U.S. Supreme Court

Death-Penalty Experts Describe Justice Kennedy's Mixed Legacy on Capital Punishment

Justice Anthony Kennedy's votes swung both to the right and to the left on death-penalty issues, professors Carol Steiker (pictured, l.) of Harvard Law School and her brother, Jordan Steiker (pictured, r.) of the University of Texas School of Law write in a commentary for SCOTUSblog, "but [he] declined to swing for the fences." The Steikers, who co-authored the acclaimed book, Courting Death: The Supreme Court and Capital Punishment, recount Justice Kennedy's nuanced interpretation of the Eighth Amendment and his mixed legacy as a swing vote on capital punishment. Though he was "a frequent supporter of restrictions on the availability of federal habeas review of capital cases, a skeptic of claims challenging the constitutionality of lethal injection and a relatively reliable vote against granting stays of execution in end-stage capital litigation," they write, he also was "the author of numerous opinions that broke new ground in the court’s Eighth Amendment jurisprudence." Most notably, he joined or authored landmark decisions that narrowed the scope of the death penalty, exempting defendants with intellectual disability, juvenile offenders, and those who committed non-homicide crimes. Those decisions on the Court's "proportionality doctrine" had systemic impact on the administration of the death penalty nationwide and paved the way for later decisions banning the use of mandatory life-without-parole sentences for juveniles. However, Justice Kennedy was content to grapple with the constitutionality of individual death-penalty practices one at a time, rather than addressing the constitutionality of capital punishment as a whole. Kennedy's role as a swing vote is illustrated by his change of heart on guarantees of individualized sentencing. In his early days on the Court, he voted to restrict defendants' rights to the consideration of mitigating evidence that could spare their lives, but nearly 20 years later, as the Court as a whole moved ideologically to the right, he shifted leftwards and joined majority opinions that broadly protected the rights to present and have capital sentencers meaningfully consider that evidence. In 1989, he provided the fifth vote in Stanford v. Kentucky to permit the use of the death penalty against offenders aged sixteen and seventeen. By 2005, citing an evolution of values in the United States, he authored the Court's 5-4 decision in Roper v. Simmons banning the death penalty for offenders under age eighteen. In 2015, Kennedy started an important discussion of the conditions of incarceration on death row, raising questions about the effects of long-term solitary confinement. Justice Stephen Breyer drew on Kennedy's concerns in his dissent in Glossip v. Gross, questioning the constitutionality of capital punishment.

In Two Mississippi Cases, Justice Breyer Renews Call to Review Constitutionality of Death Penalty

As its 2017-2018 term came to a close, the U.S. Supreme Court declined to review two Mississippi cases that presented significant challenges to capital punishment as implemented in that state and across the country. Over the dissent of Justice Stephen Breyer (pictured), who renewed his call for the Court to review the constitutionality of the death penalty as a whole, the Court on June 29 denied certiorari in the cases of Timothy Evans and Richard Jordan. Reiterating concerns he first voiced in his landmark dissent three years ago in Glossip v. Gross (2015), Justice Breyer wrote: “the death penalty, as currently administered, suffers from unconscionably long  delays, arbitrary application, and serious unreliability.” Two Mississippi cases, he wrote, illustrate the first two of those factors. Evans and Jordan were both sentenced to death in Mississippi’s Second Judicial District, which—according to death sentencing data maintained by Mississippi’s Office of the State Public Defender—has imposed more death sentences than any of the 21 other judicial districts in the state and nearly 1/3 of all the death sentences imposed in the state this century. Evans’s petition for writ of certiorari had argued that his death sentence was unconstitutionally arbitrary because of the geographic disproportionality in the way in which the death penalty was imposed and carried out across the state. Jordan had asked the Court to review the constitutionality of his more than forty-year tenure on Mississippi’s death row for a crime committed in 1976. Jordan’s death sentence was overturned three separate times because of different constitutional violations in each of his sentencing trials. In 1991, after his sentence had been overturned for the third time, a special prosecutor agreed that Jordan should be sentenced to life without parole. However, the Mississippi Supreme Court vacated the life sentence saying the sentence was invalid because it had not been authorized by Mississippi law in effect at the time of the murder. The state then sought and obtained the death penalty against Jordan for a fourth time. “Jordan has lived more than half of his life on death row,” Breyer wrote, living most of that time “in isolated, squalid conditions.” Breyer said the cruelty of the conditions of Jordan’s imprisonment constitute an “additional punishment” that warrants review by the Court to address whether the lengthy delay, in and of itself, violates the Eighth Amendment. The geographically arbitrary death-sentencing practices in the Second District also warranted review, Breyer wrote. “This geographic concentration reflects a nationwide trend. Death sentences, while declining in number, have become increasingly concentrated in an ever-smaller number of counties,” he wrote. This arbitrariness, Justice Breyer explained, “is aggravated by the fact that definitions of death eligibility vary depending on the state.” As a result, in Mississippi, unlike most states, a defendant may be sentenced to death for a felony robbery-murder, which does not require that the defendant actually intended to kill someone. Justice Breyer also found evidence in Mississippi that the death penalty was not reliably administered. He noted that just “[f]our hours before Willie Manning was slated to die by lethal injection, the Mississippi Supreme Court stayed his execution,” and in April 2015, Manning became the fourth Mississippi death-row prisoner to be exonerated. With six more death-row prisoners exonerated throughout the U.S. since January 2017, the unreliability of the death penalty, Justice Breyer argued, provides a third reason for the Court to review the constitutionality of capital punishment. “[M]any of the capital cases that come before this court,” Justice Breyer wrote, “involve, like the cases of Richard Jordan and Timothy Evans, special problems of cruelty or arbitrariness. Hence, I remain of the view that the court should grant the petitions now before us to consider whether the death penalty as currently administered violates the Constitution’s Eighth Amendment.” 

