United States Supreme Court Decisions: 2018-2019 Term


LAST UPDATED April 18, 2019


Bryan Stevenson, executive director of the Equal Justice Initiative and lead counsel for Vernon Madison, being interviewed by 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


    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.


    FLOWERS v. MISSISSIPPI, No. 17-9572
    Cert. granted: November 2, 2018
    Argument: March 20, 2019
    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.


    KAHLER v. KANSAS, No. 18-6135
    Cert. granted: March 18, 2019
    Argument: Not yet scheduled
    Decided: Not yet decided

    The Supreme Court has granted review of the case of Kansas death-row prisoner James Kahler. Kahler was sentenced to death for killing four of his family members in the midst of a major depressive episode. Kahler’s evaluation by a forensic psychiatrist showed that Kahler may have experienced “stress induced short-term dissociation” and felt compelled to commit the homicides without the ability to control his behavior. (Kahler Cert. Petition at 7.)

    Kahler's attorneys argue that this mental health evidence could have provided the basis for an insanity defense except for the fact that Kansas has abandoned this traditional defense. Traditionally, defendants were not allowed to be found guilty of a crime if their mental health issue meant that they were “unable to know the nature and quality of his actions or know the difference between right and wrong with respect to his actions.” (Cert. Petition at 3 (quoting Marc Rosen, Insanity Denied: Abolition of the Insanity Defense in Kansas, 8 Kan. J.L. & Pub. Pol’y 253 (1998)).) However, Kansas has abandoned this definition of insanity. Instead, Kansas law only allows a mental-health-based acquittal if evidence shows that due to a "mental disease or defect" a defendant lacked the mental state required to commit the crime charged. Alaska, Idaho, Montana, and Utah also do not allow an insanity defense.

    Kahler argues that the lack of an insanity defense violates the US Constitution’s guarantees of due process and freedom from cruel and unusual punishments by allowing the conviction and death sentencing of defendants who lack moral culpability for their crimes. Kahler is asking the Court to clarify the question left open in Clark v. Arizona, 548 U.S. 735 (2006), “Do the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense?”

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



    Opinions of the Court

    BUCKLEW v. PRECYTHE, No. 17-8151
    Cert. granted: April 30, 2018
    Argument: November 6, 2018
    Decided: April 1, 2019

    In a 5-4 decision, the Supreme Court denied Russell Bucklew’s claim that Missouri’s lethal injection procedures would subject him to cruel and unusual punishment.

    Bucklew has a rare congenital disease that causes blood-filled tumors in his head, neck, and throat, which can easily rupture. Bucklew argued that 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. 

    Justice Neil Gorsuch authored the majority opinion denying Bucklew relief. Gorsuch based much of his reasoning on the principle that “the Eighth Amendment does not guarantee a prisoner a painless death.” The majority held that a prisoner challenging a method of execution must provide a readily available alternative, even when the challenge is based on characteristics unique to the individual prisoner. The majority found that Bucklew had not provided sufficient evidence that nitrogen hypoxia was a readily available alternative or that nitrogen hypoxia would significantly reduce the risk of severe pain.

    In a non-binding portion of the opinion, Justice Gorsuch suggested that challenges to lethal injection are often “tools to interpose unjustified delay” and wrote that “[l]ast-minute stays should be the extreme exception, not the norm.” Justice Clarence Thomas concurred separately reiterating his belief that “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain. … Because there is no evidence that Missouri designed its protocol to inflict pain on anyone, let alone Russell Bucklew, I would end the inquiry there,” he wrote. Justice Brett Kavanaugh also concurred, emphasizing that the alternative method proposed by the death row prisoner “need not be authorized under current state law.” Kavanaugh suggested death by firing squad as an example of a potentially available alternative method.

