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
Aug 05, 2021
Presidential Commission Hears Recommendations for Reforms to Supreme Court’s Death-Penalty Practices

Legal reform advocates and a committee of high-profile Supreme Court practitioners have urged the Presidential Commission on the Supreme Court of the United States to recommend changes in the way the Court handles emergency applications for stays of executions in death-penalty cases.
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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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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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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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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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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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Oct 02, 2023
Supreme Court Denies Certiorari to Two Death-Sentenced Men with Credible Innocence Claims
On October 2, the first day of its new term, the Supreme Court denied review in two high-profile death penalty cases: Toforest Johnson and Robert Roberson. Both men have long maintained their innocence and have garnered broad bipartisan support for their innocence claims.
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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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Jul 26, 2023
NEW RESOURCES: Capital Punishment and the State of Criminal Justice 2023
The American Bar Association’s Criminal Justice Section has announced its forthcoming annual report, The State of Criminal Justice 2023, examining the state of the American criminal legal system.
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Jul 12, 2023
Doug Evans, the District Attorney Who Prosecuted Curtis Flowers Six Times, Retires
Doug Evans, the District Attorney who tried death row exoneree Curtis Flowers for murder six times, is retiring. Mr. Flowers received four death sentences, but each conviction was overturned when courts found that Evans had illegally excluded Black jurors from the jury pool.
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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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