Supreme Court Justice Anthony Kennedy, Author of Key Death-Penalty Decisions, Retires

Justice Anthony Kennedy (pictured) announced on June 27, 2018, that he will retire from the U.S. Supreme Court. During Kennedy’s thirty years on the Court, he became known as a swing vote, siding with both the conservative and liberal wings of the Court. His role as the Court's swing vote extended to some crucial death-penalty cases, including Roper v. Simmons (2005), in which the justices struck down the death penalty for juvenile offenders under age 18, and Kennedy v. Louisiana (2008), in which the justices barred the death penalty for child rape and other offenses that did not result in death. He also provided the decisive fifth vote against a challenge to lethal-injection practices brought by Oklahoma death-row prisoners in Glossip v. Gross. In his opinion for the five-member majority in the Kennedy case, Justice Kennedy wrote: “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint. For these reasons we have explained that capital punishment must ‘be limited to those offenders who commit a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’” Justice Kennedy was a leading architect of caselaw decided under the Eighth Amendment’s “evolving standards of decency.” Under that doctrine, the Court looked to various measures of contemporary American values to determine whether a national consensus had evolved against a penal practice. Justice Kennedy authored numerous decisions for the Court applying or interpreting that doctrine, including Roper and Kennedy, as well as 5-4 decisions that struck down statutes or practices that risked execution of defendants with intellectual disability (Hall v. Florida (2014)) or would have permitted the execution of individuals whose extreme mental illness caused them to become mentally incompetent after having been sentenced to death (Panetti v. Quarterman). In declaring unconstitutional Florida’s use of a strict IQ threshold in determining whether defendants were intellectually disabled and therefore ineligible for the death penalty, Justice Kennedy wrote: “The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitu­tion protects.” Vann R. Newkirk II, writing about Kennedy's civil rights legacy in The Atlantic, said, “The Eighth Amendment has been invoked often by Kennedy and the four liberal justices as a legal weapon in the nation’s highest court in order to curb the most draconian impulses of the criminal-justice system.” In his resignation letter to the President, Justice Kennedy wrote, “Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret and defend the Constitution and the laws that must always conform to its mandates and promises.”

