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SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
BENNY LEE HODGE v. KENTUCKY
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF KENTUCKY
No. 11–10974. Decided December 3, 2012
The petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, dissenting from denial of certiorari.
Petitioner Benny Lee Hodge was convicted of murder.
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
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-
2 HODGE v. KENTUCKY
SOTOMAYOR, J., dissenting
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-
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
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
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
Cite as: 568 U. S. ____ (2012) 3
SOTOMAYOR, J., dissenting
older, he escaped his mother’s next husband, a drunkard,
by staying with his stepfather’s parents, bootleggers who
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.
And following many beatings, Hodge and his sisters
thought their mother was dead.
Billy Joe also targeted Hodge’s sisters, molesting at
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
from his belt buckle on Hodge’s body. Hodge was kicked,
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.
4 HODGE v. KENTUCKY
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
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
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
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
her to the floor.’ ” Id., at 10. Hodge’s conduct after the
murder was shocking as well: He and the two other rob-
Cite as: 568 U. S. ____ (2012) 5
SOTOMAYOR, J., dissenting
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
committing terribly violent and cruel murders are the
subjects of terrible childhoods. Even if the sentencing
jury had this mitigation evidence before it, we do not
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
6 HODGE v. KENTUCKY
SOTOMAYOR, J., dissenting
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-
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
weight” in that decision. Gall v. Commonwealth, 607 S. W. 2d 97, 104
(Ky. 1980). See also Porter, 558 U. S., at 40, 42 (applying Wiggins to an
“advisory jury”).
Cite as: 568 U. S. ____ (2012) 7
SOTOMAYOR, J., dissenting
“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
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
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
future conduct.” Ibid. Although “any such inferences
would not relate specifically to [the defendant’s] culpabil-
8 HODGE v. KENTUCKY
SOTOMAYOR, J., dissenting
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.”
545 U. S., at 378; see id., at 391–392 (describing the abuse
Cite as: 568 U. S. ____ (2012) 9
SOTOMAYOR, J., dissenting
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-
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
10 HODGE v. KENTUCKY
SOTOMAYOR, J., dissenting
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
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.