    Justices Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, dissented. Justice Breyer’s lead dissent criticized the majority’s treatment of the evidence Bucklew had presented in support of his Eighth Amendment claim. That evidence, Breyer wrote, establishes that “executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering” and “violates the clear command of the Eighth Amendment.” He also argued that a prisoner who is challenging the cruelty of a particular execution method based solely on his or her unique medical circumstances should not be required to identify an alternative method of execution, but that Bucklew nevertheless had adequately raised nitrogen hypoxia as an alternative. Finally, in a part of the dissent expressing only his own opinion, Breyer argued that the majority’s approach to redressing execution delays by “curtailing the constitutional guarantees afforded to prisoners” is inappropriate. Instead, he suggested, the delays necessary to ensure that the capital punishment is fairly imposed and properly carried out may be evidence that “there simply is no constitutional way to implement the death penalty.”

    In a separate dissent, Justice Sotomayor called the Court’s approach to lethal-injection challenges “misguided,” writing that, “[a]s I have maintained ever since the Court started down this wayward path in [2015], there is no sound basis in the Constitution for requiring condemned inmates to identify an available means for their own executions.” Calling the majority’s comments about last-minute stays “not only inessential but also wholly irrelevant to its resolution of any issue” before the Court, Sotomayor cautioned that “[i]f a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.”

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


    MADISON v. ALABAMA, No. 17-7505
    Cert. granted: February 26, 2018
    Argument: October 2, 2018
    Decided: February 27, 2019

    In a 5-3 decision, the Supreme Court vacated the dismissal of Alabama prisoner Vernon Madison’s claim that he is incompetent to be executed.  In doing so, the Supreme Court clarified the standards for determining whether the Eighth Amendment allows an individual with a mental illness to be executed.

    In 2015 and 2016, Madison suffered from multiple severe strokes that, along with other medical issues, resulted in vascular dementia and accompanying cognitive decline and memory loss. Madison attempted to stop Alabama from executing him, arguing that his execution would violate the United States Constitution.  At a hearing in state court, he presented evidence that he had no memory of the crime for which he was sentenced to death.  The state’s expert agreed that Madison exhibited cognitive decline but emphasized that there was no evidence of psychosis or delusions, and the state court denied Madison’s competency claim.  Madison sought federal review and was granted habeas relief by the Eleventh Circuit Court of Appeals; however, the Supreme Court reversed the circuit’s decision because the principles underlying the circuit's decision were not "clearly established."

    In 2018, Madison again requested a stay of execution in Alabama state court.  When his request was denied, he petitioned the Supreme Court.  Justice Kagan, writing for a five-judge majority found that because it was unclear whether the state court had correctly applied Eighth Amendment standards to Madison’s request, the case was to be remanded for further consideration.

    The opinion explored the Eighth Amendment incompetency to be executed standard set forth in Ford v. Wainwright and applied in Panetti v. Quarterman.  These cases established that the Eighth Amendment forbids the execution of a prisoner who does not have “a rational understanding of the reason for [his] execution.”  Applying this precedent to Madison’s situation, the Court held that a prisoner may have a rational understanding without remembering the crime for which he is being executed.  The Court also held that a person without psychosis or delusions could be found incompetent to be executed.  Summarizing this conclusion, the Court stated: “What  matters  is  whether  a  person  has  the  ‘rational  understanding’ Panetti requires—not  whether  he  has  any  particular memory or any particular mental illness.” The Supreme Court vacated the state court’s decision because the denial of Madison’s claim may have rested on the assumption, as argued by the prosecution, that dementia cannot form the basis of an incompetency claim.

    Justice Alito wrote a dissent joined by Justices Thomas and Gorsuch.  The dissent claimed that the court’s decision was based on an argument not raised in Madison’s petition for certiorari and accused Madison’s counsel of engaging in a bait and switch.  Justice Kavanaugh did not participate in the case.

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


    Per Curiam Opinions

    In Moore v. Texas, No. 18-443, the Supreme Court issued a per curiam opinion reversing the Texas Court of Criminal Appeals’ denial of Bobby James Moore’s claim that intellectual disability rendered him ineligible for the death penalty. Chief Justice Roberts wrote a concurring opinion, and Justices Alito, Thomas, and Gorsuch dissented.

