SCOTUS for law students: The Supreme Court and the death penalty

Death penalty cases have long been among the most difficult and divisive for the Supreme Court. With the possibility that federal executions may resume this year for the first time since 2003, the court’s role in these cases may grow even more complex.

The Supreme Court has three primary roles in death penalty cases. First, the court reviews habeas corpus appeals by death row inmates raising claims that their trial or death sentence was carried out in violation of their constitutional rights. Sometimes states appeal these cases to the Supreme Court when inmates have won in the lower court. Second, the court receives petitions challenging the constitutionality of the method of execution. Third, and most dramatically, the court handles emergency applications to stay executions pending additional court proceedings.

There is a fourth type of death penalty proceeding, a direct appeal by a prison inmate from the conviction and sentence that have been upheld by a state’s highest court. It is extremely rare for the Supreme Court to agree to hear a direct appeal, however.

Some background is in order. The landscape of the current death penalty practice begins with the Supreme Court’s invalidation of state death penalty laws in 1972 because they were applied in arbitrary and racially discriminatory ways. Prior to 1972, states administered the death penalty with relatively little interference from federal courts. Historically, states used a variety of execution methods from hanging to firing squads to electrocution to gas chambers.

After the Supreme Court halted executions in 1972, states revised their death penalty statutes, and in 1976, the court upheld some of the new generation of capital punishment laws. Executions resumed, but the Supreme Court has faced an unrelenting parade of constitutional questions about when the death penalty may fairly be imposed. Challenges have invoked the Eighth Amendment prohibition on “cruel and unusual punishment” and the 14th Amendment guarantees of “due process” and “equal protection.” They have involved a wide range of state laws and practices as well as the application of federal laws regulating habeas corpus petitions in federal court.

The death penalty has long divided the justices. As they left the court or soon after they retired, Justices Harry Blackmun, Sandra Day O’Connor and John Paul Stevens all expressed doubts about whether the death penalty system can operate fairly in the United States. Justices William Brennan and Thurgood Marshall concluded while they were on the court that the death penalty was unconstitutional in every application, and they issued a standard dissent in all capital cases from 1976 until they retired, Brennan in 1990 and Marshall in 1991.

Death penalty litigation today is primarily about state death penalty laws because the federal capital punishment statute has rarely been used since it was revived by Congress in 1988. The last execution for a federal crime in 2003 was of a soldier, Louis Jones Jr., for the rape and murder of another soldier. An effort by Attorney General William Barr to ramp up the federal death penalty, announced last July, will add a new focus and has already generated several lawsuits.

In the context of challenges over state laws and state capital prosecutions, the Supreme Court frequently is asked to review a variety of issues. These include claims that inmates were not provided effective representation by their lawyers, known as “ineffective assistance of counsel,” or that prosecutors unconstitutionally struck potential jurors based on their race to try to achieve a jury more likely to convict a defendant. Other cases have raised concerns about the admissibility of new evidence that tends to show an inmate’s innocence but that may be filed after statutory deadlines have passed.

All of these claims are generally raised through the procedure known as “habeas corpus,” a civil proceeding used to raise questions about constitutional issues that arise during a criminal prosecution. Typically, a state death row inmate may first appeal his conviction and sentence in state court, asserting his innocence or the absence of sufficient evidence. That direct appeal may go all the way to the U.S. Supreme Court but will rarely be granted. If that appeal fails, a state inmate may then file a state habeas corpus petition and must exhaust state appeals before filing a habeas corpus petition in federal district court. The federal petition will be considered by a federal district court and a federal appeals court and then may be appealed to the Supreme Court. The focus of these habeas corpus petitions, known as collateral review, is to determine whether the death row inmate has identified constitutional errors in the trial or sentence that may require a new trial.

The Supreme Court rarely grants review and oral argument in federal habeas cases. And the court is even less likely to agree to review a successive habeas petition, basically a second or third try at habeas. Both the court and federal statutes take an extremely skeptical view of claims that prison inmates say are new and could not have been raised in a prior federal habeas review.

In the second category of capital cases, the justices consider claims, also raised in habeas corpus petitions, challenging the constitutionality of particular methods of execution. In recent years, these appeals have focused on the combinations of drugs that states use to execute inmates by lethal injection. States moved away from electrocution and lethal gas as society concluded that these methods were needlessly cruel and painful. Lethal injection has become the main method of execution, prompting debate over what drugs work for this purpose. Drug shortages, in some instances caused by manufacturers’ reluctance to have their drugs used for executions, have complicated the debate. There have also been questions about whether some drugs are more effective than others at carrying out an execution without extreme pain to the inmate.

