Supreme Court

The Court now con­sis­tent­ly lim­its oppor­tu­ni­ties for pris­on­ers to access the courts; crit­i­cizes appeals as ​“ser­i­al relit­i­ga­tion of final con­vic­tions”; and instructs courts to ​“police care­ful­ly against attempts to use [stays of exe­cu­tion] as tools to inter­pose unjus­ti­fied delay,” warn­ing that “[l]ast-minute stays should be the extreme excep­tion, not the norm.” 

Unsurprisingly, the Court’s new approach has result­ed in an over­all decline in death penal­ty cert grants and opin­ions. In 2024, the Court issued just one opin­ion in a death penal­ty case on its reg­u­lar dock­et. Other than in 2021, when COVID-19 may have influ­enced the Court’s dock­et, this year’s sin­gle opin­ion rep­re­sents a six-year low. In six of the last sev­en years, the Court has issued as many or more ​“shad­ow dock­et” opin­ions — decid­ed with­out oral argu­ment and in some instances, without explanation. 

In 2024, death-sen­­tenced pris­on­ers asked the Court to review con­sti­tu­tion­al claims in their cas­es or grant a stay of exe­cu­tion 148 times. The Court agreed just three times, twice in the same case. On only two occa­sions did state actors ask the Court to hear an appeal — and the Court said yes both times. This year’s sta­tis­tics are sim­i­lar to 2023, when the Court grant­ed only four of 158 pris­on­er requests (2.5%), and two of five state requests (40%). These num­bers also illus­trate the fact that most pris­on­ers lose their appeals in state courts. Since the begin­ning of the 2018 term, the Court has grant­ed just five of 155 pris­on­er requests for a stay of exe­cu­tion (3%) but grant­ed 20 of 22 (91%) state requests to vacate a stay and allow the exe­cu­tion to proceed.

The Court’s recent direc­tives also reveal a pre­oc­cu­pa­tion with obtaining ​“final­i­ty” in cap­i­tal cas­es and a gen­er­al dis­trust of defense lawyers and their clients when they chal­lenge exe­cu­tion war­rants. Paired with its shrink­ing cap­i­tal dock­et, the Court’s new lim­its on fed­er­al review dis­play a strong def­er­ence to state actors and a retreat from the Court’s tra­di­tion­al role as the ​“last resort” for those sen­tenced to death.

Overturning Relief in Ineffective Counsel Cases

The Court took action in two cas­es that involved claims of inef­fec­tive assis­tance of coun­sel, both times at the request of state actors, and both times over­turned grants of relief. 

In Thornell v. Jones, Danny Lee Jones, who was sen­tenced to death in Arizona in 1993, alleged inef­fec­tive assis­tance of coun­sel because his attor­ney failed to present crit­i­cal mit­i­gat­ing evi­dence, secure a defense men­tal health expert, or pur­sue rec­om­mend­ed neu­ro­log­i­cal test­ing of his client. This meant the jury nev­er learned that Mr. Jones had received treat­ment for mood dis­or­ders, had attempt­ed sui­cide, spent time in a men­tal insti­tu­tion, and suf­fered mul­ti­ple neurochemical deficiencies. 

On May 30, the Supreme Court reversed a grant of relief for Mr. Jones at the Ninth Circuit and issued a 6 – 3 opin­ion in favor of Arizona, hold­ing that Mr. Jones did not receive inef­fec­tive assis­tance of coun­sel. In a nar­row fact-spe­­cif­ic rul­ing, Justice Samuel Alito wrote for the major­i­ty that the Ninth Circuit ​“down­played the seri­ous aggra­vat­ing fac­tors present here and over­stat­ed the strength of mit­i­gat­ing evi­dence that dif­fered very lit­tle from the evi­dence pre­sent­ed at sentencing.” 

Joined by Justice Elena Kagan, Justice Sonia Sotomayor dis­sent­ed. She wrote that the ​“record in this case is com­plex, con­test­ed, and thou­sands of pages long,” and it ​“is not the Court’s usu­al prac­tice to adju­di­cate either legal or pred­i­cate fac­tu­al ques­tions in the first instance.” Justice Sotomayor said she would have vacat­ed the rul­ing below and allowed the Ninth Circuit to recon­sid­er the case. Justice Ketanji Brown Jackson also dis­sent­ed, agree­ing that the Supreme Court is ​“not the right tri­bunal to parse the exten­sive fac­tu­al record in this case.” She also wrote that the majority’s argument ​“rings hol­low” because its ​“real cri­tique does not appear to relate to the…methodology.” 

