Cite as: 568 U. S. ____ (2012)
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` SOTOMAYOR, J., dissenting
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`SUPREME COURT OF THE UNITED STATES
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` BENNY LEE HODGE v. KENTUCKY
`ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
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`
`COURT OF KENTUCKY
`
`
` No. 11–10974. Decided December 3, 2012
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`The petition for a writ of certiorari is denied.
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` JUSTICE SOTOMAYOR, dissenting from denial of certiorari.
`
`Petitioner Benny Lee Hodge was convicted of murder.
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`Then, after his trial counsel failed to present any mitiga-
`tion evidence during the penalty phase of his trial, he was
`sentenced to death. In fact, counsel had not even investi-
`gated any possible grounds for mitigation. If counsel had
`made any effort, he would have found that Hodge, as a
`child, suffered what the Kentucky Supreme Court called
`a “most severe and unimaginable level of physical and
`mental abuse.” No. 2009–SC–000791–MR (Aug. 25, 2011),
`App. to Pet for Cert. 11. The Commonwealth conceded
`that counsel’s performance was constitutionally deficient
`as a result. Yet the court below concluded that Hodge
`would have been sentenced to death anyway because even
`if this evidence had been presented, it would not have
`“explained” his actions, and thus the jury would have ar-
`
` rived at the same result. Ibid. This was error. Mitiga-
`tion evidence need not, and rarely could, “explai[n]” a
`heinous crime; rather, mitigation evidence allows a jury to
`make a reasoned moral decision whether the individual
`defendant deserves to be executed, or to be shown mercy
`instead. The Kentucky Supreme Court’s error of law could
`well have led to an error in result. I would grant the
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`petition for certiorari, summarily vacate, and remand to
`allow the Kentucky Supreme Court to reconsider its deci-
`sion under the proper standard.
`I
`Hodge and two others posed as Federal Bureau of Inves-
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`HODGE v. KENTUCKY
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` SOTOMAYOR, J., dissenting
`
`
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` tigation agents to gain entry to the home of a doctor. Once
`inside, they strangled the doctor into unconsciousness,
`stabbed his college-aged daughter to death, and stole
`around $2 million in cash, as well as jewelry and guns,
`from a safe. A jury convicted Hodge and a codefendant of
`murder and related charges. Epperson v. Commonwealth,
`809 S. W. 2d 835, 837 (Ky. 1990). In advance of the pen-
`
`alty phase of his trial, Hodge’s counsel conducted no inves-
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`tigation into potential mitigation evidence and presented
`no evidence to the jury. The Commonwealth did not put on
`evidence of aggravating circumstances either, beyond the
`facts of the crime. Instead, the parties agreed that the
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`jury should be read this stipulation: “‘Benny Lee Hodge
`has a loving and supportive family—a wife and three
`children. He has a public job work record and he lives and
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`resides permanently in Tennessee.’” App. to Pet. for Cert.
`
`5. After hearing argument from counsel on both sides, the
`jury recommended a sentence of death, which the trial
`court imposed.
`
`
`On postconviction review in Kentucky state court,
`Hodge alleged that his counsel had been ineffective dur-
`ing the penalty phase for failing to investigate, discover,
`and present readily available mitigation evidence concern-
`
`ing his childhood, which was marked by extreme abuse.
`Hodge was granted an evidentiary hearing, during which
`he presented extensive mitigation evidence and the testi-
`mony of expert psychologists. The Commonwealth did not
`contest Hodge’s evidence, although it did not concede that
`all the evidence would have been available or admissible
`at the time of trial. The Kentucky Supreme Court cred-
`ited the evidence and found it would have been available
`
`
`at the time of trial. The evidence established the following:
`
`The beatings began in utero. Hodge’s father battered
`his mother while she carried Hodge in her womb, and con-
`tinued to beat her once Hodge was born, even while she
`held the infant in her arms. When Hodge was a few years
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` Cite as: 568 U. S. ____ (2012)
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` SOTOMAYOR, J., dissenting
`
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`older, he escaped his mother’s next husband, a drunkard,
`by staying with his stepfather’s parents, bootleggers who
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`ran a brothel. His mother next married Billy Joe. Family
`members described Billy Joe as a “‘monster.’” Id., at 7.
`Billy Joe controlled what little money the family had,
`leaving them to live in abject poverty. He beat Hodge’s
`mother relentlessly, once so severely that she had a mis-
`carriage. He raped her regularly. And he threatened to
`kill her while pointing a gun at her. All of this abuse
`occurred while Hodge and his sisters could see or hear.
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`And following many beatings, Hodge and his sisters
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`thought their mother was dead.
