United States Supreme Court Decisions: 2018-2019 Term


LAST UPDATED November 19, 2018


Bryan Stevenson, executive director of the Equal Justice Initiative and lead counsel for Vernon Madison, being interviewed NPR legal correspondent
Nina Totenberg outside the Supreme Court following oral argument in Madison v. Dunn on October 2, 2018. (DPIC photo by Robert Dunham)


    Pending Decisions

    Several death penalty cases have been carried over from the Court's 2017-2018 term:

    DUNN v. MADISON, No. 17-7505
    Cert. granted: February 26, 2018 
    Argument: October 2, 2018
    Decided: Not yet decided 

    The Supreme Court granted review in the case of Alabama death-row prisoner Vernon Madison. The questions presented by Madison in his petition are:

    1. Consistent with the Eighth Amendment, and this Court’s decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense? See Dunn v. Madison, 138 S. Ct. 9, 12 (Nov. 6, 2017) (Ginsburg, J., with Breyer, J., and Sotomayor, J., concurring).

    2. Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution? 

    You can read case-related documents on the Supreme Court website. You can read the transcript of the oral argument here.


    BUCKLEW v. PRECYTHE, No. 17-8151
    Cert. granted: April 30, 2018 
    Argument: November 6, 2018
    Decided: Not yet decided 

    This case presents an "as-applied" challenge to the constitutionality of Missouri's lethal-injection process.

    Missouri death-row prisoner Russell Bucklew has a rare congenital disease that causes blood-filled tumors in his head, neck, and throat, which can easily rupture. Bucklew has argued execution by lethal injection creates a significant risk that his tumors will erupt, causing unnecessary and excruciating pain and risking death by suffocation in violation of the Eighth Amendment. Bucklew's expert indicated that the hemorrhaging of the tumors "will further impede Mr. Bucklew’s airway by filling his mouth and airway with blood, causing him to choke and cough on his own blood during the lethal injection process." Pursuant to the requirement in Glossip v. Gross that a death-sentence prisoner demonstrate that a less painful method for his execution, Bucklew proposed execution by nitrogen gas. 

    Missouri first scheduled Bucklew's execution for May 21, 2014. A federal district court had dismissed his challenge to the constitutionality of Missouri's lethal-injection protocol without an evidentiary hearing, and his appeal of that ruling was pending before the U.S. Court of Appeals for the Eighth Circuit. On the day of Bucklew's the execution, the Supreme Court granted a stay of execution to permit the Eighth Circuit to decide the appeal. After ten months, the Eighth Circuit ruled in Bucklew's favor, and returned the case to the district court for further proceedings. While the case was pending in the federal district court, Bucklew sought discovery relating to the qualifications of the personnel on the lethal-injection team to carry out an execution involving a person with his medical condition. Missouri opposed disclosing the information and the district court repeatedly denied Bucklew's requests. The district court found that execution by lethal injection posed a substantial risk that Bucklew "will experience choking and an inability to breathe for up to four minutes." It nonetheless granted summary judgment for the state without taking evidence on or deciding whether execution by nitrogen gas would significantly reduce Bucklew's risk of suffering. While Bucklew's case was pending on appeal, the state of Missouri scheduled another execution date for March 20, 2018. On March 6, the Eighth Circuit, in a 2-1 opinion, affirmed the lower court's denial of relief to Bucklew. 

    On March 20, only hours before his execution was set to begin, the Supreme Court granted Bucklew a stay of execution to allow time to decide whether to grant certiorari in his case. On April 30, after scheduling the case for conference on three separate occasions, the Court granted certiorari on the three questions presented by Bucklew and directed the parties to address an additional, fourth question for the parties to address. The questions presented are set forth below. (The first three questions were presented in the petition for certiorari, and the last question was added by the Court.) 

    1. Should a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition assume that medical personnel are competent to manage his condition and that the procedure will go as intended? 