A few weeks after releas­ing its opin­ion in Thornell, the Court grant­ed Alabama’s request for cer­tio­rari in Alabama v. Williams, a case with a long and com­pli­cat­ed pro­ce­dur­al his­to­ry. Mr. Williams had argued that his attor­ney was inef­fec­tive for fail­ing to inves­ti­gate ade­quate­ly and present evi­dence of sex­u­al abuse and trau­ma he suf­fered as a child. After sev­er­al years of pro­ceed­ings, a fed­er­al dis­trict court judge held an evi­den­tiary hear­ing and con­clud­ed that Mr. Williams had been prej­u­diced by his attorney’s fail­ures. A divid­ed pan­el from the Eleventh Circuit affirmed the grant of habeas relief, with the dis­sent argu­ing that the evi­dence would have result­ed in the admis­sion of addi­tion­al aggra­vat­ing evi­dence in sup­port of the death sen­tence. Alabama appealed. 

The cert peti­tion had been close­ly watched and found sup­port from eigh­teen state attor­neys gen­er­al who filed an ami­cus curi­ae brief in sup­port of Alabama. One ques­tion in the case was whether the fed­er­al court could grant relief despite the state courts’ denials of relief. The Eleventh Circuit had held that no def­er­ence was required because the court of appeals’ deci­sion affirm­ing the denial was on juris­dic­tion­al grounds, not ​“on the mer­its.” Amici argued that allow­ing the Eleventh Circuit’s grant of relief to stand would ​“broad­en the scope of the fed­er­al habeas statute by refus­ing def­er­ence to a state appel­late court’s pro­ce­dur­al affir­mance of a tri­al court’s merits opinion.” 

Without issu­ing an opin­ion, the Court sum­mar­i­ly vacat­ed the Eleventh Circuit’s judg­ment for Mr. Williams and remand­ed the case for fur­ther con­sid­er­a­tion in light of its deci­sion in Thornell, which had also involved ques­tions about the effect of the aggra­vat­ing and mit­i­gat­ing evi­dence. But the ulti­mate out­come of the case may also have impor­tant impli­ca­tions for the scope and effect of fed­er­al habeas judg­ments, which Alabama and ami­ci argue improp­er­ly over­ride state court crim­i­­nal-law deter­mi­na­tions and under­mine state sovereignty.

Published Dissents Confirm Court’s Sharp Ideological Divide 

This year again saw sev­er­al jus­tices rou­tine­ly dis­sent from the Court’s denials of cer­tio­rari review. The dis­sent­ing jus­tices focused on seri­ous alle­ga­tions of offi­cial mis­con­duct and expressed frus­tra­tion with the Court’s fail­ure to enforce key precedents. 

At Warren King’s tri­al in Georgia, the pros­e­cu­tor struck 87.5% of Black poten­tial jurors but only 8.8% of white poten­tial jurors. When asked to explain one of the strikes, the pros­e­cu­tor responded that ​“this lady is a black female” — a straight­for­ward vio­la­tion of Batson v. Kentucky (1986) and its prog­e­ny, which bar pros­e­cu­tors from strik­ing jurors based on race or gen­der. The tri­al judge found that the strike was racial­ly moti­vat­ed and placed the woman back on the jury. The prosecutor then ​“erupt­ed into a rant against Batson,” lead­ing the tri­al judge to admon­ish him. Despite this evi­dence of motive and intent, the Georgia Supreme Court found that the prosecutor’s oth­er strikes exclud­ing Black peo­ple were not racial­ly moti­vat­ed, the Eleventh Circuit affirmed, and the Supreme Court denied cert.