    This was the second time the Supreme Court reviewed the denial of Moore’s intellectual disability claim. In 2014, a Texas trial court found that Moore had an intellectual disability and was thus ineligible to be sentenced to death as a result of Atkins v. Virginia, 536 U.S. 304 (2002). The Texas Court of Criminal Appeals overturned the trial court’s decision, holding that the trial court had misapplied Texas law and that Moore had not proven an intellectual disability. In Moore v. Texas, 581 U. S. ___ (2017), the Supreme Court vacated the Texas Court of Criminal Appeals’ decision and remanded the case for further consideration. The Supreme Court criticized the Texas court’s focus on Moore’s adaptive strengths and its use of the factors for assessing adaptive deficits set forth in Ex Parte Briseno, 135 S. W. 3d 1 (Tex. Crim. App. 2004). The Supreme Court noted that the Briseno factors were not scientifically based but instead relied upon “lay stereotypes” about people with intellectual disabilities.

    On remand, the Harris County Prosecutor’s Office agreed that Moore had proven his intellectual disability. Howvever, the Texas Court of Criminal Appeals again concluded that Moore had not proven significant deficits in adaptive functioning. Moore sought review of this decision in the US Supreme Court. The Supreme Court found that though the Texas court claimed to have abandoned the Briseno factors, it continued to overemphasize Moore’s adaptive strengths, rely upon his behavior in prison, speculate on the source of adaptive deficits, and base conclusions on stereotypes about individuals with intellectual disability.

    Chief Justice Roberts wrote a one-paragraph concurring opinion reiterating his concerns about the lack of clarity in the Supreme Court’s Atkins jurisprudence. However, Chief Justice Roberts joined the court’s opinion because the Texas Court of Criminal Appeals clearly misapplied Atkins in deciding Moore’s case. Justice Alito, joined by Justices Thomas and Gorsuch, dissented, accusing the majority of improperly engaging in factfinding and failing to provide clarity to lower courts.

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


    In Shoop v. Hill, No. 18-56, the Supreme Court vacated the US Court of Appeals for the Sixth Circuit’s grant of habeas relief to Danny Hill. An Ohio court sentenced Hill to death in 1986 for the murder of Raymond Fife, and following a series of appeals, Hill sought habeas relief in federal court on the basis of intellectual disability. His habeas petition was denied at the district court level but granted by the Sixth Circuit, which held that Ohio courts had unreasonably applied Supreme Court precedent in denying Hill’s claim that he is intellectually disabled.

    In a per curiam decision, the Supreme Court concluded that the Sixth Circuit improperly relied on Moore v. Texas, 581 U.S. ___ (2017), in deciding whether Hill’s case satisfied the 28 U.S.C. 2254(d)(1) standard for federal habeas relief. Section 2254(d)(1) permits habeas relief to be granted if the state court’s resolution of an issue “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”

    At the time the Ohio appellate court considered Hill’s intellectual disability claim in 2008, Atkins v. Virginia, 536 U. S., 304, 316 (2002), was the only U.S. Supreme Court decision that addressed the circumstances in which an individual with an intellectual disability (then referred to as “mental retardation”) is constitutionally ineligible for the death penalty. The Sixth Circuit looked to Atkins in light of the Supreme Court’s later decisions in Hall v. Florida, 572 U.S. 701 (2014), and Moore v. Texas in concluding that Ohio’s evaluation of Hill’s intellectual disability claim unreasonably applied Atkins by focusing on Hill’s “adaptive strengths” instead of his “adaptive deficits.” The Supreme Court held that, contrary to the Sixth Circuit’s analysis, the reasoning in Hall and Moore was not clearly established by the Atkins decision.

    The Supreme Court vacated the Sixth Circuit’s decision and remanded the case for reconsideration “based strictly on legal rules that were clearly established in the decisions of this Court at the relevant time.” The Supreme Court made no mention of the Sixth Circuit’s determination that the Ohio courts unreasonably determined facts by finding that Hill’s adaptive deficits did not manifest before age 18.

