Supreme Court Roundup: Justices Hear Oral Arguments on Ineffective Assistance of Counsel, Cruel and Unusual Punishment; Defend Positions on Stays

Justices Debate How Courts Should Assess Aggravating and Mitigating Factors in Capital Cases on Appeal 

On April 17, the Supreme Court heard oral argu­ments in Thornell v. Jones, a case impli­cat­ing the test for inef­fec­tive assis­tance of coun­sel — and the first and only oral argu­ment in a death penal­ty case sched­uled this term. Arizona appealed the Ninth Circuit’s deci­sion vacat­ing the death sen­tence of Danny Lee Jones, which found that Mr. Jones was prej­u­diced by his attorney’s fail­ure to present key mit­i­gat­ing evi­dence as to Mr. Jones’ brain dam­age, child­hood phys­i­cal and sex­u­al abuse, and psy­chi­atric prob­lems. The case marks the sec­ond time the Supreme Court has con­sid­ered a Ninth Circuit rul­ing on inef­fec­tive assis­tance of coun­sel in Mr. Jones’ case; the Court sum­mar­i­ly over­turned the Ninth Circuit’s 2011 deci­sion in his favor. (See DPIC’s ear­li­er report­ing on the case.)

Under Strickland v. Washington (1984), an attor­ney is inef­fec­tive when 1) his per­for­mance is defi­cient, and 2) the defi­cient per­for­mance prej­u­dices the defen­dant. When an attor­ney fails to present cer­tain evi­dence, a court weighs the new evi­dence along­side the aggra­vat­ing and mit­i­gat­ing fac­tors present in the case and asks whether there is a ​“rea­son­able prob­a­bil­i­ty” that the out­come might have been dif­fer­ent if the attor­ney had pre­sent­ed the new evi­dence at tri­al. All par­ties in this case agreed on the first prong — that Mr. Jones’ attor­ney, Lee Novak, per­formed defi­cient­ly at tri­al — but the oral argu­ments focused on whether the appel­late courts prop­er­ly weighed the fac­tors when determining prejudice.

At oral argu­ment, all the jus­tices appeared to agree with Arizona that the Ninth Circuit did not prop­er­ly account for the aggra­vat­ing fac­tors when it con­sid­ered the new evi­dence of Mr. Jones’ trau­mat­ic life expe­ri­ences and men­tal dis­or­ders. ​“The cir­cuit court did lay forth the fact that it should bal­ance aggra­vat­ing and mit­i­gat­ing, but I accept that it real­ly didn’t do that,” Justice Sonia Sotomayor said ear­ly in the ques­tion­ing. Justice Elena Kagan lat­er said that the Ninth Circuit ​“com­plete­ly ignores all the aggra­vat­ing evi­dence” and ​“has to look at the good and the bad.” The jus­tices also dis­cussed whether, in addi­tion to the Ninth Circuit, the fed­er­al dis­trict court that con­duct­ed the evi­den­tiary hear­ing weighed the fac­tors prop­er­ly. The dis­trict court found no prej­u­dice against Mr. Jones. Justice Kagan said that the dis­trict court may have ​“mis­un­der­stood its role”; instead of weigh­ing the evi­dence based on a ​“rea­son­able prob­a­bil­i­ty” of a dif­fer­ent out­come, it ​“seemed to think that it was the factfind­er” and made new con­clu­sions about the qual­i­ty of evi­dence before impos­ing what appeared to be a higher standard.

Some mem­bers of the Court have increas­ing­ly leaned on the con­cept of ​“final­i­ty” as ratio­nale in recent deci­sions, and the issue arose again at this oral argu­ment. While Mr. Jones asked that, in the event of a loss, the Court vacate and remand the case to give the Ninth Circuit anoth­er chance to con­duct the Strickland analy­sis, Arizona asked the Court to go fur­ther and decide on its own whether Mr. Jones’ death sen­tence should stand based on his counsel’s per­for­mance. When Justice Sotomayor asked the state attor­ney why he sought the more seri­ous and much less com­mon rem­e­dy, he answered ​“final­i­ty” and argued that the case ​“has to end at some point.” Justice Gorsuch lat­er echoed those words, ask­ing whether there was ​“some val­ue to every­body hav­ing some final­i­ty in this case” and argu­ing that ​“we have the whole record before us and nothing’s changed in 20 years.” Justice Sotomayor, on the oth­er hand, pushed back. ​“That’s nice,” she told Arizona’s coun­sel, ​“but we’re not factfind­ers, and we gen­er­al­ly don’t weigh evi­dence. There’s thou­sands of pages in this record.”

