Petitions of the week: Three unresolved death-penalty questions

This week we highlight cert petitions that, among other things, ask the Supreme Court to clarify three issues related to capital punishment: one involving ineffective assistance of counsel, one involving claims of intellectual disability, and one involving the roles of judge and jury during capital sentencing.

Whatley v. Warden involves a capital defendant’s claim for ineffective assistance of counsel under the Sixth Amendment. After being convicted of a murder in connection with an armed robbery, Frederick Whatley appeared before the jury for the sentencing phase of the trial with visible shackles around his arms and legs. His attorney did not object to Whatley’s shackling, and Whatley received the death penalty. The Georgia Supreme Court rejected Whatley’s claim that his attorney’s failure to object to the visible shackles prejudiced his defense, even though the Supreme Court has called a defendant’s shackling before a jury “inherently prejudicial” under the 14th Amendment. The U.S. Court of Appeals for the 11th Circuit ruled that the Georgia court did not have to consider the Supreme Court’s shackling cases in deciding a claim of ineffective assistance of counsel. Arguing that the federal courts of appeals are split on this question, Whatley’s petition asks the justices to review the 11th Circuit’s decision.

Kentucky v. White asks the Supreme Court to decide whether a capital defendant can waive claims of intellectual disability under Atkins v. Virginia, a 2002 case in which the court held that executing a person who is mentally disabled is cruel and unusual punishment under the Eighth Amendment. In 2014, a jury convicted Larry White of rape and murder, for which he received the death penalty, and White’s attorneys brought an Atkins claim seeking to overturn his sentence. After the Supreme Court’s 2017 decision in Moore v. Texas – which clarified how states should assess whether a capital defendant has an intellectual disability – the justices remanded White’s then-pending petition to the Kentucky Supreme Court for reconsideration. After concluding that a defendant cannot waive a claim of intellectual disability, the Kentucky court ordered an evidentiary hearing to determine whether White in fact has an intellectual disability. Kentucky now wants the justices to decide whether a defendant can waive claims of intellectual disability under Atkins. The state argues that White has repeatedly indicated that he does not wish to pursue an Atkins claim.

Finally, Poole v. Florida involves the application of the Supreme Court’s 2016 ruling in Hurst v. Florida, which found that Florida’s capital-sentencing scheme violated the Sixth Amendment because it permitted a judge, rather than the jury, to weigh aggravating and mitigating factors before entering a sentence of life or death. Mark Poole, who was sentenced to death in Florida for a 2001 murder and robbery, argued that his sentence violated Hurst, and a trial court agreed, vacating his sentence. The state appealed, and the Florida Supreme Court reversed the trial court’s order. Poole’s petition asks the justices to review the Florida Supreme Court’s decision.

These and other petitions of the week are below:

Kentucky v. White
20-240
Issue: Whether a capital defendant can waive a claim of intellectual disability under Atkins v. Virginia and its progeny.

Poole v. Florida
20-250
Issues: (1) Whether the Florida Supreme Court erred in reinstating a capital sentence issued under Florida’s pre-2016 scheme, in contravention of the Supreme Court’s holding in Hurst v. Florida that such sentences violate the Sixth Amendment because the jury did not make the requisite death-eligibility findings, including that aggravating circumstances outweigh mitigating circumstances; and (2) whether the Florida Supreme Court violated the Eighth Amendment in reinstating a capital sentence lacking a unanimous jury recommendation of death and based on a guilt-phase jury finding rendered without awareness of the consequences for capital sentencing.

El Paso County, Texas v. Trump
20-298
Issues: (1) Whether the executive branch’s expenditure of $2.5 billion on border-wall construction violates the Consolidated Appropriations Act and thus the Constitution’s appropriations clause; and (2) whether the Department of Defense’s transfer of $2.5 billion between agency appropriations accounts violates Section 8005 of the DOD Appropriations Act and thus the Constitution’s appropriations clause.

Hennis v. United States
20-301
Issues: (1) Whether the offenses for which the petitioner, Timothy Hennis, was tried and acquitted in state court constituted offenses “for which [he] cannot be tried in the courts of . . . any State”; (2) whether 10 U.S.C. § 803(a) is unconstitutional insofar as it allowed the government to court-martial Hennis only because the double jeopardy clause would have barred his retrial in a state court; and (3) whether the Constitution bars the military from subjecting servicemembers to capital trials for non-military offenses.

United States v. Vaello-Madero
20-303
Issue: Whether Congress violated the equal-protection component of the due process clause of the Fifth Amendment by establishing Supplemental Security Income — a program that provides benefits to needy aged, blind and disabled individuals — in the 50 states and the District of Columbia, and in the Northern Mariana Islands pursuant to a negotiated covenant, but not extending it to Puerto Rico.

World Programming Ltd. v. SAS Institute Inc.
20-304
Issues: (1) Whether the All Writs Act or Federal Rule of Civil Procedure 69 permits federal courts to fashion novel remedies to enforce federal money judgments, such as an injunction that forbids the judgment debtor from licensing its software for use in the U.S. until the judgment is paid, to “incentivize” payment; and (2) whether and under what circumstances federal courts may invoke the All Writs Act to enjoin enforcement of a foreign money judgment, even within the nation that issued the judgment.

Whatley v. Warden
20-363
Issue: Whether a state court unreasonably applies federal law when, in determining whether a person suffered prejudice as a result of ineffective assistance of counsel, it disregards the Supreme Court’s case law recognizing that shackling is inherently prejudicial.