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



    Orders of the Court and Related Items

    Notable Decisions on Stay of Execution Motions

    In a contentious ruling issued in the early morning hours of April 12, 2019, the U.S. Supreme Court vacated a stay of execution issued by lower federal courts and cleared the way for Alabama to execute Christopher Price. Scheduled to be executed April 11, Price challenged Alabama’s lethal-injection protocol as unnecessarily torturous and –as required by Supreme Court case law – proposed an alternative method of execution. Price selected nitrogen hypoxia, the alternative method of execution made available in Alabama’s death-penalty statute. The Alabama Attorney General’s office opposed Price’s motion, arguing that lethal gas was not available to Price because he had failed to select it during the 30-day window created when Alabama added lethal gas to its execution statute. The district court agreed and denied Price’s claim, prompting an appeal to the U.S. Court of Appeals for the Eleventh Circuit. The circuit court ruled that once Alabama had codified lethal gas as an alternative method of execution under its statute, it could not claim that gas was unavailable to execute Price. However, the circuit court rejected Price’s stay motion, saying he had failed to meet the additional burden imposed by the U.S. Supreme Court that he prove that execution by nitrogen hypoxia would significantly reduce the risk of unnecessarily severe pain during the execution.

    Following the 11th Circuit’s ruling, Price returned to the district court with uncontroverted affidavits from medical experts who said nitrogen gas posed a significantly reduced risk of severe pain compared to the state’s lethal-injection protocol. Based on this evidence, the federal district court granted Price a stay of execution. Later in the day, without ruling on the merits of the district court’s order, the 11th Circuit imposed its own stay of execution to consider jurisdictional issues presented by the district court stay. Alabama then filed an emergency motion in the U.S. Supreme Court seeking to vacate the stay, leading to the overnight ruling by the Court.

    In a one-paragraph order vacating the stay, the majority said that Price had not timely selected lethal gas during a 30-day window created when Alabama added lethal gas to its execution statute and then waited until February 2019 to challenge the state’s method of execution. As a result, the majority viewed Price’s lawsuit and pre-execution filings as untimely. Justice Stephen Breyer – joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan – wrote an impassioned dissent. “Should anyone doubt that death sentences in the United States can be carried out in an arbitrary way,” he wrote, “let that person review the … circumstances as they have been presented to our Court this evening.” Breyer highlighted the uncontested evidence presented in the courts below: that Alabama’s lethal injection protocol will likely cause Price “severe pain and needless suffering”; that lethal gas is a readily available method, and that lethal gas is likely less painful than Alabama’s lethal injection protocol. Breyer also criticized the majority’s substitution of its judgment for the district court’s finding that Price had been “proceeding as quickly as possible on this issue since before the execution date was set” and was not attempting “to manipulate the execution.” Breyer expressed deep concern for the majority’s insistence on vacating a stay despite his request to consider the issue at a prescheduled conference to be attended by all the justices that morning. “To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system,” Breyer wrote.


    The Supreme Court granted a stay of execution to Patrick Henry Murphy on March 28, 2019.  Justices Thomas and Gorsuch dissented from the grant of the stay, and Justice Kavanaugh wrote a concurring statement.  Murphy challenged his execution because Texas allowed Christian and Muslim spiritual advisors in the execution chamber but his Buddhist spiritual adviser would be excluded.  Texas argued that the Christian and Muslim advisors were state employees, and the exclusion of non-state employees was justified on security grounds.  Justice Kavanaugh based his concurrence on the principle that “[t]he government may not discriminate against religion generally or against particular religious denominations.” He noted that the state could address security concerns by excluding all spiritual advisors from the execution chamber.  However, “[w]hat the State may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room.”


