Death-penalty symposium: A court increasingly uncomfortable with the death penalty

Stephen McAllister is the Solicitor General of Kansas and the E.S. & Tom W. Hampton Distinguished Professor of Law at the University of Kansas School of Law.

The Supreme Court this term demonstrated its continuing and increasing discomfort with the death penalty, at least as that sentence is often imposed in America. For the most part, the court went out of its way to reverse the death sentences it considered, and certainly gave little deference to state court decisions.

Most notably demonstrating that proposition are two decisions in cases from Texas. In Buck v. Davis, in an opinion written by Chief Justice John Roberts, the Supreme Court leaped multiple, virtually insurmountable procedural obstacles and standards to allow lower courts to reach the merits of a challenge that indisputably raised concerns, though the concerns were created by the defendant’s own lawyer, not by any action of the state or the prosecutors. True, it is not ideal to have a defendant’s own expert testify that the defendant is more likely to be dangerous in the future because of the defendant’s race, but the procedural posture of the case made that issue very difficult to reach. The court nonetheless found a way.

In Moore v. Texas, the Supreme Court invalidated a death sentence by deciding to survey and utilize the current state of psychological and medical knowledge regarding mental capacity in the course of rejecting a legal test on that subject previously adopted by the Texas courts. Though the issue is not clear-cut, the court was really playing psychologist/psychiatrist/medical expert more than it was interpreting the “law.” As the chief justice put it in his dissent: “[C]linicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment. Today’s opinion confuses those roles ….”

Another example (and the first death-penalty case in which we see a vote by Justice Neil Gorsuch – in dissent) is McWilliams v. Dunn. In Ake v. Oklahoma, the Supreme Court held that a capital defendant who makes a substantial claim that his sanity at the time of the offense was in question is entitled to the assistance of an expert (a psychiatrist) paid for by the state if the defendant cannot afford such assistance. What was not clear from Ake was whether that expert could be a “neutral” expert who would provide information to both the defense and the prosecution, or whether the expert had to be on “the defendant’s team,” so to speak. McWilliams chose the latter option, in a 5-4 decision, with Justice Anthony Kennedy joining the majority, and Roberts, Justice Clarence Thomas, Justice Samuel Alito and Gorsuch in dissent.

Yet another example of a ruling in favor of a capital defendant is the Supreme Court’s very first decision of the term, a per curiam opinion in Bosse v. Oklahoma. In that death-penalty case, the Oklahoma courts rejected a challenge to the admission of evidence from the victim’s family members about their characterization of the defendant and their views on the appropriate sentence. The Oklahoma courts reasoned (quite reasonably) that the Supreme Court’s decision in Payne v. Tennessee – which permitted victims’ families to testify about the circumstances of the murder and the crime’s effect on them – encompassed the evidence at issue in Bosse.

The Supreme Court reversed, emphasizing that Payne had not considered that precise question and that only the court itself could overrule one of its prior decisions (in this instance, Booth v. Maryland, which barred all victim-impact evidence and which Payne substantially overruled). In a concurring opinion, Thomas and Alito agreed with the proposition that only the court can overrule its prior decisions, but pointed out that they were not agreeing that Booth was correctly decided, nor were they necessarily disagreeing with the Oklahoma court that Payne “swept away the analytical foundations” of the decision in Booth.

Similarly, the Supreme Court in a per curiam opinion reversed a decision of the Nevada Supreme Court upholding a death sentence in Rippo v. Baker. In Rippo, the defendant claimed that his trial judge was biased because the judge was the subject of a federal bribery investigation and the state prosecutor’s office involved in the defendant’s case was also assisting the federal investigation. In other words, the defendant feared the judge would be biased in favor of the state prosecutors, apparently in hopes that such favoritism would dampen their enthusiasm for assisting in the investigation of the judge. The judge refused to recuse himself, and the Nevada Supreme Court concluded that there were insufficient grounds to require such recusal because the defendant had provided no evidence of “actual bias” on the part of the judge. The court reversed, concluding: “The Nevada Supreme Court did not ask the question our precedents require: whether, considering all the circumstances alleged, the risk of bias was too high to be constitutionally tolerable.”

In fairness, the Supreme Court did affirm death sentences in two cases this term, but one raised procedural issues that extend well beyond the death-penalty context, a factor that may have motivated some justices otherwise skeptical of the death penalty in general. The first case is Jenkins v. Hutton, in which the Supreme Court slapped down the U.S. Court of Appeals for the 6th Circuit (in a per curiam decision) for evading a clear procedural default on federal habeas review by reasoning that, in light of a faulty jury instruction, the jury might have relied on an invalid aggravating circumstance. The court made clear that the correct inquiry is whether, if given a correct jury instruction, a reasonable jury could have imposed a death sentence. Notably, Gorsuch was part of this decision.

Finally, in Davila v. Davis, another capital case from Texas, the issue was whether ineffective assistance of state postconviction-proceedings counsel could provide cause to excuse the failure of counsel on direct appeal to raise an issue, so that the issue could ultimately be raised in federal habeas proceedings. By a 5-4 vote, with Gorsuch in the majority, the Supreme Court decided that such ineffective assistance is not cause to excuse prior procedural default of an issue. Although Davila happens to be a capital case, the procedural-default issue is by no means limited to death-penalty cases, and thus the rule here has very broad implications for federal habeas review.

What to make of these decisions and this term? A few observations. First, the decisions in Buck, Bosse, and Rippo all seem like “error correction,” not cases that would be “cert-worthy” but for perhaps the fact that they involve the death penalty. Davila may not really count as a death-penalty case because it involves a procedural issue that transcends the capital context. If one puts Davila aside, the Supreme Court ruled in favor of capital defendants in five cases, while ruling in favor of the state in only one. And even that one was a per curiam decision involving a procedural question on which the 6th Circuit flat-out erred, both as a matter of fact and law.

So, overall, it was a good term for the opponents of the death penalty, continuing a trend that has largely been the case for many years now. That said, in the few votes he has cast thus far in death penalty cases, Gorsuch seems likely to be more aligned with Thomas and Alito – who tend to be the most likely to uphold death sentences – than with Kennedy or the chief justice, both of whom seem more likely to side with a capital defendant at times. What this means going forward in death-penalty cases is that the key vote in substantial and controversial cases (surprise, surprise!) still belongs to Kennedy. He was in the majority in all of the court’s 5-4 death penalty rulings this term.

My own view is that four current justices are very uncomfortable with the death penalty as it is implemented and imposed, and one or more of them may eventually adopt the abolitionist position embraced long ago by Justices William Brennan and Thurgood Marshall. The key questions are both whether, and if so, when, they might obtain a fifth vote to end the death penalty in America. That is one more reason why the choice of the next justice to sit on the Supreme Court may be very important to Americans on either side of the death-penalty debate.