Lesser Included Offenses: Applicability Of Beck v. Alabama To Non-Capital Cases

There is a seemingly illogical constitutional dichotomy concerning the failure to instruct on lesser included offenses. In Beck v. Alabama (a capital case) the U.S. Supreme Court recognized that giving the jurors an all-or-nothing choice may undermine the fairness and reliability of the trial. However, even though the Beck rationale should apply in both death penalty and non-death penalty cases, it has consistently been limited to death cases. (See e.g. Sabillo v. Sec'y, Dept' of Corr. (UNPUBLISHED) [excerpt after the jump].) (But see also Conde v. Henry (9th Cir. 1999) 198 F3d 734 [Failure to give a requested instruction on a lesser offense implicates the federal constitution if the refusal prevents the defendant from presenting his or her theory of the case].

Sabillo v. Sec'y, Dep't of Corr., (11th Cir. Fla., No. 08-11544, Dec. 4, 2009)
[NOTICE: This opinion is UNPUBLISHED.]
The decision of the state court that Sabillo was not entitled to an instruction about third degree murder was not contrary to or an unreasonable application of federal precedent. Sabillo argues that due process required that he receive a lesser-included instruction, but the Supreme Court has never addressed "whether the Due Process Clause would require the giving of such instructions in a noncapital case." Beck v. Alabama, 447 U.S. 625, 635, 100 S. Ct. 2382, 2389, 65 L. Ed. 2d 392 (1980). The Court has since suggested that it would not extend its reasoning in Beck. See Howell v. Mississippi, 543 U.S. 440, 444-45, 125 S. Ct. 856, 859, 160 L. Ed. 2d 873 (2005) ("The Mississippi Supreme Court . . . holds that [Beck is] inapplicable where the jury has the additional option of life imprisonment--a conclusion that finds some support in our cases, see Hopkins v. Reeves, 524 U.S. 88, 98, 118 S. Ct. 1895, 141 L. Ed. 2d 76 . . . (1998); Schad v. Arizona, 501 U.S. 624, 646, 111 S. Ct. 2491, 115 L. Ed. 2d 555 . . . (1991)." (citation and quotations omitted)).