In Ring v. Arizona,1 the Supreme Court held that during capital sentencing, a criminal defendant has a Sixth Amendment right to a jury determination of all facts necessary to render him eligible for the death penalty.2 However, the Court has never decided whether a capital defendant enjoys Sixth Amendment Confrontation Clause rights3 during sentencing4 — and, in particular, during the final phase of sentencing in which the sentencer decides whether an eligible defendant receives life imprisonment or death.5 Recently, in United States v. Umaña,6 the Fourth Circuit held that the Confrontation Clause does not prevent the introduction of hearsay evidence during the final phase of capital sentencing.7 The doctrinally sound reasoning in Umaña illustrates why other courts are unlikely to find that the Confrontation Clause applies during the final phase of capital sentencing. But a disagreement between the majority and the dissent over the Supreme Court’s requirement of “heightened reliability” in capital sentencing highlights an alternative argument for confrontation stemming from Eighth Amendment precedents.
Alejando Enrique Ramirez Umaña was an enforcer for a violent Central American gang known as MS–13.8 Due to his reputation for violence, he was dispatched to North Carolina to settle infighting among the MS–13 cliques in Charlotte.9 During this sojourn, Umaña and MS–13 associates entered into an altercation with fellow diners at a local Mexican restaurant.10 Having perceived a slight when one diner, Ruben Salinas, referred to MS–13 as “fake,” Umaña stayed behind after his associates left.11 He shot and killed Ruben Salinas and his brother, Manuel Salinas.12 Following Umaña’s arrest, a federal grand jury indicted him for the two murders.13 The prosecution sought the death penalty under the Federal Death Penalty Act14 (FDPA).15
At trial, the jury convicted Umaña of murdering both Salinas brothers.16 The jury then found two statutory aggravating factors that rendered Umaña death-eligible under the FDPA.17 But to impose a death sentence after finding a defendant death-eligible, the jury must make a final determination: whether all aggravating factors — statutory and nonstatutory — sufficiently outweigh all mitigating factors so as to justify a death sentence.18 Accordingly, the case proceeded to the sentence “selection” phase where the jury hears evidence and ultimately decides whether to impose a death sentence.19
At the selection phase, the prosecution introduced proof of additional nonstatutory aggravating factors, including evidence that Umaña had previously committed three murders in California.20 Umaña objected and argued that permitting detectives to testify that incarcerated MS-13 gang members had identified him as the killer in the California shootings violated his Sixth Amendment right to confront those gang members.21 The district court overruled Umaña’s objection.22 As a result, evidence of the California murders served as a cornerstone of the prosecution’s successful case for death.23 Umaña appealed the district court’s decision that the Confrontation Clause does not apply to the selection phase of a capital trial.24
The Fourth Circuit affirmed the conviction and sentence.25 Writing for the panel, Judge Niemeyer26 relied on Williams v. New York27 for the proposition that “[c]ourts have long held that the right to confrontation does not apply at sentencing, even in capital cases.”28 Despite Umaña’s claim that intervening case law had eroded Williams, the court found that the case “remains good law” and that it “squarely dispose[d] of Umaña’s [Sixth Amendment] argument.”29 The court further observed that sentencing policies underlying Williams’s holding remain relevant today. Sentencing is a highly discretionary, individualized process rightly unfettered by “rigid adherence to restrictive rules of evidence properly applicable to the trial.”30 Umaña’s claim that the Confrontation Clause should govern evidence at the selection phase would “frustrate the policy of presenting full information to sentencers” and therefore “be a setback for reliable sentencing.”31
The court also rejected Umaña’s argument that the jury engages in “constitutionally significant” factfinding of aggravating factors during the sentence selection stage, which would potentially trigger additional protections under Sixth Amendment. According to the majority, in the selection phase, jurors do not undertake factfinding that “alters the legally prescribed range [of punishment] . . . in a way that aggravates the penalty.”32 Instead, when weighing aggravating and mitigating factors, “a jury is not legally required to find any facts” because “facts are neither necessary nor sufficient to impose the death penalty — they merely guide the jury’s discretion.”33 In fact, “[i]t is only during [the guilt and eligibility] phases that the jury makes ‘constitutionally significant’ factual findings.”34 Thus, “the Confrontation Clause does not preclude the introduction of hearsay statements during the sentence selection phase.”35
Judge Gregory dissented.36 He reasoned that “the Confrontation Clause applies at every stage of an FDPA trial.”37 After conceding that the text of the Confrontation Clause does not provide clear guidance, the dissent characterized the clause’s history as supporting its position,38 and, in particular, disparaged the majority’s reliance on Williams.39 Recent Supreme Court decisions governing “the Sixth Amendment right to factfinding at sentencing, death penalty procedure, and the Confrontation Clause” have undermined Williams’s relevance to modern capital sentencing procedure.40 Finding Ring particularly apposite, the dissent challenged the majority’s assertion that the jury does not make factual findings during the selection phase.41 Instead, the dissent observed, “the jury’s burden in stage three — a finding that the aggravating factors sufficiently outweigh the mitigating factors — ‘is not optional.’”42 Although selection “involves some jury discretion, juries must nonetheless make certain factual findings . . . before a death sentence can be imposed.”43 And because “the permissible range of sentencing is increased” after the jury makes these required findings, the Confrontation Clause attaches.44
Finally, the dissent dismissed the majority’s concerns about providing jurors insufficient information, noting that quantity of information is “but one principle of death sentence jurisprudence”; it must yield “to the more important principle that a death sentence be based on accurate factfinding.”45 Because “[d]eath, in its finality, differs more from life imprisonment than a 100–year prison term differs from one of only a year or two,” there is a heightened need for reliability in the selection of a death sentence.46 The Confrontation Clause is “the constitutionally prescribed method of assessing reliability,” and the district court erred in permitting the jury to consider unconfronted testimony when selecting between life imprisonment and death.47 The Fourth Circuit denied rehearing en banc.48
The Umaña court claimed to straightforwardly dispose of Umaña’s claim under Williams.49 But this rhetoric disguised the consequence of the court’s characterization of the jury’s deliberations during the selection phase as purely discretionary. This characterization poses a challenge to defendants who seek certain Sixth Amendment protections — including the Confrontation Clause — during the selection phase. Because the Fourth Circuit’s reasoning is ultimately persuasive, it is likely the Sixth Amendment’s Confrontation Clause will prove unavailing to capital defendants seeking confrontation rights during sentence selection. Such defendants might instead focus on the Eighth Amendment’s heightened-reliability requirement.
