELLEE JUSTIN SMITH:
Brandon Neil Jewell
Kim Angela Green
Department of Public Advocacy
COUNSEL FOR AMICUS CURIAE: THE COLORADO JUVENILE DEFENSE CENTER AND THE COLORADO CRIMINAL DEFENSE BAR
Rebecca Ballard Diloreto
The Institute for Compassion in Justice
COUNSEL FOR AMICUS CURIAE: NATIONAL ASSOCIATION FOR PUBLIC DEFENSE AND KENTUCKY ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
David Michael Ward
Kentucky Association of Criminal Defense Lawyers
Amy Elizabeth Halbrook
Salmon P. Chase College of Law
COUNSEL FOR AMICUS CURIAE: ATLANTIC CENTER FOR CAPITAL REPRESENTATION; CAMPAIGN FOR FAIR SENTENCING OF YOUTH; CAMPAIGN FOR YOUTH JUSTICE; CENTER FOR LAW, BRAIN AND BEHAVIOR;
Acena Johnson Beck
Children‘s Law Center, Inc.
COUNSEL FOR AMICUS CURIAE: JUVENILE LAW CENTER AND CHILDREN‘S LAW CENTER, INC.
Acena Johnson Beck
Children‘s Law Center, Inc.
Marsha L. Levick
Juvenile Law Center
Notes
A case arises, within the meaning of the Constitution, when any question respecting the Constitution, treatise or laws of the United States has assumed ‘such a form that the judicial power is capable of acting on it.’ Osborn v. Bank, 9 Wheat. 738, 819, 6 L. Ed. 204. The Court was then considering the power of the bank to sue in the federal courts. A declaration on rights as they stand must be sought, not on rights which may arise in the future, Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S. Ct. 67, 69, 53 L. Ed. 150, and there must be an actual controversy over an issue, not a desire for an abstract declaration of the law. Muskrat v. United States, 219 U.S. 346, 361, 31 S. Ct. 250, 255, 55 L. Ed. 246; Fairchild v. Hughes, 258 U.S. 126, 129, 42 S. Ct. 274, 275, 66 L. Ed. 499. The form of the proceeding is not significant. It is the nature and effect which is controlling. Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 259, 53 S. Ct. 345, 346, 77 L. Ed. 730, 87 A.L.R. 1191.