    On February 7, 2019, the Supreme Court vacated the stay of execution granted to Domineque Ray by the Eleventh Circuit Court of Appeals. Ray argued that Alabama’s execution process discriminated based on religion by allowing a Christian chaplain into the execution chamber but not Ray’s Muslim spiritual advisor.  In vacating the stay, the majority cited cases discouraging “last-minute” stay requests.  Justice Kagan wrote a dissenting opinion joined by Justices Ginsburg, Breyer, and Sotomayor. Quoting prior Supreme Court decisions, Justice Kagan wrote, “‘The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.’ But the State’s policy does just that. Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion—whether Islam, Judaism, or any other—he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.”  Justice Kagan also argued that the timing of Ray’s stay motion was the result of Alabama’s secrecy about its execution protocol.


    Grants of Review with Summary Dispositions

    Precythe v. Johnson, No. 18-852

    In an April 15, 2019 order, the Supreme Court granted the petition for certiorari filed by the State of Missouri in the lethal injection case of Ernest Johnson. The Eighth Circuit Court of Appeals had held that Johnson sufficiently pled an alternative method of execution, lethal gas. The state argued that Johnson had not sufficiently outlined the procedures for this alternative method. The question presented in its petition for certiorari was: "Whether an inmate who demands an alternative method of execution must plead facts detailing the procedure by which his proposed alternative method of execution would be administered." The Supreme Court granted the petition, vacated the Eighth Circuit's decision, and remanded for further consideration in light of Bucklew v. Precythe.


    White v. Kentucky, 17-9467

    In a January 15, 2019 order, the Supreme Court granted certiorari in petitioner Larry Lamont White’s case, which challenged the Kentucky Supreme Court’s affirmation of his conviction and death sentence. In the same order, the Court summarily vacated the Kentucky Supreme Court’s opinion and remanded for further consideration in light of Moore v. Texas, 137 S. Ct. 1039 (2017). Justices Alito, Thomas, and Gorsuch dissented based on the fact that Moore had been decided five months before the Kentucky Supreme Court decided White’s case.

    In denying White’s claim, the Kentucky Supreme Court cited Kentucky Revised Statute 532.135, which requires an IQ score of 70 or lower before a trial court conducts a hearing on adaptive functioning. The court interpreted Hall v. Florida, 134 S. Ct. 1986 (2014), as requiring this statute to take into account the standard error of measurement, meaning that petitioners with scores as high as 75 would meet the threshold for an intellectual disability hearing. However, the court noted that the standard error of measurement still left White’s IQ above Kentucky’s statutory cutoff of 70. The Court refused to adjust White’s 1971 IQ score downwards to account for the “Flynn effect”—average IQs rising with time. It also relied upon White’s filing of pro se motions to support its conclusion that White was not entitled to an intellectual disability hearing.

    In his petition for certiorari, White argued that this decision conflicted with Moore. White also noted that the Kentucky Supreme Court had in a subsequent decision determined that Kentucky’s statutory IQ cutoff violated the Eighth Amendment standard as set forth in Moore. See Woodall v. Commonwealth, No. 2017-SC-000171 (Ky. 2018).

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


    Denials of Review, With Statements by Individual Justices

    Lance v. Sellers, No. 17-1382

    On January 7, 2019, the Supreme Court denied Donnie Cleveland Lance’s petition for certiorari with Justice Sotomayor writing a dissenting opinion joined by Justices Ginsburg and Kagan.

    Lance was sentenced to death by a Georgia court for the 1997 murder of his ex-wife Sabrina “Joy” Lance and her boyfriend Dwight “Butch” Wood, Jr. Lance’s trial lawyer – a solo practitioner who was convinced he could persuade the jury of Lance’s innocence – asked the trial court to appoint a second lawyer to handle any potential penalty phase. The court denied that request and also denied a defense motion for funds to retain expert witnesses to challenge the range of experts hired by the prosecution in the case. After the court denied his motions, Lance’s lawyer conducted no penalty-phase investigation and did nothing to prepare for the penalty phase. Following Lance’s conviction, counsel made no penalty-phase opening statement, called no witnesses, and presented no mitigating evidence. In his cursory closing argument, counsel asked the jury to think of Lance’s family and to not seek vengeance.