Louisiana Prisoner Alleges Prosecutor Got Death Verdict By Coercing Witness, Presenting Fabricated Testimony

Michael Wearry, a Louisiana prisoner whose conviction and death sentence were overturned by the U.S Supreme Court in 2016 because prosecutors withheld exculpatory evidence, has filed suit against Livingston Parish District Attorney Scott Perriloux (pictured) and former Sheriff's Deputy Marlon Kearney Foster based upon new evidence that they deliberately fabricated testimony against him. Wearry's complaint charges that the Louisiana officials "knowingly and deliberately fabricated" testimony from a troubled adolescent, Jeffery Ashton and coerced Ashton "to falsely implicate Wearry in the homicide of Eric Walber." The lawsuit says Wearry first learned that Perriloux and Foster had fabricated Ashton's testimony during the course of preparing for Wearry's re-trial, when his defense team located and interviewed Ashton and "Ashton told Wearry’s lawyers about the falsification of his witness accounts." Wearry was convicted and sentenced to death in 2002, although no physical evidence linked him to the murder. His alibi witnesses testified that he was at wedding reception 40 miles away in Baton Rouge at the time of the murder. The U.S. Supreme Court has described the case against Wearry as "a house of cards." The prosecution case relied heavily on the testimony of Sam Scott, a jailhouse informant, whose story changed so dramatically over the course of four different statements that, according to the Supreme Court, by the time of trial "his story bore little resemblance to his original account." Police records that prosecutors withheld from the defense at trial revealed that Scott had may have had a personal vendetta against Wearry, having told another prisoner he wanted to "make sure [Wearry] gets the needle cause he jacked over me." Prosecutors also failed to disclose that they had offered another witness a reduced sentence for an unrelated conviction in exchange for his testimony against Wearry, and then lied to the jury that the witness had "no deal on the table." Wearry's lawsuit concerns allegations of misconduct involving the testimony of Jeffrey Ashton, who was ten years old at the time of the murder and fourteen when he testified at Wearry's trial that he had seen Wearry throw the victim's cologne bottle into a ditch and get into the victim's car. He now says he was attending a festival on the night of the murder and had never seen Wearry before the trial. "Ashton was subject to juvenile court proceedings at the time, and was vulnerable to intimidation by authorities such as Perrilloux and Foster," the lawsuit says. In an affidavit, Ashton says he was "forced" to provide false testimony. "I went along with it because I was just ten years old. I was scared," he said. Jim Craig, Wearry's attorney, called the alleged misconduct "very disturbing," and said, "[t]he abuse of power by District Attorney Perrilloux and Mr. Foster is an outrage that should disturb anyone who believes in justice." He added that he believes the case may have implications for other cases handled by Perriloux, saying, "I think the integrity of this and other cases in that district is at stake and we expect this to be a very hard fought case. We are confident that what we have filed is correct and truthful." District Attorney Perrilloux called the allegations that he coerced testimony from Ashton "ridiculous."

“Outlier” Texas Court of Criminal Appeals Upholds Bobby James Moore's Death Sentence

In a ruling three dissenters criticized as an "outlier," and after having been rebuked by the U.S. Supreme Court in 2017 for ignoring the medical consensus defining intellectual disability, a sharply divided (5-3) Texas Court of Criminal Appeals (CCA) has upheld the death sentence imposed on Bobby James Moore (pictured) 38 years ago. On June 6, 2018, the CCA ruled that Bobby Moore is not intellectually disabled under the most recent clinical definition of the disability and may be executed, despite a finding by a trial court judge, a concession from the Harris County District Attorney's office, and briefs from numerous professional associations and disability advocates all concluding that Moore meets the diagnostic criteria for intellectual disability. Harris County prosecutors had filed a brief with the CCA, stating, "[a] review of the Supreme Court's decision and the record before this Court supports but a single conclusion: Bobby James Moore is intellectually disabled under current medical standards and ineligible for execution." In a forceful dissent, Judge Elsa Alcala, joined by Judges Bert Richardson and Scott Walker, catalogued the numerous groups that had concluded Moore satisfied the medical criteria for intellectual disability and wrote: "There is only one outlier in this group that concludes that applicant is ineligible for execution due to his intellectual disability, but unfortunately for applicant, at this juncture, it is the only one that matters. Today, in solitude, a majority of this Court holds that applicant is not intellectually disabled, and it denies his application for habeas relief." Moore initially presented his claim that he is intellectually disabled and therefore ineligible for the death penalty under the 2002 U.S. Supreme Court ruling Atkins v. Virginia to a Harris County trial court. After making credibility determinations about the lay and expert testimony it heard, that court agreed that Moore had intellectual disability as defined by contemporary medical diagnostic criteria. However, the CCA reversed, applying an idiosyncratic set of criteria known as "Briseño factors" (named after the Texas court decision that announced them), which were based on unscientific stereotypes, including the behavior of a fictional character from Of Mice and Men. Last year, in Moore v. Texas, the U.S. Supreme Court unanimously struck down Texas' use of that criteria, saying that a court's intellectual disability determination must be "informed by the medical community’s diagnostic framework." The Court criticized the manner in which the CCA assessed Moore's significant deficits in adaptive functioning, saying the CCA had improperly focused on the adaptive skills Moore possessed, rather than the clinically required assessment of his areas of diminished functioning. It also said the CCA had improperly based its judgment on Moore's adaptive deficits on how he was able to function in the highly regimented prison setting. The dissent emphasized that the majority again gave improper consideration to these factors in reaching its conclusion that Moore was not intellectually disabled, and said the court had misapplied current medical standards and failed to defer to the trial court's credibility rulings. As a result, the dissent said, the CCA "essentially continues to determine that mildly intellectually disabled people are subject to the death penalty in contravention of the Supreme Court’s holding in Moore."