The Court will like­ly issue its deci­sion in the case by the end of June. 

Court Appears to Sidestep Challenge to ​“Evolving Standards of Decency” Test 

On April 22, the Court heard oral argu­ment in City of Grants Pass v. Johnson, a case involv­ing a ​“camp­ing ban,” a munic­i­pal law that tar­gets unhoused peo­ple by crim­i­nal­iz­ing sleep­ing out­side. While not a cap­i­tal case, Grants Pass involves the Eighth Amendment’s pro­hi­bi­tion on cru­el and unusu­al pun­ish­ment, which has been assessed under the ​“evolv­ing stan­dards of decen­cy” frame­work for over six­ty years. The Court applied this test to reach land­mark rul­ings exempt­ing cer­tain groups from exe­cu­tion, includ­ing Ford v. Wainwright (1986) (peo­ple expe­ri­enc­ing insan­i­ty), Atkins v. Virginia (2002) (peo­ple with intel­lec­tu­al dis­abil­i­ty), Roper v. Simmons (2005) (juve­niles), and Kennedy v. Louisiana (2008) (peo­ple who com­mit non-homicide crimes). 

In an ami­cus brief filed last September, the attor­neys gen­er­al of twen­ty states asked the Court to grant review in Grants Pass in order to strike down the ​“evolv­ing stan­dards of decen­cy” test, argu­ing that courts ​“should not be tasked with judg­ing the chang­ing winds of society’s evolv­ing morals” and should instead ​“return to declar­ing what the law is.” They advo­cate an ​“orig­i­nal­ist” test, which pur­ports to inter­pret the Eighth Amendment under its mean­ing at rat­i­fi­ca­tion in 1791. (Critics have argued that orig­i­nal­ism ​“cher­ry-picks” his­tor­i­cal evi­dence, lend­ing itself to the sub­jec­tiv­i­ty it claims to cure, and fix­es the analy­sis at a time when women and peo­ple of col­or lacked basic rights.) ​“It’s clear that for at least some orig­i­nal­ists on the Court, ​‘evolv­ing stan­dards of decen­cy’ is a trav­es­ty, and on their wish list of things to get rid of,” said cap­i­tal pun­ish­ment schol­ar Carol Steiker ahead of the Grants Pass argu­ment. 

Sections of the brief are vir­tu­al­ly iden­ti­cal to an ami­cus brief filed five days ear­li­er by thir­teen of the same attor­neys gen­er­al in the death penal­ty case Hamm v. Smith, in which the Court has yet to issue a cer­tio­rari deci­sion. Alabama appealed the case last August after low­er courts vacat­ed Joseph Clifton Smith’s death sen­tence based on a find­ing of intel­lec­tu­al dis­abil­i­ty under Atkins. The Court has pushed its deci­sion on Smith back months, resched­ul­ing five times and relist­ing the case twelve times after it was first con­sid­ered at con­fer­ence. This makes Smith a sig­nif­i­cant out­lier in a dock­et where few cas­es are ever relist­ed, and only about 20% of relist­ed cas­es are relist­ed more than four times.

However, the chal­lenge to ​“evolv­ing stan­dards of decen­cy” appears to have fad­ed at least from Grants Pass; nei­ther of the par­ties men­tioned the test at Monday’s oral argu­ment. The jus­tices and advo­cates instead focused on whether the law pun­ished the ​“sta­tus” of being home­less. Additionally, the states filed a new brief in March that dropped the argu­ment oppos­ing ​“evolv­ing stan­dards of decen­cy” entire­ly. Though Professor Steiker said that alter­ing the test would have a ​“major effect” on cap­i­tal pun­ish­ment cas­es, she also com­ment­ed in 2022 that she found a full upheaval ​“unlike­ly.” She doubt­ed that all the jus­tices would be will­ing to ​“throw out 50 years of prece­dent, dozens of cas­es,” and pre­dict­ed instead that the Court would ​“nib­ble around the edges in less­en­ing restric­tions on the death penalty.”

