Defendants Begin Systemic Challenges to Constitutionality of Death Penalty

Lawyers for cap­i­tal defen­dants and death row inmates across the coun­try have begun to respond to what lawyers in one fed­er­al case described as the ​“clar­i­on call for recon­sid­er­a­tion of the con­sti­tu­tion­al­i­ty of the death penal­ty” issued by Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg in their dis­sent­ing opin­ion in June in Glossip v. Gross.

Systemic chal­lenges to the death penal­ty have been filed in a Vermont fed­er­al court and a Utah state tri­al court seek­ing hear­ings to present evi­dence that the death penal­ty is admin­is­tered in a sys­tem­i­cal­ly cru­el and unusu­al man­ner. A Pennsylvania defen­dant has like­wise filed a peti­tion in the U.S. Supreme Court seek­ing review of her claim that the death penal­ty is unconstitutionally arbitrary. 

Attorneys for Brandon Perry Smith allege that while their client and a very small num­ber of oth­er defen­dants face the death penal­ty for poten­tial­ly cap­i­tal crimes, approx­i­mate­ly 150 Utah inmates received life sen­tences for sim­i­lar offens­es. They seek to depose all 29 of Utah’s coun­ty attor­neys to learn why pros­e­cu­tors choose to seek the death penal­ty in cer­tain cas­es but not oth­ers. Gary Pendleton and Mary Corporan, Smith’s attor­neys, wrote, ​“The infir­mi­ty of Utah’s present scheme is appar­ent. The exer­cise of pros­e­cu­to­r­i­al dis­cre­tion becomes arbi­trary and capri­cious by def­i­n­i­tion when the law estab­lish­es no basis for deter­min­ing when a death-eli­gi­ble mur­der, as defined by statute, is charged as a cap­i­tal offense and when it is charged as a noncapital homicide.” 

Citing the Glossip dis­sent, lawyers in the fed­er­al tri­al of Donald Fell in Vermont argue that the fed­er­al death penal­ty is uncon­sti­tu­tion­al because it is unre­li­able, arbi­trary, and dis­crim­i­na­to­ri­ly applied. They write that ​“Most places with­in the United States have aban­doned its use under evolv­ing stan­dards of decen­cy,” and high­light evi­dence of sig­nif­i­cant racial and geo­graph­ic inequities in the use of the fed­er­al death penal­ty, includ­ing that it is over­whelm­ing­ly imposed in a small num­ber of states that are also dis­pro­por­tion­ate­ly respon­si­ble for state death sentences. 

In Walter v. Pennsylvania, death-row pris­on­er Shonda Walter argues that the assump­tions under­ly­ing the Supreme Court’s rein­sti­tu­tion of the death penal­ty in the 1970s ​“have proved wrong, flawed, or illu­so­ry.” She has asked the Supreme Court to review her claim that American ​“stan­dards of decen­cy have evolved to the point where the [death penal­ty] is no longer constitutionally sustainable.” 

The state court judge in the Utah case has char­ac­ter­ized Smith’s claim as one of ​“selec­tive pros­e­cu­tion” and has issued an order requir­ing his attor­neys to pro­vide ​“cred­i­ble evi­dence” of selec­tive pros­e­cu­tion before they can ques­tion pros­e­cu­tors. Prosecutors have not yet respond­ed to the plead­ings in the Fell and Walter cases.