Death-penalty symposium: The court keeps treating a fatally diseased death penalty

Brian Stull is a senior staff attorney with the Capital Punishment Project of the American Civil Liberties Union. He filed an amicus brief in support of Bobby Moore in Moore v. Texas.

As Justice Stephen Breyer forecasted two terms ago in Glossip v. Gross, the Supreme Court has continued its project of “patch[ing] up the death penalty’s legal wounds one at a time.” This term, it granted relief in three death-penalty cases, two from the nation’s leading executioner, Texas, and one from the leader in death-row prisoners per capita, Alabama. And it denied relief in a third Texas case (Davila v. Davis). As these cases show, the states’ applications of the death penalty have exposed individuals to execution who should have been protected because of their intellectual disability (Moore v. Texas), who were denied access to adequate tools of the defense (McWilliams v. Dunn), and whose verdicts were infected by racial prejudice (Buck v. Davis). The decisions granting relief are to be celebrated, but they address only the symptoms, not the underlying problem, recognized more than 40 years ago in Furman v. Georgia: Administration of the death penalty is inescapably arbitrary.

Intellectual disability

In Moore, the court did what Texas advocates and developmental-disability advocates had long asked: It struck Texas’ Briseno factors – used to exclude intellectually-disabled prisoners from the Eighth Amendment protection against execution, and named for State v. Briseno, in which Texas’ high criminal court relied for its idiosyncratic definition of mental disability not on current medical science, but on the character Lennie in Of Mice and Men. But the court did much more than that. It rejected other non-scientific factors often employed to deny claims of intellectual disability under Atkins v. Virginia, and reaffirmed that science, not stereotypes, should govern.

A diagnosis of intellectual disability requires three things: 1) significantly subaverarge intellectual functioning (typically measured by an IQ score roughly two standard deviations below the mean); 2) adaptive-functioning deficits; and 3) an onset during childhood, before reaching 18. As the court recognized three years ago in Hall v. Florida, intellectual disability is a condition, not an IQ score, and proper diagnosis thus places great emphasis on the second requirement, related to adaptive functioning.

But before the ink of the 2002 Atkins decision had dried, junk-scientific practices – unrelated to determinations of intellectual disability in other contexts – sprang up across death-penalty states. Before Hall, prosecution experts routinely discounted claims if the defendant had even a single IQ score that fell above a hard cutoff of 70, despite the countervailing views of the medical community. When considering adaptive deficits, many state experts similarly improperly sought to exclude defendants who had any areas of strength and contended, without medical support, that a single area of strength outweighed the individual’s otherwise qualifying deficits in other areas. In some cases, state experts created “strengths” by pointing to performance in institutional (non-community) settings, such as prison, a wholly inappropriate analysis, or argued that deficits possibly caused by mental illness (think schizophrenia rather than intellectual problems) should not count. The prosecution relied on these tactics to argue for the execution of prisoners who would otherwise be deemed intellectually disabled and courts, both in and out of Texas, adopted the prosecutors’ arguments all too often.

In Moore, the court found an opportunity not only to strike down the Lennie-based Briseno factors, but to condemn all of the above practices. Writing for the court, and applying Hall’s directive to look strictly to medical standards for determining intellectual disability, Justice Ruth Bader Ginsburg identified and rejected each of the state’s improper practices as contrary to sound medical judgment. Her opinion should settle many of the current arguments in pending Atkins claims, and help to restore the protection Atkins was meant to provide in the first instance.

Race and the death penalty

For law professors teaching federal habeas-corpus litigation, the procedural posture of Buck reads like a messy issue spotter. To prevail, Texas death-row prisoner Duane Buck had to thread the needle of several doctrines, showing that: (1) A federal district court incorrectly denied his motion, under Federal Rule of Procedure 60(b)(6), to reopen his (previously unsuccessful) federal habeas petition attacking his Texas death sentence; and (2) the U.S. Court of Appeals for the 5th Circuit erroneously denied him a certificate of appealability (3) based on recent Supreme Court decisions that would excuse a prisoner’s procedural default in failing to raise trial counsel’s constitutionally ineffective assistance in state post-conviction review when (4) state post-conviction counsel were themselves ineffective in failing to raise trial counsel’s ineffectiveness.