Justices Share Philosophies on Stays  

On April 15, in Labrador v. Poe, the Court allowed por­tions of Idaho’s ban on gen­der-affirm­ing care for minors to take effect by vot­ing to stay the dis­trict court’s injunc­tion against the law. While Poe is also a non-cap­i­tal case, the deci­sion pro­voked writ­ten state­ments by mul­ti­ple jus­tices defend­ing their posi­tions on issu­ing stays, which offer insight into the Court’s approach to stays of exe­cu­tion in capital cases.

In a con­cur­rence joined by Justice Amy Coney Barrett, Justice Brett Kavanaugh not­ed that stay appli­ca­tions ​“can require this Court to assess the mer­its on a tight time­line — with­out the ben­e­fit of many rea­soned low­er-court opin­ions, full mer­its brief­ing, and oral argu­ment.” He acknowl­edged that ​“that sce­nario is not always opti­mal for order­ly judi­cial deci­sion­mak­ing.” However, he reject­ed the idea that those fac­tors should lead the Court to defer to low­er court rul­ings. ​“The emer­gency dock­et has always exist­ed, and both the Court and even indi­vid­ual Justices act­ing in cham­bers have made a pletho­ra of impor­tant deci­sions for the Nation in an emer­gency pos­ture,” he wrote. One of the ​“impor­tant deci­sions” he cit­ed in sup­port of the Court’s emer­gency author­i­ty was Rosenberg v. United States (1953), which vacat­ed stays of exe­cu­tion for Ethel and Julius Rosenberg (pic­tured), the only peo­ple put to death for peace­time espi­onage in American his­to­ry. Their exe­cu­tion gen­er­at­ed wide crit­i­cism, and the couple’s sons con­tin­ue to fight to prove Ethel’s inno­cence. (Ethel’s exe­cu­tion by elec­tro­cu­tion was also botched; she had to be strapped back into the chair for addi­tion­al charges, and wit­ness­es report­ed smoke ris­ing from her head).

Justice Ketanji Brown Jackson, joined by Justice Sotomayor, dis­sent­ed from the deci­sion and argued that the Court must ​“pro­ceed with rea­son and restraint” when inter­ven­ing in emer­gency cas­es. ​“Few appli­cants can meet our thresh­old require­ment of ​‘an excep­tion­al need for imme­di­ate relief,’ by show­ing that they will suf­fer not just sub­stan­tial harm but an ​‘irre­versible injury…occurring dur­ing the appeals process that can­not be lat­er redressed,’” she wrote. She stressed the impor­tance of ​“respect for low­er court judges — no less com­mit­ted to ful­fill­ing their con­sti­tu­tion­al duties than we are and much more famil­iar with the par­tic­u­lars of the case.” 

Death-sen­tenced pris­on­ers fac­ing exe­cu­tion are some of the few appli­cants who can demon­strate an ​“irre­versible injury,” their death, if they do not receive emer­gency relief — yet the Supreme Court rou­tine­ly lifts low­er court stays of exe­cu­tion, stays issued by judges in lengthy deci­sions with much greater famil­iar­i­ty with the case facts. The Supreme Court, by con­trast, typ­i­cal­ly pro­vides no expla­na­tion. These deci­sions occur on the ​“tight time­line” that Justice Kavanaugh admits under­mines the Court’s abil­i­ty to make a rea­soned deci­sion. In the 2018 through 2022 terms, the Court has lift­ed four times as many stays of exe­cu­tion as it has grant­ed. The Court has grant­ed 89% of requests by states to lift stays of exe­cu­tion, com­pared to 3% of pris­on­er requests to stay an execution. 

Justices Jackson, Sotomayor, and Kagan have reg­u­lar­ly dis­sent­ed from the Court’s deci­sions lift­ing low­er court stays. ​“In my view, we should resist being con­script­ed into ser­vice when our involve­ment amounts to micro­manag­ing the low­er courts’ exer­cise of their dis­cre­tionary author­i­ty,” wrote Justice Jackson in Poe.