`Billy Joe also targeted Hodge’s sisters, molesting at
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`least one of them. But according to neighbors and family
`members, as the only male in the house, Hodge bore the
`brunt of Billy Joe’s anger, especially when he tried to
`defend his mother and sisters from attack. Billy Joe of-
`ten beat Hodge with a belt, sometimes leaving imprints
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`from his belt buckle on Hodge’s body. Hodge was kicked,
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`thrown against walls, and punched. Billy Joe once made
`Hodge watch while he brutally killed Hodge’s dog. On
`another occasion, Billy Joe rubbed Hodge’s nose in his own
`feces.
`The abuse took its toll on Hodge. He had been an aver-
`
`age student in school, but he began to change when Billy
`Joe entered his life. He started stealing around age 12,
`and wound up in juvenile detention for his crimes. There,
`Hodge was beaten routinely and subjected to frequent
`verbal and emotional abuse. After assaulting Billy Joe
`at age 16, Hodge returned to juvenile detention, where
`
`the abuse continued. Hodge remained there until he
`was 18. Over the 16 years between his release from juve-
`nile detention and the murder, Hodge committed various
`theft crimes that landed him in prison for about 13 of
`those years. He twice escaped, but each time, he was
`recaptured.
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`HODGE v. KENTUCKY
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`SOTOMAYOR, J., dissenting
`
`
` Psychologists who testified at Hodge’s evidentiary hear-
`
`ing, and were credited by the court below, explained that
`the degree of domestic violence Hodge suffered was ex-
`tremely damaging to his development. The environment
`caused “‘hypervigilance’”—a state of constant anxiety that
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`left Hodge always “‘waiting for the next shoe to fall.’” Pet.
`
`for Cert. 7. It taught him “‘that the world was a hos-
`tile place and that he was not going to be able to count
`on anybody else to protect him’”—not his family and not
`
`society. Id., at 8. Being taken to a juvenile facility only to
`be beaten more likely hit Hodge as a “‘double betrayal.’”
`Id., at 9. The result was that Hodge had posttraumatic
`stress disorder. Unable to control his behavior and his
`emotions because of PTSD, he turned to drugs and alcohol
`to numb his feelings. This condition could have been
`diagnosed at the time of his trial.
`
`The Commonwealth conceded that counsel was deficient
`for failing to gather and present this evidence at the pen-
`alty phase of Hodge’s trial. But it contended that Hodge
`would have been sentenced to death even if the evidence
`had been presented. Examining the evidence, the Ken-
`tucky Supreme Court had “no doubt that Hodge, as a
`child, suffered a most severe and unimaginable level of
`physical and mental abuse.” App. to Pet. for Cert. 11. Yet
`it felt “compelled to reach the conclusion that there exists
`no reasonable probability that the jury would not have
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`sentenced Hodge to death” anyway. Ibid.
`
`The Court based its conclusion in part on the aggra-
`vating circumstances against which the jury would have
`had to weigh the mitigation evidence. The murder itself
`
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`was “calculated and exceedingly cold-hearted.” Id., at 9.
`Hodge stabbed the daughter “at least ten times,” and he
`“coolly” told his codefendant that he knew the daughter
`“was dead because the knife had gone ‘all the way through
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`her to the floor.’” Id., at 10. Hodge’s conduct after the
`murder was shocking as well: He and the two other rob-
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` Cite as: 568 U. S. ____ (2012)
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` SOTOMAYOR, J., dissenting
`
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`bers “brazenly spent the stolen money on a lavish lifestyle
`and luxury goods, including a Corvette,” and Hodge told a
`cellmate he had “sprea[d] all the money out on a bed and
`ha[d] sex with his girlfriend on top of it.” Ibid. Moreover,
`had Hodge put on evidence in mitigation, the Common-
`wealth may have sought to introduce evidence of Hodge’s
`“long and increasingly violent criminal history, his numer-
`ous escapes from custody, and the obvious failure of sev-
`eral rehabilitative efforts.” Id., at 9.
`The court’s conclusion was also based, however, on what
`
`
`effect the mitigation evidence might have had:
`“Perhaps this information may have offered insight
`for the jury, providing some explanation for the career
`criminal he later became. If it had been admitted, the
`PTSD diagnosis offered in mitigation might have ex-
`plained Hodge’s substance abuse, or perhaps even a
`crime committed in a fit of rage as a compulsive re-
`action. But it offers virtually no rationale for the
`premeditated, cold-blooded murder and attempted
`murder of two innocent victims who were complete
`strangers to Hodge. Many, if not most, malefactors
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`committing terribly violent and cruel murders are the
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`subjects of terrible childhoods. Even if the sentencing
`jury had this mitigation evidence before it, we do not
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` believe, in light of the particularly depraved and bru-
`tal nature of these crimes, that it would have spared
`Hodge the death penalty.” Id., at 11.
`Accordingly, the court denied Hodge relief.