Supreme Court Asked to Review Constitutionality of Death Sentence Grounded in Anti-Gay Stereotypes

A gay man on death row in South Dakota has asked the U.S. Supreme Court to review his case and to rule that it is unconstitutional for jurors to impose the death penalty based upon anti-gay animus and stereotypes. Charles Rhines (pictured) argues that South Dakota’s courts improperly refused to consider evidence—including an affidavit from one of his jurors that the jury “knew that he was a homosexual and thought that he shouldn’t be able to spend his life with men in prison”—showing that jurors in his case improperly based their death verdict on his sexual orientation. In 2017, in Buck v. Davis, U.S. Supreme Court Chief Justice Roberts wrote that “Our law punishes people for what they do, not who they are.” The Court said that a death sentence based on race would be “a disturbing departure from [that] basic premise of our criminal justice system” and ruled that Buck’s lawyer had been ineffective for presenting a witness whose testimony led to a death verdict based on “a noxious strain of racial prejudice.” The same year, the Court held in Peña-Rodriguez v. Colorado that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule [under a state rule of evidence] give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” Rhines’ petition asks the Court to rule that states may not refuse to consider evidence of juror animus based on sexual orientation and to declare that death sentences based upon prejudicial homophobic stereotypes are unconstitutional. An affidavit submitted by one of the jurors in Rhines’ case said that there had been “lots of discussion of homosexuality” during deliberations and “a lot of disgust.” While they were deliberating, jurors asked the court whether Rhines would be allowed to “mix with the general inmate population,” “create a group of followers or admirers,” “brag about his crime to other inmates, especially new and[/]or young men,” “marry or have conjugal visits,” or “have a cellmate.” According to an affidavit, one juror advocated against incarcerating Rhines with other men for life imprisonment without parole because it “would be sending him where he wants to go.” Quoting Buck, Rhines’ lawyers wrote, “To allow a juror to vote for a man’s death sentence on the basis of anti-gay animus and stereotypes unquestionably violates the Sixth and Fourteenth Amendments, along with the foundational principle that ‘[o]ur law punishes people for what they do, not who they are. Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle.’” South Dakota opposes Rhines’ request, arguing that the constitutional principles that prohibit inquiring into jury sentencing based on racial bias do not apply to “bias based on gender, alienage, or sexual orientation. ... No politician has ever proposed constructing a wall to keep homosexuals out of the country,” the state’s brief says. “No civil war has been fought over [sexual orientation]. No nationwide pogrom has been perpetrated for the enslavement or eradication of homosexuals.” The Court has scheduled a conference for June 14 on whether to review Rhines’ case. [UPDATE: On June 18, 2018, the U.S. Supreme Court denied Rhines’s petition for writ of certiorari, declining to review his case.]

