Deep Impact: 9th Circuit Concludes That Retroactive Application Of Victim Impact Law Isn’t Ex Post Facto

Article I, Section 9 of the Constitution states in relevant part that

No bill of attainder or ex post facto Law shall be passed.

And, Article I, Section 10 states in relevant part that 

No state shall enter into any ex post facto law.

Pursuant to the Supreme Court’s opinion in Calder v. Bull, these Ex Post Facto clauses prohibit the retroactive application of, inter alia, 

“Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.”

Moreover, “[w]hile the Ex Post Facto Clause applies directly to legislative acts, the Fourteenth Amendment extends Article 1, Section 10’s prohibition on ex post facto laws to include judicial decisions.” So, can a new law allowing for the admission of victim impact evidence be applied retroactively consistent with the Ex Post Facto clauses? According to the recent opinion of the Ninth Circuit in Gentry v. Sinclair, 2012 WL 3667319 (9th Cir. 2012), the answer is “no.” “yes.” I disagree.

In Gentry, Jonathan Gentry was convicted in a Washington state court of aggravated first-degree murder, with a finding of the aggravating circumstance of committing the murder to protect or conceal the identity of a person committing a crime, and was sentenced to death. After Gentry’s crime, but before his trial, Washington passed the Washington Victims’ Rights Amendment (VRA), which allowed for the admission ofvictim impact evidence. With the Supreme Court’s opinion in Payne v. Tennessee, the VRA became effective, allowing for the admission of victim impact evidence at Gentry’s sentencing hearing.

After he was sentenced, he appealed, claiming that the VRA and Payne could not be applied retroactively consistent with the Ex Post Facto clauses. The Ninth Circuit acknowledged that “[t]he Ex Post Facto Clause bars the government from passing laws that impose a new punishment or increase punishment for a crime committed before passage of the law.” But the court then found that

Only certain types of changes in the rules of evidence fall into th[e] fourth Calder category. There is a violation under this category when laws that require a minimum type or amount of evidence for conviction are changed by eliminating a type of evidence or decreasing the amount of evidence needed for conviction. However, an ex post facto problem does not arise for a law that “does nothing more than admit evidence of a particular kind in a criminal case…which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed.”…

While the decision in Payne allowed victim impact statements to be admitted, the change did not lessen the degree or amount of evidence required to impose the death sentence. The prosecution was still required to meet its burden of proving a statutory aggravating factor during the guilt phase of the trial and rebutting mitigating evidence at the sentencing phase….The penalty phase jury was still required to weigh the victim impact statement, in conjunction with the other evidence, to determine whether that evidence was sufficient to overcome a presumption that remained the same both before and after Payne. While allowing victim impact evidence gave the prosecution an additional option in terms of the range of evidence that could be used to meet its burden, the change in law did not allow the prosecution to obtain a sentence on less evidence.

Let’s reconsider this last sentence again: “While allowing victim impact evidence gave the prosecution an additional option in terms of the range of evidence that could be used to meet its burden, the change in law did not allow the prosecution to obtain a sentence on less evidence.” And, let’s now reconsider the fourth Calder category: “Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.”

Do you see the problem? According to the Ninth Circuit, the VRAa and Payne allowed the prosecution to obtain a sentence on “different evidence” because it gave the prosecution an “additional option….” But this wasn’t good enough according to the court because it did not allow the prosecution to obtain a sentence on “less evidence.” If we look at the language of Calder, we see that this dichotomy cannot hold. Instead, Calder recognizes that new rules of evidence are Ex Post Facto if they allow for a conviction or sentence based upon “less, or different, testimony.” So, what is the justification for the dichotomy created by the Ninth Circuit? 

-CM