    2. Must evidence comparing a state’s proposed method of execution with an alternative proposed by an inmate be offered via a single witness, or should a court at summary judgment look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate? 

    3. Does the Eighth Amendment require an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition? 

    4. Whether petitioner met his burden under Glossip v. Gross, 576 U. S. ___ (2015), to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the State's method of execution.

    You can read case-related documents on the Supreme Court website. 


    CARPENTER* v. MURPHY, No. 17-1107
    (*formerly Royal v. Murphy before a change of warden)
    Cert. granted: May 21, 2018 
    Argument: November 27, 2018
    Decided: Not yet decided 

    Patrick Dwayne Murphy is a member of the Creek Nation. He was prosecuted by the State of Oklahoma for the murder of another Creek member and was convicted and sentenced to death by a jury in McIntosh County, Oklahoma. In his federal habeas corpus proceedings, Murphy appealed to the U.S. Court of Appeals for the Tenth Circuit, aruging that he should have been tried in federal court because he is a Creek and the offense occurred in the boundaries of the Creek Nation. Under federal law, he asserted, the federal government had "exclusive jurisdiction to prosecute murders committed by Indians in Indian country," and therefore, the State lacked jurisdiction when it prosecuted him. After applying the laws enacted by Congress and interpreted by the U.S. Supreme Court, the Tenth Circuit agreed with Murphy, and issued an order directing the lower court to issue a writ of habeas corpus. 

    The State of Oklahoma via Terry Royal, Warden for the Oklahoma State Penitentiary, asked the Supreme Court to review the case. On May 21, the Supreme Court granted review of the question presented by Petitioner Royal. Justice Gorsuch took no part in the consideration or decision to grant review. Following the grant of certiorari, Mike Carpenter replaced Royal as interim warden and petitioner. The question presented is: 

    Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a).* 

    *18 U.S.C. § 1151 states in relevant part: “[T]he term ‘Indian country’, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights- of-way running through the reservation.”

    You can read case-related documents on the Supreme Court website.


    The Court also has granted certiorari to review a Mississippi death-penalty case this term:

    FLOWERS v. MISSISSIPPI, No. 17-9572
    Cert. granted: November 2, 2018 
    Argument: Not yet scheduled
    Decided: Not yet decided 

    The Supreme Court granted review in the case of Mississippi death-row prisoner Curtis Giovanni Flowers on the question of "Whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky, 476 U. S. 79 (1986), in this case." (Batson prohibits the use of discretionary jury strikes to remove veniremembers from jury service because of their race.)
    Flowers has been capitally tried six times by the same prosecutor, Doug Evans, for a notorious 1996 quadruple murder in Winona, Mississippi. Evans struck nearly all of the African-American jurors in each trial and has already been found to have violated Batson twice. In the sixth trial, Evans accepted the first qualified African-American potential juror and then struck the five remaining African Americans in the jury pool.  On direct appeal, Flowers raised a Batson claim, and the Mississippi Supreme Court denied relief, affirming Flowers’s conviction and sentence. 

    In 2016, the United States Supreme Court granted certiorari, vacated and remanded the case “for further consideration in light of Foster v. Chatman, 136 S.Ct. 1737 (2016).”  On remand, the Mississippi Supreme Court again affirmed, with three justices dissenting. The court wrote: “The prior adjudications of the violation of Batson do not undermine Evans’ race neutral reasons” for striking black jurors at this trial and “the historical evidence of past discrimination ... does not alter our analysis.” Flowers v. Mississippi, 240 So.3d 1082, 1124 (Miss. 2018).

    A study of jury selection in Mississippi's Fifth Circuit Court District over the 26-year period from 1992 to 2017 in which Doug Evans was District Attorney found that throughout Evans's tenure, his office struck prospective black jurors at nearly 4½ times the rate it struck white prospective jurors. The study, conducted by American Public Media, in association with its podcast series, In the Dark, looked at 225 trials and the strikes or acceptances of more than 6,700 jurors.

