Death penalty challenges swamp Supreme Court

WASHINGTON — Death came knocking at the Supreme Court's door twice last week, as it has done most weeks since the justices took the bench in early October.

When William Sallie asked for a stay of execution Tuesday because of alleged juror bias, the justices refused, apparently without dissent. Sallie, 50, became the ninth man put to death in Georgia this year, a 40-year high.

When Ronald Smith asked that his execution be blocked Thursday because a judge overrode a jury's recommendation of life without parole, the court deadlocked 4-4. Smith, 45, later heaved and coughed during his 34-minute lethal injection.

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And when Florida's Henry Sireci, Ohio's Romell Broom and South Carolina's Sammie Stokes asked for their death sentences to be reconsidered — because of new evidence, a previously botched lethal injection, and a lawyer's conflict of interest, respectively — the justices delayed action for six weeks or more. On Monday, they were all turned down, but with a biting dissent from Justice Stephen Breyer.

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"Individuals who are executed are not the 'worst of the worst' but, rather, are individuals chosen at random on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race," Breyer said. "The time has come for this court to reconsider the constitutionality of the death penalty."

The five cases illustrate the continuing battle inside the Supreme Court over the nation's ultimate penalty — one imposed and carried out less often each year, but which voters in three states, including California, decided to retain last month.

Forty years after the high court reinstated the death penalty in another Georgia case, the justices are increasingly divided over when it is applied, how it is administered and whether it serves any purpose. Since the turn of the century, they have ended executions for the intellectually disabled, those whose crimes were committed as juveniles, and those who do not commit murder or treason. Last year, Breyer and Justice Ruth Bader Ginsburg said it was time to decide whether capital punishment itself should be abolished.

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Time, however, is not on their side. President-elect Donald Trump soon will nominate the late Justice Antonin Scalia's successor, someone who is virtually certain to support the death penalty. Before his term is over, Trump could get the chance to replace one or more of the five justices who have limited its scope. Three of them — Ginsburg, Breyer and Justice Anthony Kennedy — are long past traditional retirement age.

"The window is narrowing," says Robert Smith of Harvard Law School's Fair Punishment Project, which opposes the death penalty. If Trump names several strong capital punishment proponents, "there's a chance the window closes for a generation."

Until then, it appears the justices will have to wrestle with a series of legal challenges. Already this term, they've overturned a death sentence in Oklahoma because of improper testimony from victims' family members and blocked another Alabama execution that a jury did not agree upon. That state's system, which empowers judges over juries, could go the way of Florida's and get struck down.

Two other cases appear likely to result in further restrictions. During oral arguments this fall on two Texas death sentences, a majority of justices appeared sympathetic to challenges from defendants involving racial discrimination and intellectual disability. More challenges are on the way, including some that simply question whether the range of problems renders capital punishment unconstitutional.

"You're playing whack-a-mole with the death penalty," says Robert Dunham, executive director of the Death Penalty Information Center, which opposes capital punishment. "The pattern that we’re seeing is not just the court reaching out to correct errors, but the court looking at renegade, outlier practices."

Amid decline, a resurgence?

Activists take part in a fast and vigil to abolish the death penalty on June 29, a year after the Supreme Court upheld the use of a controversial lethal injection method. (Photo: Mandel Ngan, AFP/Getty Images)

The high court's role in the gradual decline of capital punishment has been relatively minor. Far more important have been historic reductions in new death sentences — from about 300 annually in the 1990s to fewer than 50 a year today — and executions, down from 98 in 1999 to just 20 this year.

Forty-one states have not executed anyone in the last four years. The number of states that carried out executions dropped from nine in 2013 to seven, six and just five this year. Only about 16 of the nation's more than 3,000 counties dole out capital sentences regularly.

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"The death penalty is driving itself to extinction," says Brandon Garrett, a professor at the University of Virginia School of Law. In an upcoming research paper that looks at every U.S. death sentence from 1990 to 2015, he says, "What remains of the American death penalty is quite fragile and reflects a legacy of racial bias and idiosyncratic local preferences.”

But voters last month staged a capital punishment comeback of sorts, defeating an abolition effort in California, restoring it to the books in Nebraska following legislative repeal, and adding it to the state constitution in Oklahoma.

