“Our Courts, Our Fight” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties and the need for the Senate to confirm President Biden’s federal court nominees to help counteract these effects. Supreme and appellate court cases in the series can be found by issue and by judge at this link.

 

Trump Judge Daniel P. Collins cast the deciding vote in an October 2021 case rejecting an appeal from an individual on death row. In McGill v. Shinn, Collins joined  a 2-1 Ninth Circuit panel decision rejecting the claim that the death sentence was improper and violated the Constitution’s Ex Post Facto clause because the  government had sentenced a man to death based on a sentencing law that did not exist when he committed the acts he was prosecuted for.

Leroy McGill was arrested after participating in action that resulted in the death of his former housemate in June 2002. McGill suffered from several drug addictions and a history of childhood abuse that a neuropsychologist testified left him vulnerable to emotional manipulation by his then-girlfriend, who encouraged the conduct. McGill was nonetheless convicted of first-degree murder and was sentenced to death.

McGill’s death sentence occurred even though, at the time he committed the conduct, Arizona did not have an enforceable death penalty provision on the books. Earlier in 2002, the Supreme Court had overturned Arizona’s death penalty law, holding that the discretion it gave judges in imposing the death penalty was unconstitutional. A month later, Arizona updated its law to give juries the ultimate power to impose the death penalty. However, Arizona did not update its death penalty laws until after McGill committed the acts in question, meaning McGill was sentenced under a law that did not exist when he carried out the acts for which he was convicted.

McGill appealed his sentence and argued, among other things, that it violates the Ex Post Facto Clause of the Constitution’s prohibition on retroactive punishments. Both the Arizona Supreme Court and a federal district court ruled against McGill. With Trump judge Collins’ deciding vote, the Ninth Circuit panel similarly upheld McGill’s sentence.

The Supreme Court has previously ruled that for a conviction to violate the Ex Post Facto Clause, it must have been retroactive, have disadvantaged the defendant in some way, and must have substantively changed the punishment in a way that is not merely procedural. While the majority in the Ninth Circuit’s decision acknowledged that McGill’s sentence met the first two of these requirements, it maintained that the changes made to Arizona’s death penalty law were “plainly procedural, not substantive,” because only the procedure used to sentence individuals to death ultimately changed. The majority claimed that McGill therefore received “fair warning as to the degree of culpability which the State ascribed to the act of murder.”

Judge Milan Smith, who was nominated by President George W Bush,  strongly dissented, explaining that the changes to Arizona’s death penalty law after McGill’s acts were not merely procedural. Changing the law from “no possibility of the death penalty to possibility of the death penalty” was entirely a substantive change, Smith maintained, because “there was no risk that McGill would be sentenced to death for his crimes at the time they were committed”. In short, if Arizona had not updated its death penalty statute before McGill’s conviction, he could only have received a sentence of life in prison. Instead, he was sentenced to death, a drastically different outcome going far beyond procedure.

There was no disagreement among the three judges that McGill deserves to be punished severely. However, under the majority’s view thanks to Trump judge Collins, McGill received the ultimate punishment under a death sentence law that did not exist at the time he committed the crime for which he was convicted. The Constitution’s Ex Post Facto Clause embodies the principle of equal justice for all by ensuring no individual can face punishment under a law applied retroactively. The majority’s ruling, made possible by Trump judge Collins, subverts the meaning of this clause by claiming decisions of life and death are mere technicalities. This case illustrates the importance of confirming  judges, as part of our fight for our courts, who will consistently vote to uphold the Constitution and all its protections.

Note: Andrew Kliewer is a law student fellow at People For the American Way.