United States Supreme Court Decisions: 2018-2019 Term

LAST UPDATED February 19, 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

    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: 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.

    Opinions of the Court

    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 Texas Court of Criminal Appeals again concluded that Moore had not proven significant deficits in adaptive functioning.  Moore appealed to the US Supreme Court, and taking unusual position, the Harris County Prosecutor’s Office agreed that Moore had proven his intellectual disability.  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

    Grants of Review, With Statements by Individual Justices

    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 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.


    Other Notable Denials of Review

    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.