But the heart of the case was always race and the death penalty. Duane Buck’s death sentence was not based only on the circumstances of his crime and life, but on his skin color as a Black man. An expert in his case, Dr. Walter Quijano, predicted that Buck could pose a threat of future violence if not executed because African-Americans are more likely to commit violent crimes.

Texas had conceded constitutional error in the five other death-penalty cases tainted by similar testimony from Quijano. But Texas sought to defend Buck’s death sentence on the ground that in his case it was defense counsel who introduced Quijano’s noxious testimony (even though the state prosecutor then emphasized this testimony in summation). Writing for the court, Chief Justice John Roberts saw no distinction, holding that Buck’s race was improperly “put to the jury” as a basis for sentencing him to death.

The chief justice wrote, “Our law punishes people for what they do, not who they are.” With that, threading the needle was simple. Trial defense counsel was constitutionally ineffective for presenting Quijano’s pernicious and prejudicial testimony. The district court should have permitted Buck to reopen his federal habeas petition, and the 5th Circuit erred by denying him a certificate of appealability. And, under the court’s (then new) precedent in Trevino v. Thaler, Buck should have been permitted to reopen his case in order to argue that his procedural default of the trial ineffectiveness claim (in his first state post-conviction litigation) was caused by post-conviction counsel’s ineffective failure to argue that trial counsel had been ineffective in presenting Quijano in the first instance. Only woefully unprepared post-conviction counsel could have missed this claim.

Three decades ago, in McCleskey v. Kemp, the court rejected constitutional challenges to the death penalty based on statistical analysis showing the race of the victim to be a substantial factor in determining which guilty offenders in Georgia are sentenced to death. Between then and now, this study has been replicated in many states, while Black and Latino Texas prisoners were being sentenced to death based on Quijano’s pernicious claims, and, as the court found last term in Foster v. Chatman, while Black jurors were being excluded from death-penalty trials based on racial discrimination. Because the death penalty is a direct descendant of lynching, the taint of racial discrimination is endemic. And the Supreme Court will continue to be called upon to cure the incurable.

That gets us closer to the larger problem this term’s cases reflect. The death penalty cannot be healed. McWilliams and Davila yet again show the inadequate representation many poor people facing execution receive – McWilliams at the trial level, where the defendant was denied an appointed mental-health expert to aid in his defense, and Davila at the critical level of direct appeals. The court granted relief in McWilliams. But it denied relief in Davila – not because appellate counsel was constitutionally effective – but because, in a 5-4 vote, it decided that a procedurally defaulted claim of ineffective assistance of appellate counsel could not be excused, and thereby considered in federal habeas review, due to ineffective post-conviction counsel’s failure to raise the claim. As both cases illustrate, across capital death-penalty jurisdictions, ineffective lawyers for the accused have long plagued the proceedings at multiple stages: at trial, on direct appeal, and in state post-conviction review.

Numerically, most problematic cases have come from an earlier era. Two of the prisoners who prevailed this term were sentenced to death before 1990 (Moore in 1980 and McWilliams in 1986) and one before 2000 (Buck in 1997). Nationally, prosecutors won 173, 301 and 265 death sentences per year in those three years.

Of the nearly 3,000 prisoners remaining on American death rows, most come from that earlier era – a large fraction from Texas. If the court were to look at those cases up close, as it has with the cases this term, it would likely find the same problems of ineffective assistance, racial bias and improper denials of Atkins claims.

Even though the same errors persist today, and new ones have arisen, we have generally moved away from executions, imposing only 30 new death sentences nationwide in 2016. But a handful of states still push towards executions. They line up for the gurney increasingly geriatric prisoners, condemned in the earlier era – including the four defendants Arkansas rushed to execute this spring as a lethal-injection drug was expiring. The more these old cases come to the court’s attention in coming terms, the more likely the court will be to realize it can no longer content itself with treating only the symptoms without confronting the larger problem.