U.S. Supreme Court

Supreme Court Narrowly Upholds Use of Lethal Injection Drug

On June 29, the U.S. Supreme Court held (5-4) in Glossip v. Gross that Oklahoma inmates "failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment." Three inmates on Oklahoma's death row had challenged the state's use of midazolam as the first drug in a three-drug protocol, saying that it "fails to render a person insensate to pain." In a narrow decision written by Justice Samuel Alito, the Court deferred to a District Court ruling upholding the use of midazolam. Justice Alito said that, in order to prevail, the inmates would have had to identify a "known and available alternative method" that has a lower risk of pain. The decision will allow states that use midazolam, including Oklahoma, to resume executions, though they can still consider alternatives. In a sweeping dissenting opinion raising deep concerns about the death penalty itself, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, said, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution....Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use."

As Court Prepares to Hear Juror Exclusion Case, A Look at Tactics That Exclude Blacks from Juries

This fall, the U.S. Supreme Court will hear a Georgia case, Foster v. Humphrey, in which an all-white jury sentenced a black man to death after prosecutors struck every black prospective juror in the case. The Court will determine whether prosecutors violated the Court’s 1986 decision in Batson v. Kentucky, which banned the practice of dismissing potential jurors on the basis of race. In anticipation of the case, The New Yorker published an analysis of tactics used to evade Batson challenges by providing race-neutral reasons for striking jurors. In Philadelphia, a training video told new prosecutors, "When you do have a black juror, you question them at length. And on this little sheet that you have, mark something down that you can articulate later. . . . You may want to ask more questions of those people so it gives you more ammunition to make an articulable reason as to why you are striking them, not for race." In the 1990s, prosecutors in North Carolina -- whose use of peremptory strikes have been held to violate that state's Racial Justice Act -- held training sessions featuring a handout titled, "Batson Justifications: Articulating Juror Negatives." Defense attorneys can challenge these reasons, but such challenges are rarely successful. Stephen Bright, president of the Southern Center for Human Rights, who is representing Foster, said, "You’re asking the judge to say that the prosecutor intentionally discriminated on the basis of race, and that he lied about it. That’s very difficult psychologically for the average judge.” Justice Thurgood Marshall recommended banning peremptory strikes so as to stop racial bias in jury selection. Louisiana Capital Assistance Center director Richard Bourke suggests a more politically realistic reform: track the racial makeup of juries in order to raise public awareness of bias.

Supreme Court Rules in Favor of Intellectually Disabled Louisiana Defendant

CORRECTION:  On June 18, the U.S. Supreme Court announced its decision in Brumfield v. Cain, a Louisiana death penalty case dealing with intellectual disability. The Court held that the federal district court was entitled to conduct an evidentiary hearing to determine whether Kevan Brumfield has intellectual disability and is therefore ineligible for execution. It reversed a ruling of the United States Court of Appeals for the Fifth Circuit that would have deferred to a Lousiana state court decision permitting Brumfield to be executed without a hearing on his claim of intellectual disability. After an extensive evidentiary hearing, the district court held that Brumfield was intellectually disabled.  By a vote of 5-4, the Supreme Court ruled that Louisiana had unreasonably determined the facts when it decided that Brumfield had not presented sufficient evidence of intellectual and adaptive impairments to warrant an evidentiary hearing in state court. Writing for the majority, Justice Sotomayor said, "After Atkins was decided, petitioner, a Louisiana death-row inmate, requested an opportunity to prove he was intellectually disabled in state court. Without affording him an evidentiary hearing or granting him time or funding to secure expert evidence, the state court rejected petitioner’s claim. That decision, we hold, was 'based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.' Petitioner was therefore entitled to have his Atkins claim considered on the merits in federal court." The case returns to the Fifth Circuit for consideration of whether the district court's findings are supported by the record.

Missouri Execution Clouded by Concerns About Mental Illness and Lethal Injection

On June 9, Richard Strong was executed in Missouri, despite the fact that four Justices of the Supreme Court would have granted him a stay and despite evidence that he suffered from severe mental illness. A broad challenge to Missouri's secretive lethal injection process (Zink v. Lombardi) has yet to be resolved, and Justices Ginsburg, Breyer, Sotomayor, and Kagan voted to stay Strong's execution because of that challenge. However, five votes are needed to stay an execution. In addition, Strong's original trial counsel failed to adequately explore his mental illness and the mental problems in his family. After a fuller investigation, Strong was diagnosed with major Axis I illnesses, including: Major Depression, Obsessive-Compulsive Disorder (OCD), Post-Traumatic Stress Disorder (PTSD) and Schizotypal Personality Disorder, and Dissociative Identity Disorder. Strong's counsel asked the Supreme Court to spare his life because society's standards of decency have turned away from executing people with such severe mental problems. Strong was convicted of murdering his wife and two-year-old daughter in a brutal manner. He acknowledged the crime but could not understand why he did it. Another child was left untouched. Now 14 years old, she pleaded for mercy for her father. Gov. Jay Nixon denied clemency.

