United States Supreme Court

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…

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…

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 9^th. 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…

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…

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…

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.

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.” 

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. 

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.

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.