Justices Jackson and Sotomayor dis­sent­ed, writ­ing that the Supreme Court should have grant­ed cer­tio­rari and sum­mar­i­ly reversed under Batson. Justice Jackson argued that the Georgia Supreme Court had ​“ignored high­ly salient facts about the prosecutor’s admit­ted­ly dis­crim­i­na­to­ry strike behav­ior and antipa­thy toward the legal stan­dards that address such con­duct.” Importantly to Justice Jackson, this was not an iso­lat­ed inci­dent: the Eleventh Circuit’s fail­ure to recognize error ​“reflects a neglect­ful response to the appar­ent trend of dis­turbing­ly lax Batson enforce­ment on the part of Georgia’s high court.” Justice Jackson cit­ed four times to Flowers v. Mississippi (2019), in which the Court ruled in favor of death-sen­­tenced pris­on­er Curtis Flowers based on an egre­gious his­to­ry of Batson vio­la­tions, to empha­size what she viewed as the Court’s incon­sis­tent treat­ment of these claims. 

When the Court declined to review Dillion Compton’s jury race dis­crim­i­na­tion claims in April, Justices Sotomayor and Jackson dis­sent­ed again. Texas pros­e­cu­tors used thir­teen of their fif­teen peremp­to­ry strikes to remove female prospec­tive jurors at Mr. Compton’s tri­al, and their only expla­na­tion was the women’s views on the death penal­ty. Justice Sotomayor wrote that the Court should have sum­mar­i­ly reversed, because the low­er court’s rea­son­ing had clear­ly disregarded precedent.

In Kurt Michaels’ case, the Ninth Circuit Court of Appeals held that his con­fes­sion was ille­gal­ly obtained and wrong­ly used against him at tri­al. However, the court also held that the error was harm­less and denied Mr. Michaels relief. Justice Jackson dis­sent­ed from the Supreme Court’s refusal to hear Mr. Michael’s appeal, argu­ing that the Ninth Circuit was ​“inat­ten­tive to the unique­ly prej­u­di­cial nature of con­fes­sion evi­dence.” The jury delib­er­at­ed for over three days before return­ing a ver­dict of death — an indi­ca­tion that the jury was strug­gling with its sen­tenc­ing deci­sion and that his con­fes­sion may have tipped the scales. The ​“Fifth Amendment pro­tects every­one, guilty and inno­cent alike,” Justice Jackson argued, and ​“courts must be care­ful to safe­guard the rights that our Constitution pro­tects, even when (and per­haps espe­cial­ly when) eval­u­at­ing errors made in cas­es stem­ming from a terrible crime.” 

A Lack of Reliable Legal Pathways for Innocents

Public aware­ness about the real­i­ty that inno­cent peo­ple are sen­tenced to death has grown steadi­ly in recent years. This year, sev­er­al high-pro­­file cas­es of inno­cence attract­ed unusu­al atten­tion and sup­port­ers, along with intense media cov­er­age. Although the Supreme Court has long main­tained that actu­al inno­cence is not enough on its own to obtain relief from a death sen­tence, the Court’s refusal to inter­vene in sev­er­al promi­nent cas­es this year was still noteworthy. 

On September 24, Missouri exe­cut­ed Marcellus Williams despite a nation­al cam­paign for clemen­cy that attract­ed more than 1.5 mil­lion sup­port­ers on social media. Mr. Williams was con­vict­ed and sen­tenced to death despite a com­plete absence of phys­i­cal evi­dence con­nect­ing him to the crime. Two wit­ness­es, now deceased, had been giv­en finan­cial incen­tives to tes­ti­fy against him at tri­al. The dis­trict attor­ney sup­port­ed a plea deal that would have removed Mr. Williams from death row, but the deal was blocked by the unex­pect­ed inter­ven­tion of the state attor­ney gen­er­al and the Missouri Supreme Court. When Governor Mike Parson denied clemen­cy, Mr. Williams turned to the U.S. Supreme Court as a last resort. But in an unsigned order with no expla­na­tion, the Court declined to halt his exe­cu­tion. Justices Kagan, Sotomayor, and Jackson dissented. 