Supreme Court to Review Exclusion of Black Jurors in Georgia Capital Case

The Supreme Court has agreed to hear the case of Timothy Foster, an African-American defendant who was sentenced to death by an all-white jury after Georgia prosecutors had struck every black prospective juror in his case. On May 26, the U.S. Supreme Court granted review in Foster v. Humphrey to determine whether the prosecution’s actions violated the Court’s 1986 decision in Batson v. Kentucky, which banned the practice of dismissing potential jurors on the basis of race. Foster challenged the prosecution’s jury strikes as racially discriminatory at the time of jury selection, but the trial court permitted the strikes. Nineteen years after the trial, his lawyers obtained the prosecutors' notes from jury selection, which contained information that contradicted the “race-neutral” explanations for the strikes that the prosecution had offered at trial. 

Justice Stevens Says Death Penalty Unnecessary, Wasteful, and Creates Higher Risk of Error

In a discussion at the George Washington University School of Law, retired Supreme Court Justice John Paul Stevens said the death penalty creates a higher risk of error than other criminal cases and is unfair, unnecessary, and a "terrible waste" of resources. Using the Boston marathon bomber trial as an example, Justice Stevens said jury selection procedures in capital cases produce juries who are "not representative of the community." He said that, under these procedures, "most of the 75%" of Bostonians who opposed the death penalty "could be challenged for cause and do not make it" onto the jury.  "That’s one reason that the death penalty is much more unfair than we thought it was at the time back when we decided the three cases" that reinstated the death penalty in 1976 after the Court had previously ruled its application unconstitutional. Justice Stevens went on to say, "I had expected that the procedures would be more protective of the defendants in death cases than in ordinary criminal cases. And in several respects, ... they in fact are more pro-prosecution. And so the risk of error is larger in death cases than it is in other cases, and that certainly can’t be right." Finally, he compared the death penalty unfavorably to the alternative of life without parole: "it's really not necessary because life imprisonment without parole protects the public at least as well as execution does and so the justification for the death penalty is diminished. And I think if you make a cost-benefit analysis – the cost of the trials and all the rest – it is a terrible waste of society’s resources to have these capital trials that go on for so long and produce an awful lot of unfortunate results."

Supreme Court Hears Challenge to Oklahoma's Lethal Injection Protocol

On April 29, the U.S. Supreme Court heard oral argument in Glossip v. Gross, a case challenging the use of midazolam in lethal injections. Midazolam was used as the first drug in three botched executions in 2014, including the execution of Clayton Lockett in Oklahoma exactly one year ago. Prisoners on Oklahoma's death row argued that midazolam should not be used in executions because it could not reliably anesthesize the prisoner to prevent him or her from experiencing extreme pain when the second and third drugs in Oklahoma's execution protocol were injected. The Justices questioned both sides intensely, with the more conservative justices generally favoring the state's arguments and the more liberal justices favoring the prisoners' arguments. Justice Elena Kagan compared the effects of potassium chloride, the third execution drug, to being burned alive, saying, "Suppose that we said we’re going to burn you at the stake, but before we do, we’re going to use an anesthetic of completely unknown properties and unknown effects." Conservatives on the Court criticized the case as a veiled attacked on the death penalty itself. The Court is expected to decide the case before the current term ends in June. 

Supreme Court Grants Review in Three Kansas Cases; Hears Case on Intellectual Disability

On Monday, March 30, the U.S. Supreme Court granted review of three Kansas death penalty cases and heard oral argument in a Louisiana case that presented questions on the role of the federal courts in determining whether a state prisoner who faces the death penalty has intellectual disability. In the cases of Kansas v. Reginald Carr, Kansas v. Jonathan Carr, and Kansas v. Sidney Gleason, the Court granted review of the Kansas Supreme Court's decisions overturning the defendants' death sentences because their sentencing juries were not told that, unlike proof of other facts in the case, the defendant did not have to prove mitigating circumstances (reasons for life) beyond a reasonable doubt. It also granted review in the Carr cases of the state court's decision that the brothers should not have been tried together in the penalty phase of their capital trial because some of their mitigating evidence was mutually antagonistic and the jury should not have considered this evidence against the other brother. In Brumfield v. Cain, the Court heard argument in the case of a Louisiana man, Kevan Brumfield, sentenced to death before the Supreme Court ruling in Atkins v. Virginia banned the execution of defendants with mental retardation (now intellectual disability). (For more on the Brumfield case, click here.)  The Supreme Court will determine whether the federal courts must defer to a decision of the state courts that rejected his claim of intellectual disability based solely upon the evidence presented at his trial or whether to credit the federal district court's finding after a seven-day evidentiary hearing that Mr. Brumfield is intellectually disabled and may not be executed.

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