Returning to ongoing disputes over the role of race in criminal punishment and in politics, the Supreme Court on Monday added new cases for decisions at its next Term — one involving the death penalty in Texas, the other involving the drawing of new maps for election of members of Virginia’s state legislature.
In another Texas capital punishment case, the Court agreed to try again to sort out when an individual is too disabled intellectually to be sentenced to death. The Justices chose not to consider a second issue raised in that case: the constitutionality of prolonged stays on death row, especially on the theory that this treatment causes severe psychological harm. A month ago, over Justice Stephen G. Breyer’s dissent, the Court refused to hear that question in a California case. It appears that there are not four votes (the minimum number required) to grant review of that particular issue.
In the newly granted case of Buck v. Stephens, the Court gave itself the option of weighing a death sentence that may have been influenced by a racist comment by an expert who had been called to the witness stand by a defense lawyer, not by prosecutors. The expert had made similar comments in several other Texas cases, and the state had taken action to remedy those, but did not do so in the case of Duane Edward Buck of Houston.
Buck’s new appeal focused on the same legal complaint that a divided Court refused to consider five years ago: that his defense lawyer failed in his constitutional duty by calling to the stand a psychologist, who told the jury that Buck would be likely to be dangerous in the future, if not put to death, because of his race; Buck is black. The question of future dangerousness was a central issue for Texas juries in deciding for or against a death sentence.
The witness, Dr. Walter Quijano, had been summoned by Buck’s trial lawyer to testify on the dangerousness issue. He said flatly that his studies had shown that black people and males were more likely to be a danger to the public. Under questioning by Buck’s lawyer, he reviewed the findings of his report.
Buck was sentenced to death for murdering his girlfriend in front of her children, along with the murder of a man. Both crimes occurred in 1995. When Buck took an appeal to the Supreme Court in 2011, five Justices commented negatively about the witness’s comment, but three of those five said the blame lay with Buck’s lawyer for calling that witness and eliciting that testimony. Two Justices would have granted review at that time.
As Buck’s case returned to the Court this Term, it focused on whether the U.S. Court of Appeals for the Fifth Circuit had raised too high a barrier before Buck could raise anew the question about Dr. Quijano’s testimony. Buck’s current lawyers have been attempting to reopen his case to raise the same racial discrimination issue. That essentially procedural question may be at the center of the Court’s coming review, but the underlying race bias claim remains in the case.
The other race case that the Court agreed on Monday to review, Bethune-Hill v. Virginia State Board of Elections, brings the question of racial gerrymandering in redistricting plans back to the Court for the second time this Term — and in the second case involving Virginia. The other case, Wittman v. Personhubballah, involved congressional redistricting; it ultimately ended last month, when the Justices found that none of the challengers had a real legal stake in the case and dismissed it.
The new case focused on a plan that the Virginia legislature drew up in 2011, following a federal census, for the one hundred seats in its lower chamber, the House of Delegates. The challenge in federal court to the plan focused on twelve districts that were assigned a majority population of minorities. The claim was that each of those districts was the result of racial gerrymandering — in particular, the legislature’s decision to start with the premise that those districts should have at least a fifty-five-percent minority population.
The Supreme Court has ruled several times that it is unconstitutional to draw up districting maps if race was the “predominant factor” in drafting the boundaries and deciding who should or should not be included in given districts. In the House of Delegates case, a three-judge federal district court ruled that race was, in fact, the predominant factor in a single district, but even that one was not unconstitutional because it had been done to avoid violating federal civil rights law.
The challengers apparently enhanced their chances of getting their complaint heard by the Supreme Court by pointing out, in a later filing, that the decision in their case conflicted directly with a federal court’s ruling finding racial gerrymandering in the creation of two congressional districts in North Carolina.
The Supreme Court issued a major ruling on the racial gerrymandering issue last Term, in the case of Alabama Legislative Black Caucus v. Alabama. Apparently, however, the Court is not yet satisfied that the decision went far enough to clarify its views on that subject.
The Court’s order on Monday granting review of Moore v. Texas will continue the Justices’ exploration of the basic question of when a person convicted of murder has such mental incapacity that he cannot be given a death sentence. A 2002 decision, Atkins v. Virginia, laid down the basic constitutional rule that intellectual disability is a condition that bars the death penalty.
That decision, however, left it to the states to determine just how to determine intellectual disability. The result has been the lack of a uniform approach. The Court tried in 2014, in the case of Hall v. Florida, to sort out further the scope of states’ options on this point, and that ruling stressed the need for states to rely on modern diagnostic standards, not simple IQ test scores.
In Texas, the state’s highest court in 2004 laid down its own standard on that question, relying upon a 1992 definition in the professional medical community — a standard that the same community now regards as out of date, because it does not focus enough on clinical evaluations of each individual.
The validity of the Texas approach was challenged in an appeal by lawyers for Bobby James Moore of Houston. He was convicted and sentence to death for the 1980 murder of a grocery store clerk during a robbery. Over the years, his attorneys have pursued various challenges to his conviction and death sentence. After the Supreme Court decided the Atkins case, his lawyers began a new challenge to the standards used to determine eligibility for a death sentence. The Texas Court of Criminal Appeals, the state’s highest court for criminal law, insisted that — until the state legislature stepped in — judges in Texas were still required to rely upon the 1992 standards.
Each of the three newly granted cases will come up for hearing and decision in the Court’s next Term, starting in October.