The Supreme Court also declined to inter­vene in the high-pro­­file case of Robert Roberson, a Texas man sen­tenced to death for alleged­ly killing his two-year-old daugh­ter Nikki under a ​“shak­en baby syn­drome” (SBS) the­o­ry. The SBS the­o­ry has been large­ly debunked by experts and has result­ed in dozens of exon­er­a­tions across the coun­try. Experts now say that pneu­mo­nia, an acci­den­tal fall, and inap­pro­pri­ate med­ical treat­ment like­ly caused Nikki’s symp­toms, con­tra­dict­ing pros­e­cu­tors, who argued at tri­al that they could only have result­ed from abuse. 

Justice Sotomayor’s state­ment expressed dis­may that the Court did not review Mr. Roberson’s case and emphasized that ​“mount­ing evi­dence sug­gests that [Mr. Roberson]…committed no crime at all.” She not­ed the lack of reli­able legal path­ways for death-sen­­tenced pris­on­ers to prove their innocence. ​“Few cas­es more urgent­ly call for such a rem­e­dy than one where the accused has made a seri­ous show­ing of actu­al inno­cence, as Roberson has here,” she wrote. But “[c]urrent post­con­vic­tion reme­dies often fail to correct convictions ​‘secured by what we now know was faulty sci­ence.’” She urged Texas Governor Abbott to issue ​“an exec­u­tive reprieve of thir­ty days” to ​“pre­vent a mis­car­riage of jus­tice from occur­ring: exe­cut­ing a man who has raised cred­i­ble evi­dence of actu­al inno­cence.” Ultimately, it was a Texas leg­isla­tive committee’s last-minute issuance of a sub­poe­na that stayed Mr. Roberson’s exe­cu­tion, not the Court or Governor Abbott.

The Supreme Court’s two pend­ing death penal­ty cas­es both involve inno­cence claims, but the Court’s deci­sions will like­ly turn on pro­ce­dur­al ques­tions. Richard Glossip was con­vict­ed and sen­tenced to death in Oklahoma based on the tes­ti­mo­ny of his cowork­er Justin Sneed, who admit­ted that he alone had killed their boss in 1997 but alleged that Mr. Glossip had hired him to do it. Evidence lat­er emerged that pros­e­cu­tors had offered lenien­cy to Mr. Sneed if he impli­cat­ed Mr. Glossip and hid­den evi­dence that Mr. Sneed was being treat­ed for bipo­lar dis­or­der. After an inde­pen­dent inves­ti­ga­tion, Oklahoma Attorney General Gentner Drummond con­fessed error and sup­port­ed Mr. Glossip’s bid for a new tri­al. When the Oklahoma courts refused to do so and set Mr. Glossip’s exe­cu­tion, Attorney General Drummond filed a peti­tion in sup­port of Mr. Glossip at the Supreme Court. State offi­cials rarely con­cede error in death penal­ty cas­es, and this is the first known Supreme Court case in which a state attor­ney gen­er­al has filed in sup­port of a death-sen­­tenced pris­on­er. Attorney General Drummond’s unprece­dent­ed sup­port for Mr. Glossip was like­ly an impor­tant rea­son the Court decid­ed to take the case. 

The Court heard oral argu­ments on October 9, focus­ing on a juris­dic­tion­al ques­tion the Court itself added when it grant­ed cer­tio­rari and the cen­tral ques­tion regard­ing the impor­tance of the pros­e­cu­to­r­i­al mis­con­duct in the case. Justice Neil Gorsuch recused him­self because he had heard an ear­li­er appeal when he was a cir­cuit judge, mean­ing that Mr. Glossip will need at least five votes to pre­vail. A 4 – 4 deci­sion will mean that the deci­sion of the Oklahoma courts deny­ing relief to Mr. Glossip will stand. 

On the last day of its 2023 – 24 term, which con­clud­ed in ear­ly October, the Court grant­ed cer­tio­rari to Ruben Gutierrez, who received a stay from the Court in July just twen­ty min­utes before his sched­uled exe­cu­tion. This was the only stay grant­ed to a death-sen­­tenced pris­on­er in 2024 out of 26 requests. The Court will review a com­plex claim involv­ing Mr. Gutierrez’s stand­ing to sue the state of Texas for access to DNA test­ing on crime scene evi­dence he argues could affect his con­vic­tion and death sen­tence. Texas courts have refused him access to the test­ing despite numer­ous requests, a stance incon­sis­tent with the Supreme Court’s 2023 deci­sion in Reed v. Goertz. 

