On October 13, the U.S. Supreme Court agreed to hear two cap­i­tal cas­es from Texas in which the defen­dant was sen­tenced to death after the jury was giv­en instruc­tions that the Court has since found uncon­sti­tu­tion­al. Unlike in most states where the jury con­sid­ers a range of aggra­vat­ing and mit­i­gat­ing cir­cum­stances about the crime and the defen­dant before choos­ing a sen­tence of life or death, in Texas the jury was (the law has since been mod­i­fied) giv­en a series of yes-or-no ques­tions about the crime and the future dan­ger­ous­ness of the defen­dant. In pri­or cas­es, the Supreme Court has said that such a mech­a­nism does not allow full con­sid­er­a­tion of a per­son­’s men­tal dis­abil­i­ties, which should be count­ed as a mit­i­gat­ing fac­tor. In the cas­es recent­ly accept­ed, the tri­al judges instruct­ed the jury that they could sim­ply answer ​“no” to one of the fac­tu­al ques­tions if they did not want to sen­tence the per­son to death, even though the prop­er answer based on the facts should be ​“yes.” In both of the new cas­es tak­en by the Court, the defen­dants were sen­tenced to death using this ​“nul­li­fi­ca­tion” instruc­tion, and their appeals were denied by the U.S. Court of Appeals for the 5th Circuit.

The cas­es are Abdul-Kabir v. Quarterman, No. 05 – 11284, and Brewer v. Quarterman, No. 05 – 11287, and they will be con­sol­i­dat­ed into one hear­ing. One week ago, the Court agreed to hear anoth­er cap­i­tal case (Smith v. Texas) involv­ing Texas’ jury instruc­tions, where a re-sen­tenc­ing was denied by the Texas Court of Criminal Appeals despite the fact that the Supreme Court had pre­vi­ous­ly found the pri­or sen­tence to be uncon­sti­tu­tion­al. (Houston Chronicle, Oct. 14, 2006; SCOTUSblog​.com, Oct. 13, 2006). See Supreme Court.

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