    You can read case-related documents on the Supreme Court website.



    Opinions of the Court

    The Court's 2018-2019 session began the first Monday in October.  No death-penalty opinions have been issued.  



    Orders of the Court and Related Items

    On November 2, 2018, the Court granted certiorari in Flowers v. Mississippi, the first grant of review in a capital case in the 2018-19 court term.


    Denials of Review, With Statements by Individual Justices

    As of November 13, 2018, the Court has denied review in 84 cases this term in which Florida petitioners challenged their death sentences based on Hurst v. Florida, 577 U. S. ___ (2016).  In Hurst, the Court relied upon the line of cases beginning with Ring v. Arizona, 536 U.S. 584 (2002), to hold that Florida’s sentencing scheme violated the constitution because a judge (and not a jury) found the facts necessary to impose the death sentence. 

    In Reynolds v. Florida, No. 18–5181 (cert denied Nov. 13, 2018), Justices Breyer, Thomas, and Sotomayor provided statements about the denial of review to petitioner Michael Gordon Reynolds and petitioners with similar cases. On the same day, the Court denied review to petitioners Jesse Guardado, No. 17–9284; Lenard James Philmore, No. 17–9556; Michael Anthony Tanzi, No. 18–5160; Quawn M. Franklin, No. 18–5228; Norman Mearle Grim, No. 18–5518; and Ray Lamar Johnston, No. 18–5793.  These cases sought review of the Florida Supreme Court practice of finding Hurst error harmless when the unconstitutional judicial factfinding occurred after a jury unanimously recommended a death sentence.

    Justice Breyer did not dissent from the Court’s denial of review but noted three common issues that arose in many of the Florida cases denied certiorari in the current term: “the unconscionably long delays that capital defendants must endure as they await execution…; whether the Constitution demands that Hurst be made retroactive to all cases on collateral review…[; and] whether the Eighth Amendment requires a jury rather than a judge to make the ultimate decision to sentence a defendant to death.“  Justice Breyer concluded that these issues cast doubt on whether the death sentences truly reflect the community’s judgment and highlight the need to question the constitutionality of the death penalty.

    Justice Thomas concurred in the court’s denials, focusing heavily on the gruesomeness of the petitioners’ crimes and briefly arguing against each of the issues raised in Justice Breyer’s statement.

    Justice Sotomayor dissented from the denials of certiorari in the Hurst-related Florida cases.  In her dissenting opinion, she highlighted serious constitutional concerns raised by the Florida Supreme Court’s harmless error analysis that, in practice, treated a unanimous jury recommendation of death as conclusive proof of harmless error.  She discussed the potential conflict between this approach and the US Supreme Court’s reasoning in Caldwell v. Mississippi, 472 U. S. 320 (1985) Justice Sotomayor summarized her reasoning for voting in favor of review as follows:

    “[T]his Court’s Eighth Amendment jurisprudence has taken as a given that capital sentencers would view their task as the serious one of determining whether a specific human being should die at the hands of the State.” Caldwell, 472 U. S., at 329. The jurors in petitioners’ cases were repeatedly instructed that their role was merely advisory, yet the Florida Supreme Court has treated their recommendations as legally binding by way of its harmless- error analysis. This approach raises substantial Eighth Amendment concerns.


    Townes v. Alabama, No. 17-7894  

    On October 29, the Supreme Court denied Tawuan Townes’ petition for writ of certiorari. Justice Sonia Sotomayor provided a statement explaining that although she voted to deny Townes’ petition, the trial court’s conduct was deeply troubling.

    Justice Sotamayor explained the factual background for Townes’ petition for certiorari: Townes’ capital murder conviction relied entirely on whether the state could prove that he intended to kill Charles Wood during a burglary.  Initially, the trial transcript showed that Judge Larry Anderson had unconstitutionally instructed the jury that they must infer specific intent from certain circumstances.  After the Alabama Court of Criminal Appeals reversed Townes’ conviction on this basis, Judge Anderson filed a “supplemental record” stating that the jury instructions had been mis-transcribed.  The Court of Criminal Appeals remanded the case to Judge Anderson in order to have a new court reporter review the audio recording and submit a new transcript.  The new transcript was identical to the original other than transcribing “may” in the jury instructions instead of “must.”  Based on the new transcription, the Alabama Court of Criminal Appeals affirmed Townes’ conviction and sentence.

