“Right Too Soon” Study: One in Seven Prisoners Put to Death in U.S. Had Legal Issues that Make Their Executions Unconstitutional

At least one in seven death-row prisoners put to death in the United States since executions resumed in 1977 had legal claims in their cases that would render their executions unconstitutional, a new Cornell University Law School study shows.

The study, Dead Right: A Cautionary Capital Punishment Tale, by Cornell Law School professors Joseph Margulies, John Blume, and Sheri Johnson (pictured, left to right) was published in the Fall 2021 issue of the Columbia Human Rights Law Review. The researchers examined the cases of the 1,534 people who had been put to death in the United States from the resumption of executions in January 1977 through June 30, 2021. They found that at least 228 people executed in the modern era — or an average of more than five death-row prisoners each year — had been put to death despite raising legal claims that the Supreme Court has said would require reversing their convictions or death sentences.

Some of these prisoners were, in the researchers’ terms, “right too soon,” having raised meritorious claims before the Supreme Court had addressed their issue. These included 22 people who were younger than age 18 at the time of the offense who were executed before the Supreme Court limited the death penalty to offenders 18 or older in Roper v. Simmons in 2005. They also included at least 42 people with intellectual disability who were executed before the U.S. Supreme Court struck down the use of capital punishment against those with intellectual disability in Atkins v. Virginia in 2002.

However, most of the prisoners were executed after the Supreme Court had already established the basis for declaring their death sentences unconstitutional. In 170 such cases, the researchers wrote, “the lower courts turned a blind eye to their claims and for years the Supreme Court did nothing to correct them.”

The study identified Texas and Florida as the two worst offenders, writing that capital litigation in those states could not proceed under the presumption “that lower courts will apply Supreme Court precedent in good faith.” In Texas, they found that “at least 108 people were executed after the Supreme Court had already established the relevant basis for relief,” or 1 in every 5.3 executions (18.8%). In Florida, they found, at least 36 death-row prisoners have been executed despite Supreme Court decisions clearly establishing the unconstitutionality of their death sentences. That translates to 36.4% of all Florida executions, or 1 in every 2.75 executions.

“For us,” the authors wrote, “the implication is clear enough: at least when it comes to capital punishment, history teaches that the lower courts cannot be trusted to enforce the law. If the Supreme Court cannot or will not move more quickly to corral them, then it should abandon the fiction that it can create a legally and morally legitimate death penalty.”

The Supreme Court case that both Florida and Texas most frequently flouted was Lockett v. Ohio, the seminal Supreme Court decision that established that sentencer in a capital case must be permitted to consider “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” For years, Florida and Texas narrowly construed Lockett, preventing juries from considering or denying them a mechanism to give effect to various forms of mitigating evidence. The Supreme Court allowed more than 95 prisoners to be executed in Texas under a sentencing scheme that unconstitutionally prevented juries from considering mitigating evidence outside the limited context of three statutorily defined questions and an unconstitutional judicial interpretation of Lockett that required a “causal nexus” between a defendant’s mitigating evidence and the crime itself. Fifteen people were executed in Florida before the Supreme Court, in a unanimous opinion authored by Justice Antonin Scalia, struck down the state’s limitation on evidence juries and judges could consider mitigating to a list of factors enumerated in the state’s death-penalty statute.

Since then, both states adopted unscientific and clinically inappropriate standards of assessing intellectual disability under Atkins — later declared unconstitutional in Hall v. Florida and Moore v. Texas — that continue to lead to the executions of individuals who are constitutionally ineligible for execution because of their intellectual disability. And cases since the study period demonstrate that death-row prisoners across the country continue to face a danger of execution by jurisdictions attempting to evade enforcement of Atkins by refusing to apply Hall and Moore.

On October 21, 2021, Alabama executed Willie B. Smith III, after its state courts rejected his claim of intellectual disability, relying upon the same unconstitutional criteria struck down in Hall and Moore. The U.S. Court of Appeals for the Eleventh Circuit acknowledged that Smith was intellectually disabled under accepted medical definitions of the disorder but refused to apply either Hall or Moore to his case. Smith’s execution, the appeals court wrote, was purely “a matter of timing”: if he had been tried today, he would not be eligible for the death penalty. The U.S. Supreme Court refused to consider the circuit court’s decision.

The Cornell law professors note that “unfortunately, though probably not coincidentally, most recalcitrance arises in states that execute the largest number of people, making the price of failure to vigorously enforce declared rights very high.” The consequence, they write, is that “absent much more vigilant enforcement from the federal courts, especially the Supreme Court, judicial resistance leaves a lot of defendants who have already been determined right, nonetheless, dead.”