Court Declines Invitation to Consider New Eighth Amendment Standard — For Now

On November 4, the Court end­ed a year of inde­ci­sion regard­ing Alabama’s request to review a prisoner’s intel­lec­tu­al dis­abil­i­ty claim by issu­ing a two-page rul­ing and request­ing addi­tion­al infor­ma­tion from the low­er court. Joseph Clifton Smith, sen­tenced to death in 1998, had received five IQ scores rang­ing from 72 to 78, and experts found that his IQ could be as low as 69 based on sta­tis­ti­cal adjust­ments. A score of 70 or below is con­sid­ered by experts to be a strong indi­ca­tor of intel­lec­tu­al dis­abil­i­ty. A dis­trict court grant­ed relief to Mr. Smith based on his IQ scores and adap­tive deficits, and the Eleventh Circuit Court of Appeals affirmed. 

The Supreme Court held that the Eleventh Circuit’s approach to eval­u­at­ing mul­ti­ple IQ scores was ​“unclear” and asked it to clar­i­fy whether the low­er end of the esti­mat­ed IQ range was ​“dis­pos­i­tive” in deter­min­ing intel­lec­tu­al dis­abil­i­ty, or whether courts should use ​“a more holis­tic approach to mul­ti­ple IQ scores that con­sid­ers the rel­e­vant evi­dence.” The Court not­ed that its ​“ulti­mate assess­ment of any peti­tion for cer­tio­rari by the State may depend on the basis for the Eleventh Circuit’s deci­sion.” Justices Thomas and Gorsuch not­ed that they would have grant­ed cer­tio­rari and set the case for oral argument. 

The case, Hamm v. Smith, set a Supreme Court record as the case dis­trib­uted for con­fer­ence the most times before a deci­sion. The jus­tices sched­uled it thir­ty times over four­teen months before issu­ing a per curi­am rul­ing and remand. Few cas­es are ever dis­trib­uted for con­fer­ence more than once. 

One like­ly rea­son for the Court’s lengthy inde­ci­sion was the case’s pos­si­ble threat to a key Eighth Amendment doc­trine: that courts eval­u­ate the meaning of ​“cru­el and unusu­al pun­ish­ments” by looking to ​“evolv­ing stan­dards of decen­cy that mark the progress of a matur­ing soci­ety.” The Supreme Court has used this test in almost 70 years of jurispru­dence, includ­ing land­mark rul­ings that restrained use of the death penal­ty against juve­niles, peo­ple with intel­lec­tu­al dis­abil­i­ty, peo­ple who are not men­tal­ly com­pe­tent at the time of exe­cu­tion, and peo­ple who com­mit non-homi­­cide crimes. A group of 14 state attor­neys gen­er­al filed an ami­cus brief in Hamm v. Smith argu­ing that the Court should aban­don the test and instead ​“ground its Eighth Amendment jurispru­dence in the Constitution’s test, his­to­ry, and struc­ture.” If the Court agreed to this approach, it would no longer con­sid­er cur­rent soci­etal views and atti­tudes as rel­e­vant and would instead look to how pun­ish­ment was viewed at the time the Constitution was rat­i­fied in 1789.¹ 

Although the Court’s sum­ma­ry rul­ing in Hamm did not mention the ​“evolv­ing stan­dards of decen­cy” test, sev­er­al jus­tices have sig­naled in the past that they believe an ​“orig­i­nal­ist” inter­pre­ta­tion is the cor­rect approach to Eighth Amendment challenges. 

Ten days after the rul­ing, the Eleventh Circuit respond­ed to the Court with a brief new opin­ion clar­i­fy­ing that it used a ​“holis­tic approach” when eval­u­at­ing Mr. Smith’s IQ scores. ​“We unam­bigu­ous­ly reject any sug­ges­tion that a court may ever con­clude that a cap­i­tal defen­dant suf­fers from sig­nif­i­cant­ly sub­av­er­age intel­lec­tu­al func­tion based sole­ly on the…lower end of the stan­­dard-error range for his low­est of mul­ti­ple IQ scores,” the court wrote.