Abuse History Fails to Help Death Row Inmate

WASHINGTON (CN) - Justice Sonia Sotomayor complained Monday that Kentucky will execute a man who suffered "most severe and unimaginable level of physical and mental abuse" as a child.

The Supreme Court refused to grant a writ of certiorari for death-row inmate Benny Lee Hodge based on claims that his trial counsel failed to present any mitigating evidence at the penalty phase of trial.

A jury had convicted Hodge and a co-defendant of killing a woman during a robbery. The men had posed as FBI agents to enter a home, choked the doctor who owned it until he passed out, and killed the doctor's daughter by stabbing her at least 10 times. They stole around $2 million in cash, as well as jewelry and guns, from a safe.

Though Kentucky conceded that Hodge's lawyers had performed deficiently by not presenting mitigation evidence, the state Supreme Court said such testimony would not have "explained" Hodge's actions, and thus the jury would have arrived at the same result.

Sotomayor called this an "error" on Monday.

"Mitigation 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," she wrote. "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 deci­sion under the proper standard."

During postconviction review, Hodge presented evidence that the abuse he suffered began in utero. His childhood was marked by what the Kentucky Supreme Court called the "most severe and unimaginable level of physical and mental abuse."

"Hodge's father battered his mother while she carried Hodge in her womb, and continued to beat her once Hodge was born, even while she held the infant in her arms," Sotomayor wrote. "When Hodge was a few years 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."' 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 mis­carriage. 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 often 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 aver­age 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 juve­nile 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.

Psychologists testified that the abuse probably caused Hodge to develop post-traumatic stress disorder.

By ignoring the import of such evidence, the Kentucky Supreme Court ignored precedent, Sotomayor said.

"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 consid­ered it as weighty mitigation," she wrote. "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. ...

Though the mitigation evidence may not have changed the jury's decision, "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 juror would have struck a different balance' had the jury known," Sotomayor said.

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