`
`II
`
`The Sixth Amendment guarantees capital defendants
`the effective assistance of counsel during the penalty
`phase of trial. This right includes counsel’s “obligation to
`conduct a thorough investigation of the defendant’s back-
`ground,” Williams v. Taylor, 529 U. S. 362, 396 (2000), so
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`HODGE v. KENTUCKY
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` SOTOMAYOR, J., dissenting
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`as “to uncover and present . . . mitigating evidence” to
`the jury at sentencing. Wiggins v. Smith, 539 U. S. 510,
`522 (2003). It is uncontested that trial counsel failed to
`discharge that duty here. But to establish a Sixth
`Amendment violation, Hodge must also demonstrate that
`counsel’s failures prejudiced his defense. In Strickland v.
`Washington, 466 U. S. 668 (1984), we explained that a
`“defendant must show that there is a reasonable probabil-
`ity that, but for counsel’s unprofessional errors, the result
`of the proceeding would have been different.” Id., at 694.
`In the capital sentencing context, to assess prejudice, “we
`reweigh the evidence in aggravation against the totality of
`available mitigating evidence.” Wiggins, 539 U. S., at 534;
`see also Sears v. Upton, 561 U. S. ___, ___ (2010) (per
`
`curiam) (slip op., at 10–11); Porter v. McCollum, 558 U. S.
`30, 41 (2009) (per curiam); Rompilla v. Beard, 545 U. S.
`374, 393 (2005). The critical question is whether “there is
`a reasonable probability that at least one juror would have
`struck a different balance” in weighing the evidence for
`and against sentencing the defendant to death. Wiggins,
`539 U. S., at 537.*
`
`In applying this standard, the Kentucky Supreme Court
`
`properly took account of the possible evidence in aggrava-
`tion. But in discounting the countervailing effect of
`Hodge’s proposed mitigation, the court misunderstood the
`purpose of mitigation evidence. The court reasoned that
`Hodge’s mitigation evidence might have altered the jury’s
`recommendation only if it “explained” or provided some
`——————
`*At the time Hodge was sentenced, Kentucky required jury unanim-
`
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` ity to recommend a sentence of death. Cf. Carson v. Commonwealth,
` 382 S. W. 2d 85, 95 (Ky. App. 1964); Ky. Rev. Stat. Ann. §532.025
`
`(Michie 1985). The trial court was responsible for the ultimate sentenc-
`ing determination, but the jury’s recommendation was to “carr[y] great
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`weight” in that decision. Gall v. Commonwealth, 607 S. W. 2d 97, 104
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`(Ky. 1980). See also Porter, 558 U. S., at 40, 42 (applying Wiggins to an
`“advisory jury”).
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` Cite as: 568 U. S. ____ (2012)
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` SOTOMAYOR, J., dissenting
`
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` “rationale” for his conduct. App. to Pet. for Cert. 11. We
`
`have made clear for over 30 years, however, that mitiga-
`tion does not play so limited a role. In Lockett v. Ohio, 438
`
`
`U. S. 586 (1978), we held that the sentencer in a capital
`case must be given a full opportunity to consider, as a
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`
`mitigating factor, “any aspect of a defendant’s character
`or record,” in addition to “any of the circumstances of
`the offense that the defendant proffers as a basis for a sen-
`tence less than death.” Id., at 604 (plurality opinion)
`(emphasis added). We emphasized the “need for treating
`each defendant in a capital case with that degree of re-
`spect due the uniqueness of the individual.” Id., at 605.
`
`This rule “recognizes that ‘justice . . . requires . . . that
`there be taken into account the circumstances of the of-
`fense together with the character and propensities of the
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`offender,’” as part of deciding whether the defendant is
`to live or die. Eddings v. Oklahoma, 455 U. S. 104, 112
`(1982) (quoting Pennsylvania ex rel. Sullivan v. Ashe, 302
`U. S. 51, 55 (1937)). And it ensures that “‘the sentence
`imposed at the penalty stage . . . reflect[s] a reasoned
`moral response to the defendant’s background, character,
`and crime.’” Abdul-Kabir v. Quarterman, 550 U. S. 233,
`
`252 (2007) (quoting California v. Brown, 479 U. S. 538,
`545 (1987) (O’Connor, J., concurring)).
`
`Thus we have consistently rejected States’ attempts to
`limit as irrelevant evidence of a defendant’s background or
`character that he wishes to offer in mitigation. In Skipper
`v. South Carolina, 476 U. S. 1 (1986), for example, we held
`that the exclusion of evidence regarding the defendant’s
`good behavior in jail while awaiting trial deprived him of
`“his right to place before the sentencer relevant evidence
`
`
`in mitigation of punishment.” Id., at 4. We explained that
`the jury “could have drawn favorable inferences . . . re-
`garding [the defendant’s] character and his probable
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`future conduct.”