    Townes filed a petition for certiorari in the United States Supreme Court, and the court requested the state court record, including the audio recording that was transcribed.  The trial court stated “that the recording no longer exists.”  Justice Sotamayor recognized that without the audio recording, the U.S. Supreme Court was forced to rely on the second transcription as the official record of proceedings.  As a result, Justice Sotamayor voted to deny review.  However, the justice strongly admonished the state court:

    In a matter of life and death, hinging on a single disputed word, all should take great care to protect the reviewing courts’ opportunity to learn what was said to the jury before Townes was convicted of capital murder and sentenced to death.  Yet the trial court, after its unilateral intervention in Townes’ appeal resulted in dueling transcripts, failed to preserve the recording at issue—despite the fact that Townes’ case was still pending direct review, and, consequently, his conviction was not yet final. As a result, the potential for this Court’s full review of Townes’ conviction has been frustrated.

    Read Justice Sotamayor’s statement here.


    Miscellaneous Orders

    On September 18, 2018, the Court issued an order requesting that Kentucky provide the Court with a copy of the record in White v. Kentucky, No. 17-9467 (Larry L White), a death penalty case that raises Eighth Amendment issues related to the appropriate standard to be applied in assessing a defendant's possible intellectual disability and Due Process issues related to the scope of a search by police after a traffic stop.



    Petitions of Interest

    JONES v. OKLAHOMA, No. 17-6943, Filed November 28, 2017
    WOOD v. OKLAHOMA, No. 17-6891, Filed November 27, 2017 

    Two black men—Julius Jones (pictured, L) and Termane Wood (pictured, R), who were each sentenced to death in Oklahoma County, Oklahoma, for separate incidents in which a white male was killed—have asked the Supreme Court to review their cases based on new evidence that Oklahoma's death penalty unconstitutionally discriminates based on race. According to the petition filed with the Court, a 2017 study on race and capital sentencing patterns "found that non-whites accused of killing white males are statistically more likely to receive a sentence of death in Oklahoma on that basis alone, and controlling for other aggravating circumstances.

    The questions presented in each of the cases are: 

    (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that [petitioner's] death sentence is unconstitutional under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution?

    (2) Whether Oklahoma’s capital post-conviction statute, specifically Okla. Stat. Ann. tit. 22, § 1089(D)(8)(b), and the OCCA’s application of the statute in [petitioner's] case, denies [petitioner] an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the Fourteenth Amendment’s Due Process and Equal Protection Clauses? 

    As of August 31, the cases have been distributed for conference fourteen times.  

    Read the case-related documents in Julius Jones's case here. Read the case-related documents in Tremane Wood's case here.


    Donnie Cleveland Lance v. Sellers (Georgia), No. 17-1382 (Donnie Cleveland Lance

    1. Whether it was objectively unreasonable for the Georgia Supreme Court to find no prejudice resulted from the failure of defense counsel to conduct any investigation and to present any mitigating evidence, including readily available and undisputed expert testimony that the defendant suffered from significantly diminished mental capacity constituting dementia at the time of the crime, when these failures deprived the jury of mitigating evidence that was essential to an individualized determination of the defendant’s culpability.

    2. Whether prejudice must be presumed in a death penalty case when defense counsel fails to conduct any investigation of potential mitigating evidence, fails to offer any evidence during the penalty phase, and fails to subject the state’s penalty phase witnesses to any cross-examination, thereby undermining the adversarial system and depriving the defendant and the fact-finder of any meaningful opportunity to conduct an individualized determination of the defendant’s culpability