    In state post-conviction proceedings, Lance argued that his Sixth Amendment right to counsel was violated by his trial attorney’s failure to present mitigation evidence. Under the Supreme Court’s precedent, the Sixth Amendment is violated when defense counsel (1) exhibits deficient performance that (2) prejudices her or his client. See Strickland v. Washington, 466 U.S. 668 (1984),

    Lance’s post-conviction attorneys presented evidence of Lance’s significant history of head trauma that damaged the frontal lobe of his brain. At a Georgia trial court hearing, four mental health experts agreed that Lance’s frontal lobe was damaged, that his IQ was on the borderline for intellectual disability, and that he suffered from clinical dementia. While the three defense experts agreed that Lance’s brain damage impacted his ability to control his impulses, the state’s expert disagreed about the extent of his impairment. As a result of this evidence, a Georgia trial court granted post-conviction relief, finding that counsel’s deficient performance kept the jury from seeing significant mental health evidence that could have resulted in a non-death verdict. The Georgia Supreme Court reversed, holding that though counsel’s performance was deficient, Lance was not prejudiced because there was no reasonable probability that the jury would have issued a different verdict.

    In federal habeas corpus proceedings, the district court and court of appeals declined to disturb the Georgia Supreme Court’s finding on the prejudice prong. With the US Supreme Court’s denial of certiorari, this holding stands. However, in her dissent Justice Sotomayor argued that habeas relief is appropriate because the Georgia Supreme Court unreasonably applied Supreme Court precedent when it “mischaracterized or omitted key facts and improperly weighed the evidence.” Justice Sotomayor explained:

    To be sure, the evidence before the jury—the brutality of Joy’s death, Lance’s past violence toward her, and Lance’s conduct thereafter—could have supported a death sentence. See Ga. Code Ann. §§17–10–30(b), 17–10–31(a). But there is a stark contrast between no mitigation evidence whatsoever and the significant neuropsychological evidence that adequate counsel could have introduced as a potential counterweight. Lance’s unintroduced case for leniency, even if not airtight, “adds up to a mitigation case that bears no relation to the few naked pleas for mercy actually put before the jury.” Rompilla, 545 U. S., at 393; see also Williams, 529 U. S., at 398. Our precedents thus clearly establish Lance’s right to a new sentencing at which a jury can, for the first time, weigh the evidence both for and against death.

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


    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 Sotomayor 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 Sotomayor 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 Sotomayor 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 Sotomayor’s statement here.


    Tharpe v. Ford, No. 18-6819

    On March 18, 2019, the Supreme Court denied the certiorari petition of Keith Tharpe, a Georgia death-row prisoner.  Tharpe asked the U.S. Supreme Court to review for the second time the Eleventh Circuit's refusal to allow the appeal of his claim that he was denied a fair trial due to a juror's racial bias. Several years after Tharpe's trial, a white juror who had voted to impose death told Tharpe's attorneys—and signed an affidavit saying—that he believed “there are two types of black people: 1. Black folks and 2. N[**]gers,” and Tharpe was not in “the 'good' black folks category.” This same juror also admitted that he “wondered if black people even have souls.” Tharpe presented this affidavit in state court, but his claim was rejected. The federal district court, relying on the state court's decision, also denied his claim.

    Justice Sotomayor concurred in the denial of Tharpe's petition due to Tharpe's failure to present procedural arguments about his claim at an earlier point in federal court proceedings.  However, Justice Sotomayor wrote a statement about the denial of review in order to highlight “the magnitude of the potential injustice that procedural barriers are shielding from judicial review.” She explained:

    It may be tempting to dismiss Tharpe’s case as an outlier, but racial bias is “a familiar and recurring evil.” Pena-Rodriguez, 580 U. S., at ___ (slip op., at 15). That evil often presents itself far more subtly than it has here. Yet [the juror's] sentiments—and the fact that they went unexposed for so long, evading review on the merits—amount to an arresting demonstration that racism can and does seep into the jury system. The work of “purg[ing] racial prejudice from the administration of justice,” id., at ___ (slip. op., at 13), is far from done.

    Read Justice Sotomayor's statement here.