`Ibid. Although “any such inferences
`would not relate specifically to [the defendant’s] culpabil-
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`8
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`HODGE v. KENTUCKY
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` SOTOMAYOR, J., dissenting
`
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`ity for the crime he committed, . . . such inferences would
`be ‘mitigating’ in the sense that they might serve ‘as a
`basis for a sentence less than death.’” Id., at 4–5 (quoting
`Lockett, 438 U. S., at 604 (plurality opinion)).
`
`Particularly instructive is Smith v. Texas, 543 U. S. 37
`
`(2004) (per curiam). In Smith, the Texas courts withheld
`a mitigation instruction concerning the defendant’s back-
`ground, on the ground that he had offered “no evidence of
`any link or nexus between his troubled childhood or his
`limited mental abilities and this capital murder.” Ex parte
`Smith, 132 S. W. 3d 407, 414 (Tex. Crim. App. 2004). We
`rejected this “nexus” requirement as one we had “never
`countenanced,” and we reiterated that the only relevant
`question is whether the proposed mitigation evidence
`would give a jury “a reason to impose a sentence more
`lenient than death.” 543 U. S., at 44–45.
`The Kentucky Supreme Court’s opinion is plainly con-
`
`trary to these precedents. The evidence of Hodge’s brutal
`upbringing need not have offered any “rationale” for the
`murder he committed in order for the jury to have consid-
`ered it as weighty mitigation. It would be enough if there
`were a “reasonable probability” that, because of Hodge’s
`tragic past, the jury’s “reasoned moral response” would
`instead have been to spare his life and sentence him to life
`imprisonment instead.
`More fundamentally, the Kentucky Supreme Court
`
`appears to believe that in cases involving “violent and
`cruel murders,” it does not matter that the “malefacto[r]”
`had a “terrible childhoo[d]”; the jury would return a death
`sentence regardless. App. to Pet. for Cert. 11. That view
`is contrary to our cases applying Strickland’s prejudice
`
`prong. In Rompilla, for example, we considered counsel’s
`failure “to present significant mitigating evidence about
`Rompilla’s childhood,” which was as horrific as Hodge’s, as
`well as his “mental capacity and health, and alcoholism.”
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`545 U. S., at 378; see id., at 391–392 (describing the abuse
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`9
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` Cite as: 568 U. S. ____ (2012)
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` SOTOMAYOR, J., dissenting
`
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`in Rompilla’s household while he was young). We con-
`
`cluded that “the undiscovered mitigating evidence, taken
`as a whole, might well have influenced the jury’s appraisal
`of Rompilla’s culpability, and the likelihood of a different
`result if the evidence had gone in is sufficient to under-
`mine confidence in the outcome actually reached at sen-
`tencing.” Id., at 393 (internal quotation marks, citations,
`and brackets omitted). We reached this conclusion not-
`withstanding that Rompilla had been convicted of stab-
`bing a man repeatedly and setting him on fire. Id., at 377.
`Similarly, we found prejudice in Wiggins even though the
`defendant had drowned a 77-year-old woman in her bath-
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`tub. 539 U. S., at 514. The evidence of “severe physical
`and sexual abuse” Wiggins suffered as a child was suffi-
`ciently “powerful” that “[h]ad the jury been able to place
`[Wiggins’] excruciating life history on the mitigating side
`of the scale, there [was] a reasonable probability that at
`least one juror would have struck a different balance.” Id.,
`at 516, 534, 537.
`
`The Kentucky Supreme Court’s brief discussion of the
`weight and impact of Hodge’s mitigation evidence reason-
`ably suggests that its prejudice determination flowed from
`its legal errors. Perhaps if the court had afforded proper
`consideration to the mitigation evidence, it still would
`have reached the same result; it might have found no
`“reasonable probability” that the jury would have weighed
`Hodge’s difficult past more heavily in its moral calculation
`than the callous nature of the crime and Hodge’s history
`of imprisonment and escape. But, giving full effect to the
`mitigation evidence, the court may well have concluded
`that the story of Hodge’s childhood was so extraordinary,
`“there is a reasonable probability that at least one ju-
`ror would have struck a different balance” had the jury
`known. Id., at 537; see also Porter, 558 U. S., at 42. A
`“reasonable probability” is only “a probability sufficient to
`undermine confidence in the outcome.” Strickland, 466
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`10
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`HODGE v. KENTUCKY
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` SOTOMAYOR, J., dissenting
`
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`U. S., at 694. Absent its errors, the Kentucky Supreme
`Court may have found that minimal threshold met on
`these facts.
`We are a reviewing court, so I would leave it to the
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`Kentucky Supreme Court to reweigh the evidence under
`the proper standards in the first instance. But this is a
`capital case, and clear errors of law such as those here
`should be redressed. I respectfully dissent from our fail-
`ure to grant the petition for certiorari, vacate the judg-
`ment below, and remand for further consideration.