United States Supreme Court Decisions: 2018-2019 Term


LAST UPDATED October 2, 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 decisions 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. 


    ROYAL v. MURPHY, No. 17-1107
    Cert. granted: May 21, 2018 
    Argument: Not yet scheduled
    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 Circiut 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. 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.


    Opinions of the Court

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


    Orders of the Court and Related Items

    The Court's 2018-2019 session began the first Monday in October, when the Court released its decisions on whether to review the many cases pending over the summer. More than 130 petitions in death-penalty cases were pending before the Court. As discussed below, the Court declined to review most of those cases and issued orders deferring decision on others.

    The Court has yet to grant certiorari in a death-penalty case this session.  The Court's order lists are located here.


    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


    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.


    As of the Court's September 24, 2018 conference, petitions for writ of certiorari from approximately 135 capital-case dockets were pending before the Court. Eighty-eight of those were from Florida, most resulting from the Florida Supreme Court's decision to apply its ruling in Hurst v. State — which declared unconstitutional death sentences that were imposed on the basis of non-unanimous jury recommendations for death — only to cases that had become final on direct appeal after June 22, 2002.


    The Court rescheduled four of the Florida cases for later conferencing. (These cases remain pending following the Court's October 5th conference.) Here are those cases and the questions presented in their petitions for writ of certiorari:

    Guardado v. Florida, No. 17-9284 (Jesse Guardado)

    1. Does the Florida Supreme Court’s per se harmless-error rule for violations of Hurst v. Florida, 136 S. Ct. 616 (2016), pursuant to which Hurst errors are deemed harmless in every case in which the capital defendant’s pre-Hurst advisory jury unanimously recommended the death penalty—after receiving instructions that the judge would both make the findings of fact necessary for a death sentence and render the final decision on the death penalty—contravene the Eighth Amendment under Caldwell v. Mississippi, 472 U.S. 320 (1985)?   

    2. Does the Florida Supreme Court’s per se harmless-error rule for Hurst violations contravene this Court’s decisions holding that harmless-error review cannot be “automatic and mechanical,” Barclay v. Florida, 463 U.S. 939 (1983), must include consideration of the whole record, see Rose v. Clark, 478 U.S. 570, 583 (1986), and must be accompanied by “a detailed explanation based on the record,” Clemons v. Mississippi, 494 U.S. 738, 740 (1990)?      

    3. Does the Florida Supreme Court’s per se harmless-error rule for Hurst violations, which relies entirely on an advisory jury recommendation that does not meet Sixth Amendment requirements as to any element of a Florida death sentence, contravene the holding of Sullivan v. Louisiana, 508 U.S. 275 (1993)?

    You can read the pleadings filed in the Supreme Court in the case here.


    Philmore v. Florida, No. 17-9556 (Lenard Philmore)                 

    1.  Whether Florida violated Mr. Philmore’s and similarly situated defendants’ Eighth Amendment rights, and Equal  Protection and Due Process rights as guaranteed by the Fourteenth Amendment, by denying the opportunity for full briefing of relevant, life-or-death, Hurst v. Florida, 136 S.Ct. 616 (2016), issues? 

    2. Whether the Eighth and Fourteenth Amendment requires that Mr. Philmore and other similarly situated defendants receive Hurst relief based on this Court’s decision in Caldwell v. Mississippi, 472 U.S. 320 (1985) in light of the evolving standards of decency, Equal Protection, and the Eighth Amendment’s prohibition against cruel and unusual punishment where the advisory panel at the penalty phase of Mr. Philmore’s trial was repeatedly instructed in violation of Caldwell?

    You can read the pleadings filed in the Supreme Court in the case here.


    Franklin v. Florida, No. 18-5228 (Quawn M. Franklin)

    Whether the per se harmless-error rule adopted by the Florida Supreme Court, pursuant to which violations of Hurst v. Florida, 136 S.Ct. 616 (2016) are automatically deemed harmless beyond a reasonable doubt in every case in which the defendant’s advisory jury recommended the death penalty by a unanimous vote, rather than a majority vote, violates (1) this Court’s precedents prohibiting state courts from mechanically denying federal constitutional claims on harmless-error grounds without first conducting an individualized review of the record as a whole; and (2) the Eighth Amendment doctrine discouraging reliance on decisions made by jurors whose sense of responsibility for a death sentence was diminished. 

    You can read the pleadings filed in the Supreme Court in the case here.


    Tanzi v. Florida, No. 18-5160 (Michael Tanzi) 

    Does the Florida Supreme Court’s application of a per se harmless–error rule to violations of Hurst v. Florida, 136 S. Ct. 616 (2016), in every pre–Hurst case in which the capital defendant’s advisory jury, after being instructed that the findings of fact and sentencing decision would be made by the judge alone, voted unanimously to recommended the death penalty, violate the Eighth Amendment under Caldwell v. Mississippi, 472 U.S. 320 (1985)? 2. Does the Florida Supreme Court’s application of a per se harmless–error rule to Hurst violations contravene this Court’s decisions holding that harmless–error review cannot be automatic and mechanical, must include consideration of the whole record, and must be accompanied by a detailed explanation based on the record?

    You can read the pleadings filed in the Supreme Court in the case here.


    110 death-penalty cases remained for consideration during the Court's September 26 conference, 72 of which were from Florida. The Court denied certiorari in 106 of those cases, declining to review them. (You can read the Court's order list here.)

    The Court rescheduled consideration of Wood v. Oklahoma and Jones v. Oklahoma, the two cases discussed in Petitions of Interest, above.

    The Court also rescheduled the cases below. These cases remain pending following the Court's October 5th conference.


    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.


    Townes v. Alabama, No. 17-7894 (Tawuan Townes

    Townes's petition for writ of certiorari describes the factual dispute in the case and the questions presented as follows:

    Tawuan Townes’s capital conviction and death sentence were initially reversed by the Alabama Court of Criminal Appeals based on an instruction that improperly required the jury to presume that Mr. Townes possessed the specific intent to kill, a necessary element of capital murder in Alabama. This jury instruction was contained in a trial record produced and certified by the court reporter present at the trial and then reviewed and relied upon over the next two and a half years by undersigned counsel, the State, and the appellate courts during the drafting of multiple briefs, and oral argument that led to the lower court decision reversing Mr. Townes’s conviction and sentence.

    After this decision, the trial judge informed the appellate court that he had listened to an audiotape of the trial and heard the word “may” and not the word “must” in the jury instruction. The appellate court ordered a second court reporter to transcribe the audiotape of the guilt/innocence phase jury instructions, specifically indicating to the court reporter that the only real issue was whether the judge had said “may” as the judge contended or the word “must” as Mr. Townes contended (resulting in reversal and a new trial). This second court reporter transcribed the judge’s instruction as the intent to kill “may be inferred.” Based upon the modified record, the appellate court affirmed Mr. Townes’s conviction and sentence.

    1.  Did the process by which the Alabama courts amended the certified record after reversible error had been found violate due process and the Eighth Amendment requirement for heightened reliability in capital cases?

    2.  Where there is a substantial risk that the jury was improperly instructed on the critical issue of intent, are the Eighth and Fourteenth Amendments violated?