Standing Standards

Yesterday, one of my clients received very good news: a state s court ruled that his death sentence had to be set aside because the jury was misled about what sentence he could receive. I was--and am--thrilled. It was an order a decade in the making. It takes my client off of death row (for now) and may ultimately save his life. 

But the order included a surprising wrinkle: the court concluded that deciding whether my client could again be sentenced to death would not benefit him in any way. We had argued he was not eligible for a death sentence. But the court declined to address that question. 

And yet the court's order was for a new resentencing proceeding and the court noted he could again face a death sentence. For my money, not being eligible for a death sentence would be a benefit, particularly if the state has tried to kill you once before. So what gives? 

The court thought my client no longer had standing. 

Standing: Whether a dispute can be resolved by a court is generally referred to as its "justiciability." A dispute is justiciable if the court has the power to decide it. In federal court, one limit on justiciability is a requirement that the court's decision will have a real world effect. If a party will be affected by the decision, they do not have "standing" to bring seek a decision from the court. So, if deciding the fight won't have any real-world impact, then the federal courts stay out of it. In federal court, this limit is based on the constitution's requirement that courts only address "cases and controversies." 

State courts aren't limited in the same way. Nothing in the federal constitution keeps them from issuing an opinion even if there is no real world effect, something called an "advisory opinion." Plenty of states, including where my client still faces potential execution, allow for advisory opinions, particularly when there is some substantial chance the opinion could affect the parties in the future. (There is a related federal doctrine for issues likely to recur, but evading review.)

In state and federal court, being able to obtain additional forms of relief means there is a live case and controversy. If the car dealer has an order for back payments, that doesn't mean his effort to repossess the car would no longer affect things in the real world. There's still a remedy out there, so there's still a "case and controversy." 

And so goes for being eligible for another death sentence. Or so a I thought. 

Moot Point: One of the main reasons for concluding a person lacks standing is because the case has become "moot." Here "moot" means the same thing as in the phrase "moot point": it's otherwise been resolved. So when the court yesterday said that the order setting aside the death sentence made my client's eligibility for a death sentence agin in the future was "moot," the court meant the question no longer mattered. 

From the outside, I can see how the court's take has some intuitive appeal: there's no longer a death sentence, so it follows that there is no real world effect from addressing whether my client could be sentenced to death. 

But this decision is problematic for several reasons. First, there is a real world effect. The state can again try to kill my client! If the court had addressed the eligibility question, that would not be the case. 

Second, other decisions recognize that under very similar circumstances a case is not moot. And court's are bound to follow precedent, so the order here seems out of step with that norm. 

Third, we aren't even in federal court. It was a state court and in a state that has not adopted the federal standing requirement. The court even acknowledged as much, but it said it was using its discretion to decline to do so. 

What Gives?: So, if I'm so right, why didn't the court agree? I don't know. 

But my guess is fatigue. As I mentioned, my involvement in the case has spanned a decade, mostly in front of this same judge. We've had lots of briefing and lengthy oral arguments. And I think the judge feels like he gave my client relief, and that should be enough. 

I don't think the judge even disagrees with much of anything I briefed on justiciability and mootness. I just think the years of litigation and reams of legal documents in front of the court made the judge biased. Not biased towards or against my client. Just biased towards resolution and towards wrapping up the case. I think the judge was tired, had granted some relief, and was just done. 

Unfortunately for my client, he is not done. The state may, and likely will, again try to kill him. And I will continue to press our case for his not being eligible for a death sentence and failing that, for a life sentence in recognition of his value as a human being.