    Other Notable Denials of Review

    On April 15, 2019, the Court without comment denied a petition filed by Charles Rhines (Docket No. 18-8029) a South Dakota death-row prisoner whose jurors made anti-gay statements and relied on homophobic beliefs in deciding to sentence him to death.  Rhines had sought review based on the Supreme Court’s ruling in Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2017), that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires ... the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” He argued that the same constitutional principle should apply to bias based on sexual orientation.  In Rhines's case one juror stated: “we also knew that he was a homosexual and thought that he shouldn’t be able to spend his life with men in prison.” Another recalled a comment during deliberations “that if he’s gay, we’d be sending him where he wants to go if we voted for [life imprisonment without the possibility of parole].  And a third juror remembered “lots of discussion of homosexuality. There was a lot of disgust.”


    On January 22, 2019, the Supreme Court denied the petitions for certiorari of Julius Jones (Docket No. 17-6943) and Termane Wood (Docket No. 17-6891), who were each sentenced to death in Oklahoma County, Oklahoma. Jones and Wood 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 Supreme Court denied Nicholas Acklin's petition for certiorari (Docket No. 18-640) on March 25, 2019. Acklin was seeking review of his Alabama death sentence based on his attorney's conflict of interest.  Acklin's attorney was retained by Acklin's mother and received the majority of his fees from Acklin's father, Theodis Acklin.  Shortly before trial, the attorney discovered that Theodis Acklin had abused Nicholas throughout his childhood.  The attorney discussed the abuse with Theodis, and Theodis threatened to withhold future payment if the abuse was brought up in court.  Instead of informing the court or Nicholas about this conflict of interest, the attorney discussed potential mitigation evidence with Nicholas.  Nicholas signed a waiver purportedly giving up his right to have evidence of abuse presented at the sentencing phase of his trial. 

    At sentencing, Theodis Acklin testified that Nicholas had been raised in a “Christian home” with “good values.” The jury then voted 10-2 to recommend a death sentence.  After the jury's recommendation, Theodis again testified about Nicholas' positive home environment, and the trial judge imposed the death penalty.  The judge reasoned that, unlike “most killers” who are the products of abusive childhoods, Nicholas had chosen to reject the good values with which he had been raised.  In post-conviction proceedings, new lawyers provided evidence of Theodis Acklin's severe abuse, including threatening Nicholas and his family members at gunpoint.  However, the Alabama courts refused to grant relief because of Nicholas's waiver of abuse mitigation.  In his petition for certiorari, Acklin argued that this waiver was tainted by the attorney's undisclosed conflict of interest and that his Sixth and Frourteenth Amendment rights were violated by counsel's conflict.  Legal ethics scholars and former Alabama Appellate Court judges, Alabama Supreme Court justices and Alabama State Bar presidents submitted briefs in support of Acklin's petition.



    Petitions of Interest

    Lotter v. Nebraska, No. 18-8415

    John Lotter was sentenced to death in Nebraska by a three-judge panel in 1995. Lotter’s trial occurred before the Supreme Court held in Ring v. Arizona that the Sixth Amendment guarantees the right to have a jury find all the facts necessary to impose a death sentence.  Legislatures around the country responded to Ring and the court’s 2016 Hurst v Florida decision by amending sentencing statutes to ensure that juries make the ultimate sentencing decision in death penalty cases.  This leaves Nebraska as the only active death penalty state in which judges weigh aggravating and mitigating circumstances and make the final sentencing decision.  In his petition for certiorari, Lotter argues that this outlier status shows that his judge-only sentencing violated the Eighth Amendment.  He also argues that he is entitled to relief based on the Sixth Amendment’s jury trial guarantee.

    The questions presented are:

    • Does Nebraska’s capital sentencing scheme requiring a three-judge panel, rather than a jury, to impose a sentence of death violate the Eighth Amendment to the United States Constitution?
    • Does Nebraska’s capital sentencing scheme violate the Sixth and Fourteenth Amendments to the United States Constitution in light of Hurst v Florida, 136 S. Ct. 616 (2016)

    Read the case-related documents here.