Justice Sotomayor Criticizes Supreme Court For Failing to Intervene in Texas Death-Row Prisoner’s Case

Over a strong dissent by Justice Sonia Sotomayor (pictured), the United States Supreme Court on June 4 declined to review the case of Texas condemned prisoner Carlos Trevino, who had argued that his lawyer was ineffective for failing to investigate and present mitigating evidence of Trevino’s brain damage and developmental delays from his extensive prenatal exposure to alcohol. Having failed to investigate, Trevino's lawyer presented only a single witness whom he met for the first time the day of the sentencing hearing. That witness, the defendant’s aunt, provided cursory testimony that Trevino was a high school drop out with an alcoholic mother who was on welfare. The Court’s denial of review let stand a split 2-1 decision of the U.S. Court of Appeals for the Fifth Circuit, which found counsel’s failure to present the fetal-alcohol-related evidence had not been not prejudicial because the “double-edged” character of the evidence could have led the jury to believe that Trevino would pose a continuing threat to society. Penning her sixth dissent this term in a death-penalty case the Court had declined to review, Justice Sotomayor—joined by Justice Ruth Bader Ginsburg—called the circuit court's decision “flagrant error.” The Court, she wrote, has “long recognized that a court cannot simply conclude that new evidence in aggravation cancels out new evidence in mitigation.” In May 2013, the Supreme Court had reversed a prior ruling of the Fifth Circuit that had refused to review Trevino’s ineffectiveness claim, and remanded his case to the lower federal court to review the issue. After being presented new mitigating evidence that Trevino had fetal alcohol spectrum disorder caused by his mother drinking 18 to 24 cans of beer daily while pregnant, that he weighed 4 pounds at birth, and that his developmental delays (including wearing diapers until he was 8 years old) and cognitive impairments left him functioning at the level of a person with intellectual disability, the circuit court rejected Trevino’s claim. That court dismissed the mitigating value of the evidence, writing that Trevino’s impairments had contributed to his violent history. Justice Sotomayor wrote that, while Trevino had a past history of violence, the prosecution had already presented that evidence at trial, and the new evidence relating to Trevino’s fetal alcohol spectrum disorder—which the sentencing jury had never heard—was important in contextualizing that behavior. A failure to intervene in this case, Sotomayor said, leaves Trevino “subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered.’ The Court's refusal to intervene is even more “indefensible” in this case, she wrote, because it “sanctions the taking of a life by the state.”

Supreme Court to Review Native American's Conviction and Death Sentence for Murder on Indian Lands

The U.S. Supreme Court has agreed to review a federal appeals court decision vacating the conviction of Patrick Dwayne Murphy (pictured), a Native-American prisoner sentenced to death in Oklahoma state court for a murder he argues could only be prosecuted by the federal government. On May 21, 2018, the Court granted Oklahoma’s petition to review an August 2017 decision by the U.S Court of Appeals for the Tenth Circuit ruling that Murphy—a member of the Muscogee (Creek) Nation—should not have been tried in state courts because the killing occurred within the borders of the Creek Reservation, which the court found to be “Indian country.” Under the federal Major Crimes Act, certain enumerated crimes, including murder, are subject to exclusive federal jurisdiction if committed in Indian country by or against an Indian. A unanimous three-judge panel of the appeals court sided with Murphy and Native American friend-of-the-court advocates who argued that the boundaries of the Creek Reservation—which spans eleven counties across Oklahoma, including most of Tulsa—were established in an 1866 treaty between the U.S. and the Creek Nation and that Congress has never disestablished them. In their petition to the Court, state prosecutors challenged the circuit court's ruling that found that the 1866 treaty between the U.S. and the Creek Nation remains intact, claiming that the decision “threatens to resurrect Oklahoma’s pre-statehood status.” Murphy’s brief opposing the State’s petition argues that, while the State of Oklahoma has long “asserted absolute criminal and civil jurisdiction” over these lands, it has done so “in defiance of Congress’s statutes, in furtherance of one of this country’s most shameful episodes of plunder and exploitation.” The land in question in the case has long been claimed by the Muscogee (Creek) Nation. Kevin Dellinger, attorney general for the Muscogee (Creek) Nation, said that they “welcome the chance for the United States Supreme Court to affirm the Muscogee (Creek) Nation’s sovereign territorial boundaries as established in our 1866 treaty with the United States.” The Tenth Circuit “found clear confirmation that Congress deliberately preserved the Muscogee (Creek) Nation reservation,” he said. “Unable to dispute the clear historical record and the law, the state of Oklahoma has asked the Supreme Court to read into facts that simply do not exist and/or to change the well established applicable law.” The Supreme Court will hear argument in the case in the Fall. Justice Gorsuch, who previously served as a judge on the Tenth Circuit, took no part in the decision to review the case.

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