The Confrontation Clause’s application to the selection phase turns not on Williams’s continuing vitality but on whether sentence selection is understood to entail factfinding. In Ring, the Supreme Court held that the Sixth Amendment jury right — and likely by extension the structurally identical Confrontation Clause50 — governs up to the point in sentencing where all facts necessary to impose a death sentence are established,51 but no further. Because the Court did not locate that point along the multistage timeline of capital sentencing, Ring sparked a decade of litigation over when factfinding ends and selection between possible punishments begins.52
The majority and dissent in Umaña disagreed on the answer to this key question. The majority characterized the deliberations as purely discretionary because “any facts that the jury might find during [selection] do not alter the range of sentences it can impose on the defendant.”53 The dissent responded plainly, “[t]his is incorrect.”54 Though the defendant is death-eligible before the selection phase, the jury must still determine that aggravating factors outweigh mitigating factors — a finding that is necessary to the imposition of a death sentence.
The Umaña majority’s reasoning is likely to prevail if the question is ever posed to the Supreme Court.55 A capital defendant does not have a Sixth Amendment right to be sentenced by a jury.56 This remains true even in the wake of Ring, suggesting that the ultimate sentencing decision does not entail factfinding of the kind protected by Ring.57 And the Court has observed that when a jury is tasked with selecting a sentence, as it is under the FDPA, “its deliberations assume a different tenor.”58 After a defendant is found death-eligible, “[t]he emphasis shifts” from consideration of “objective factors” to weighing aggravating and mitigating factors to make an “individualized consideration of a particular defendant.”59 The Court’s remarks support a view of selection as a moral decision untethered from the requirement of formal factfinding, and thus unprotected by some of the Sixth Amendment guarantees. The Umaña majority’s reasoning comports with this understanding and suggests attempts to secure confrontation rights during the selection phase under the Sixth Amendment will ultimately be unsuccessful.
However, an alternative argument might be found in the other familiar theme addressed by both the Umaña majority and dissent: “death is different.”60 Since Woodson v. North Carolina,61 the Supreme Court has marked death as a sentence “qualitatively different from a sentence of imprisonment,” deserving of a “corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”62 And although the Supreme Court has often imposed “limitations on capital sentence decisionmaking” based on its belief that death is different, “it has not yet delineated the exact scope of constitutional procedural protection to which capital defendants are entitled.”63
The ambiguity of the heightened-reliability requirement persists.64 In Umaña, the judges splintered again over the procedural prerequisites to a “reliable” death sentence. The majority required only procedures that suitably modulate sentencing discretion at each decision point: procedures must specify ex ante the offenses for which death is a permissible punishment (cabin discretion at eligibility) and then ensure consideration of all evidence relevant to selection of punishment once the defendant is death-eligible (expand discretion at selection).65 Here, “where the Court discusses the need for reliability in the Eighth Amendment context,” it does not mean “reliability of evidence.”66
Yet the majority’s interpretation is by no means the required reading of Eighth Amendment precedent. Without disclaiming the requirement of “streamlin[ed] discretion,”67 the dissent adopted some of the arguments advanced by Umaña and looked beyond decisionmaking procedures to also consider the quality of information relied upon in the ultimate sentencing decision. Though this reasoning lacks an explicit grounding in precedent, the Supreme Court has been willing to police the content of information presented to sentencers under the auspices of the Eighth Amendment since Gardner v. Florida,68 where the Court again referenced an “interest in reliability” when it prohibited consideration of secret presentence reports during capital sentencing.69 The Court appears to have at least contemplated that a singular focus on the quantity of information presented at sentencing must give way to a “greater concern for the quality of such information.”70 The Court’s emphasis in Gardner “on the reliability of the factfinding underlying the decision whether to impose the death penalty”71 lends support to the extension of the confrontation right — the “greatest legal engine ever invented for the discovery of truth” — to sentencing.72
More recently, in Kansas v. Marsh,73 four dissenting justices, concerned by recent exonerations, maintained “[t]he Eighth Amendment . . . demands both form and substance, both a system for decision and one geared to produce morally justifiable results.”74 The dissenters argued that empirical evidence of wrongful convictions “must be accounted for in deciding what . . . the Eighth Amendment guarantees should tolerate.”75 Similarly, a concern for wrongfully imposed death sentences might inform what the Eighth Amendment requires. Reliance on faulty evidence renders jurors incapable of fulfilling the “truly awesome responsibility” of imposing a morally justifiable death sentence.76
The Eighth Amendment case for some form of confrontation during capital sentencing proceedings is not widely accepted, but if it gains traction, it might provide an alternative route to an outcome that will likely be unavailable under the Sixth Amendment. The argument is not susceptible to the artificial line-drawing between factfinding and discretion laid down in Ring. Furthermore, capital sentencing is easily distinguished from noncapital sentencing under the Eighth Amendment, so extending confrontation rights in the capital context would not upset noncapital sentencing schemes that do not require confrontation.