Facts & Research

United States Supreme Court

In the 1970s, the U.S. Supreme Court found the application of the death penalty unconstitutional, but allowed executions to resume under revised laws four years later. Today, the Court often faces questions on the constitutionality of particular aspects of the death-penalty system.

Overview

The Supreme Court is the final arbiter of whether the constitution is being followed. States may be more protective of individual rights than required under the federal constitution, but they cannot be less protective. In particular, the Supreme Court is responsible for ensuring that state use of the death penalty adheres to our fundamental rights. Court rulings can involve the methods of execution used, the competency of defense counsel, the selection of juries, the behavior of the prosecution, and many other matters protected by the right to due process.

In the earlier history of the country, the Supreme Court left much of the practice of the death penalty and other punishments to the states’ discretion, rarely ruling on whether any practice should be considered cruel and unusual. In recent decades, the Court has regularly considered multiple capital cases each term. Some of these cases arise from appeals of state rulings involving the U.S. constitution, others are result of federal decisions on both state and federal death penalty matters.

At Issue

The key question for the Supreme Court is whether the death penalty itself continues to be constitutional in light of its rare use and its rejection by large segments of society. Recent revelations about the risks of executing innocent defendants, racial bias in its application, and the lengthy time inmates spend on death row, has led society to rethink its support of the death penalty. Some Justices have called for a comprehensive review of the practice. The make-up of the Court is likely to determine when such a case might be considered and how the Court will rule.

What DPIC Offers

DPIC has summaries of the important death penalty cases decided by the Supreme Court in the modern era. The opinions of individual Justices on the practice of the death penalty in the U.S. are highlighted. Cases that the Court has decided to hear but have not yet been argued are previewed on the website.

News & Developments


News

Dec 05, 2023

Justice Sandra Day O’Connor’s Conflicted Death Penalty Jurisprudence

Justice Sandra Day O’Connor, the first woman to sit on the United States Supreme Court, died at the age of 93 on December 1, 2023. In her 25-year tenure on the Court, Justice O’Connor authored opin­ions in sev­er­al land­mark death penal­ty cas­es, includ­ing deci­sions that upheld the use of the death penal­ty for vul­ner­a­ble groups and peo­ple with dimin­ished cul­pa­bil­i­ty. However, she demon­strat­ed an ear­ly inter­est in improv­ing cap­i­tal defense stan­dards, and in her lat­er years on the Court expressed con­cerns that the coun­try had exe­cut­ed inno­cent peo­ple. Her legislative…

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News

Nov 02, 2023

Under Recent State Legislation, Courts in Ohio and Kentucky Rule Four Men Ineligible for Execution Due to Serious Mental Illness

Though the Supreme Court has ruled that the Constitution for­bids the death penal­ty for a per­son who is insane” at the time of exe­cu­tion, it has nev­er held that the exe­cu­tion of peo­ple with seri­ous men­tal ill­ness is uncon­sti­tu­tion­al. Experts have found that two in five peo­ple exe­cut­ed between 2000 and 2015 had a men­tal ill­ness diag­no­sis such as bipo­lar dis­or­der, schiz­o­phre­nia, or PTSD. Since 2017, at least eleven states have attempt­ed to strength­en pro­tec­tions for vul­ner­a­ble pris­on­ers by intro­duc­ing bills bar­ring the exe­cu­tion of those with seri­ous men­tal illness…

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News

Oct 31, 2023

SCOTUS Denies Review to Texas Prisoner Sentenced to Death with Contested Junk Science

On October 30, 2023, the United States Supreme Court denied Texas death-sen­tenced pris­on­er Brent Brewer’s (pic­tured) peti­tion for cer­tio­rari, clear­ing the way for his sched­uled exe­cu­tion on November 9th. Mr. Brewer’s attor­neys argue that unre­li­able future dan­ger­ous­ness” junk sci­ence tes­ti­mo­ny from a psy­chi­a­trist who nev­er even met Mr. Brewer result­ed in his death sen­tence. Following the Supreme Court’s deci­sion, attor­neys for Mr. Brewer sub­mit­ted a clemen­cy appli­ca­tion, detail­ing the fact that one of his jurors did not want to sen­tence him to death. The appli­ca­tion also details Mr. Brewer’s good…

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News

Oct 13, 2023

New Legal Research Declares Heightened Standards” of Due Process in Capital Cases an Illusion”

In a new law review arti­cle, Professor Anna VanCleave of the University of Connecticut School of Law argues that the height­ened stan­dards” of due process pro­tec­tion for cap­i­tal defen­dants, required under the Eighth Amendment, are in prac­tice no more than a veneer of legit­i­ma­cy and pro­ce­dur­al cau­tion” that fail to vin­di­cate defen­dants’ rights. Professor VanCleave found that in the absence of clear guid­ance from the Supreme Court as to the actu­al mean­ing of height­ened stan­dards,” low­er courts apply the same stan­dards used in non-cap­i­tal crim­i­nal cas­es or even relax rules…

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News

Oct 03, 2023

Analysis Shows Supreme Court’s Changing View of Death Penalty Cases

A recent analy­sis by Bloomberg Law con­clud­ed that death-sen­tenced pris­on­ers have few­er avenues to relief at the Supreme Court than ever before. Bloomberg iden­ti­fied 270 emer­gency requests to stay exe­cu­tions since 2013 and found that the Court agreed to block an exe­cu­tion just 11 times. Since 2020, when the Court shift­ed to a 6 – 3 con­ser­v­a­tive major­i­ty fol­low­ing the death of Justice Ruth Bader Ginsburg and the appoint­ment of Justice Amy Coney Barrett, the Court has grant­ed just two stays of exe­cu­tion. One, for John Henry Ramirez, chal­lenged not the execution…

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News

Aug 24, 2023

Law Reviews: The Capital Shadow Docket and the Death of Judicial Restraint

A recent law review arti­cle crit­i­cizes the U.S. Supreme Court’s use of its shad­ow dock­et’ in cap­i­tal cas­es, par­tic­u­lar­ly in recent years. The Capital Shadow Docket and the Death of Judicial Restraint, by Professor Jenny-Brooke Condon, explains that the Court invokes judi­cial restraint to jus­ti­fy its refusal to sec­ond-guess the cru­el­ty of chal­lenged exe­cu­tion meth­ods or when Justices cite fed­er­al­ism-based ratio­nales for refus­ing to delay state enforce­ment of a death sen­tences … And yet on the Supreme Court’s shad­ow dock­et, the Court’s death penal­ty jurispru­dence is any­thing but restrained.” 

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News

Jul 10, 2023

Oklahoma Attorney General Files SCOTUS Brief in Support of Richard Glossip

On July 5, 2023, Oklahoma Attorney General Gentner Drummond (pic­tured) filed a brief with the U.S. Supreme Court in sup­port of death row pris­on­er Richard Glossip’s peti­tion for a writ of cer­tio­rari. The Innocence Project and six legal schol­ars have also filed briefs in sup­port of Mr. Glossip, while the victim’s fam­i­ly and the Oklahoma District Attorneys Association have filed a brief in opposition.

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