The third category of cases, stay applications, is the stuff of Supreme Court drama. When a state sets an execution date, an inmate may still be in the midst of appeals or habeas petitions or may file a new habeas petition. Without a court order stopping an execution while appeals or habeas petitions are pending, an inmate could face death before judicial proceedings are concluded. Typically, an inmate who is still pursuing a direct appeal or who has a first habeas petition pending in federal court is entitled to a stay, which is a court order freezing the status quo to prevent execution while the appeals are pending.

Occasionally this process slips up in the lower courts and the Supreme Court needs to issue a stay of execution. More often, the Supreme Court is asked to consider staying an execution while a death row inmate is pursuing a second or subsequent habeas petition. These petitions – and the related requests to delay the execution – are usually not received favorably by a majority of the court. Conservative justices tend to view successor petitions as just an attempt to delay execution, raising issues that could have been raised earlier and rarely worthy of substantive consideration. Liberal justices are sometimes more sympathetic to newly raised claims.

A stay application in a death penalty case is filed with the justice who is assigned to handle emergency applications from the federal circuit in which the case originated. But it has been standard practice for all justices to refer capital-case stay requests to the full court. Five votes are needed to grant a stay.

Most of the time this follows an orderly process. When an execution date is approaching, the state and the inmate’s defense lawyer are supposed to be in touch with the deputy clerk of the Supreme Court who handles death cases. The defense lawyer is expected to keep the clerk informed of any applications, specifically stay applications, the lawyer intends to file.

This process has evolved from a few decades ago, when a stay application for an inmate who was hours, sometimes minutes, away from death might arrive without warning at night over a fax machine. Law clerks and justices might have long since left the building, but the clerks would have to return to review the application and in turn would have to call to wake up the justices to consider the stay request. Lawyers were left in the dark, not knowing who was working on the application  or when the court might act.

Today, a stay application may still come in at night and close to the time of execution. But the court will likely be aware it is coming, and law clerks will remain at the court to handle the papers and will have a plan for discussing the request with their justices. Deep disagreements still persist, however. Christopher Lee Price was executed last May in Alabama after the Supreme Court aired bitter disagreement in a 5-4 vote on whether Price deserved a stay because a federal judge had scheduled a trial over the state’s planned mix of drugs.

One significant point of controversy about the death penalty is that, according to the Death Penalty Information Center, 167 death row inmates since 1973 have been exonerated and released. This increasing frequency of evidence of erroneous capital convictions has prompted numerous states to adopt death penalty moratoria or even to scrap use of the death penalty.

The federal death penalty may present all of these challenges and more for the justices. Barr announced on July 25, 2019, that he had directed the Federal Bureau of Prisons to schedule execution dates for five federal inmates in December 2019 and January 2020, prompting immediate challenges.

In response to one lawsuit by four of the five inmates, a federal district court judge in Washington, D.C., issued an injunction in November staying all federal executions. Judge Tanya Chutkan found a problem with Barr’s plan for a uniform approach to the executions: The federal death penalty law was amended in 1994 to return to an old requirement that federal executions be carried out consistent with the law of the state in which the execution occurs. Barr proposed that all federal executions use a single drug for lethal injection, pentobarbital. That plan is not consistent with the execution protocol in some of the states where federal prisoners are held.

After the Justice Department appealed to the U.S. Court of Appeals for the District of Columbia Circuit, a three-judge panel last December declined to disturb the injunction, pending further court appeals. The Justice Department then asked the Supreme Court for permission to carry out the executions. On December 6, the Supreme Court also left the injunction in place, preventing the executions until the question of how closely the Justice Department must track state laws in carrying out the death penalty is resolved. Justice Samuel Alito, joined by Justices Neil Gorsuch and Brett Kavanaugh, wrote a brief separate statement urging the D.C. Circuit to decide the issue with “appropriate dispatch,” suggesting that 60 days should be sufficient.

The D.C. Circuit heard argument in the case on January 15. Whenever the three-judge panel rules, one thing is for sure: The Supreme Court will have one more death penalty case to resolve.