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.” 

(Emily Wagster Pettus, US Supreme Court Rejects 2 Mississippi Death Row Appeals, Associated Press, June 28, 2018; Marcia Coyle, US Supreme Court Turns Down Challenges to Death Penalty, National Law Journal, June 28, 2018.) Read Justice Breyer’s dis­sent here. See U.S. Supreme Court.

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