"It means we're going in the other direction," says Kent Scheidegger, general counsel at the conservative Criminal Justice Legal Foundation. "The other side is not making progress. They are slipping."

That's not the case in state supreme courts, where the death penalty has been struck down recently in Florida, Delaware and Connecticut. The Florida ruling, if made retroactive, could affect nearly 400 inmates on death row.

At the Supreme Court, issues involving overzealous prosecutors, inadequate defense lawyers, and the race or mental capacity of defendants have kept the justices busy this fall:

► On Oct. 5, a majority of justices seemed convinced during oral argument that Texas' Duane Buck deserved a reprieve after one of his own witnesses testified he would be more dangerous in the future because he is black. Even conservative Justice Samuel Alito said the testimony was "indefensible."

► Six days later, the court ruled unanimously that Shaun Bosse's death sentence must be reconsidered because Oklahoma courts ignored Supreme Court precedent by allowing his murder victims' family members to recommend execution over life without parole.

► On Oct. 17, the court refused to hear an appeal from Clark Elmore of Washington state, who wanted his death sentence struck down because of inadequate representation in court. In a 15-page dissent, Justice Sonia Sotomayor, with Ginsburg's support, said "whatever flaws do exist in our system can be tolerated only by remaining faithful to our Constitution’s procedural safeguards."

► On Nov. 3, five justices agreed to block the execution of Alabama's Tommy Arthur, who had raised objections about the state's lethal injection protocol and its system of letting judges overrule juries on sentencing. Chief Justice John Roberts added his vote to those of the four liberal justices "as a courtesy" so that the case could be considered for review.

► During another oral argument on Nov. 29, a majority of justices appeared likely to block Texas from executing Bobby Moore by relying on an outdated definition of intellectual disability. Breyer warned that different standards for determining mental impairment will lead to "disparities and uncertainties, and different people treated alike, and people who are alike treated differently."

"The Supreme Court seems more sensitive to the injustices perpetrated in the name of the death penalty and more inclined to regulate its use," says Kathryn Kase, executive director of Texas Defender Service, which represents death row inmates. "If Buck and Moore prevail ... that will only fuel the trend towards reduced use of the death penalty."

Supreme Court Justice Stephen Breyer, the high court's leading opponent of the death penalty, gives a talk at Yale Law School in New Haven earlier this year. (Photo: Peter Hvizdak, AP)

'Reserved ... for those unlucky few'

The next step for the court, beyond juveniles and the intellectual disabled, may be to set a national standard for defendants with severe mental illness. The American Bar Association, American Psychological Association, National Alliance on Mental Illness and others are mounting a national campaign to take capital punishment off the table for that population.

"We ... have a duty to fit the punishment to the offender," says Hilarie Bass, the ABA's president-elect. Studies have estimated that about 20% of the nearly 3,000 inmates on death row have a severe mental illness, she says.

Some opponents believe the court may go further in the future and declare the death penalty unconstitutional. They argue that it no longer serves as a deterrent to crime because of the years or decades those convicted will spend languishing in prison during myriad state and federal court appeals. They also contend the nation's standards of decency have changed since capital punishment's heyday.

“I think it is very plausible that if there are five votes to end the death penalty, it could be with the people who are on the court right now,” Smith says.

In addition to Breyer and Ginsburg, that would require support from Sotomayor and Justices Elena Kagan and Anthony Kennedy — the perennial swing vote on the court. Kennedy has written many of its decisions on juveniles and the intellectually disabled and has been a vocal critic of decades-long solitary confinement. Kagan joined Breyer on Monday in dissenting from the court's decision not to hear the Ohio case on lethal injections.

It also would require the court hearing a case that presents the central question: Does the death penalty constitute cruel and unusual punishment under the 8th and 14th Amendments? One such case is that of Marcus Reed, convicted in 2010 of killing three people who broke into his home in Caddo Parish, Louisiana — for many years the nation's leader in death sentences per capita.

"Capital punishment is now constrained to a dwindling handful of locations, reserved not for the most culpable offenders, but for those unlucky few prosecuted under anachronistic circumstances," his lawyer, Ben Cohen, wrote in his Supreme Court filing last month.

"The time has come to assess whether the evolving standards of decency that mark the maturation of a civilized society now establish that a life sentence without parole is a sufficiently severe punishment."