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Death-penalty symposium: Even with this conservative court, some progressive wins remain possible

Brianne Gorod is Chief Counsel at the Constitutional Accountability Center. She filed an amicus brief in support of defendant Duane Buck in Buck v. Davis.

With the election of Donald Trump as president and the addition of his Supreme Court nominee Justice Neil Gorsuch to the bench, there’s no question: The conservative court is back. But even with this very conservative Supreme Court, there can still occasionally be progressive victories, at least for now. This year’s death penalty cases provide a key example: There were a number of progressive wins, but only by the narrowest of margins. In this area, as in so many others, Justice Anthony Kennedy’s vote is often key.

One of the most high-profile of this year’s death penalty cases came early in the term in Buck v. Davis, an important case about the role of race in our criminal justice system. In Texas, a person may be sentenced to death only if a jury concludes that he or she is likely to commit violent acts in the future that would constitute a continuing threat to society, and at Duane Buck’s sentencing hearing, the key question was whether Buck was likely to do so. Stunningly, Buck’s own attorney called a purported expert witness, who testified that Buck was more likely to be violent in the future because he is black, and the jury sentenced Buck to death.

The procedural history in Buck is complicated, and the question before the court was exceedingly technical, but the court took the opportunity the case presented to make an important statement about the role that race can play in our criminal justice system. As my organization explained in an amicus brief, the testimony elicited by Buck’s counsel evoked an “enduring racial stereotype that exerts a unique power in this nation,” one that can have a “[d]emonstrable [e]ffect on [p]erceptions and [j]udgments.” The court agreed, concluding that the so-called expert’s “testimony appealed to a powerful racial stereotype,” resulting in “something of a perfect storm. [The expert’s] opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing.”

The presentation of this evidence thus ran headlong into our constitutional commitment to “eradicating [racial] stereotypes from the administration of justice and ensuring that jury proceedings are free of racial bias and prejudice.” As Chief Justice John Roberts wrote for the court, the possibility that “Buck may have been sentenced to death in part because of his race” is a “disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are.” (A majority of the court reaffirmed that commitment later this term in a non-capital case involving racial bias in jury deliberations. Writing for the court in Pena-Rodriguez v. Colorado, Justice Anthony Kennedy observed that a “constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.” Roberts dissented in that case.)

Buck wasn’t the only case this term in which the Supreme Court reversed a lower court decision in an effort to introduce additional fairness into the way the death penalty is applied. In Moore v. Texas, for example, the question before the court was whether it violates the Eighth Amendment’s prohibition on cruel and unusual punishment to “prohibit the use of current medical standards on intellectual disability … in determining whether an individual may be executed.” In that case, a state habeas court had ruled that Bobby Moore could not be sentenced to death because he was intellectually disabled, but the Texas Court of Criminal Appeals concluded that the habeas court had “erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the CCA in [a prior case].”

The Supreme Court, 5-3, reversed, reaffirming its 2014 decision in Hall v. Florida that “adjudications of intellectual disability should be ‘informed by the views of medical experts.’” As the court explained, the guidelines established by the CCA “‘creat[ed] an unacceptable risk that persons with intellectual disability will be executed.’” Emphasizing that states do not enjoy unlimited discretion to determine who qualifies as intellectually disabled, the court rejected the CCA’s objective of “identifying the ‘consensus of Texas citizens’ on who ‘should be exempted from the death penalty’”: “Mild levels of intellectual disability, although they may fall outside Texas citizens’ consensus, nevertheless remain intellectual disabilities … and States may not execute anyone in ‘the entire category of [intellectually disabled] offenders.’”

In McWilliams v. Dunn, the court, 5-4, concluded that the defendant had been denied assistance in presenting his defense – assistance to which he was entitled under a prior decision of the court. As Justice Stephen Breyer, explained: “Our decision in Ake v. Oklahoma … clearly established that, when certain threshold criteria are met, the State must provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively ‘assist in evaluation, preparation, and presentation of the defense.’” According to the court, Alabama fell “dramatically short” of this requirement because, although a doctor examined James McWilliams, no one was asked “to provide the defense with help in evaluating, preparing, and presenting its case.” Although this wasn’t a total win for McWilliams – the court didn’t go as far as McWilliams had asked it to go, declining to decide whether “a State must provide an indigent defendant with a qualified mental health expert retained specifically for the defense team, not a neutral expert available to both parties,” and the court also left the door open for the U.S. Court of Appeals for the 11th Circuit to reach the same ultimate conclusion on remand – it was nonetheless a win.

To be sure, it was hardly all progressive wins on the death-penalty front. In Davila v. Davis, the court, 5-4, held that ineffective assistance of counsel in state postconviction proceedings does not excuse a defendant’s failure to bring a claim that his counsel was ineffective on direct appeal, and thus a federal habeas court may not hear such a claim. In reaching this result, the court declined to extend an earlier 7-2 decision in which it held that ineffective assistance of counsel would excuse procedural default when the claim was that trial counsel was ineffective. As Justice Stephen Breyer wrote in dissent, there was no reason to treat those two situations differently: “[W]hat is sauce for the goose is sauce for the gander.” And outside the court’s merits docket, the court made news this term when it allowed Arkansas to execute a number of individuals as part of the state’s effort to execute eight people over an 11-day period before one of the drugs it uses in its lethal injection protocol expired.

Looking at all of these cases as a group, two things stand out. First, as I noted at the outset, these cases make clear that even with this very conservative court, some victories are possible for those who oppose the death penalty, or are simply concerned about the fairness of its application. To be sure, counting to five is much easier in some contexts than in others. A win for the criminal defendant is more likely in cases involving allegations of unfairness in the initial trial or sentencing, and it is more likely when it involves a categorical claim that the death penalty cannot be applied to a particular group of people. A win is less likely in cases involving allegations of unfairness in later stages of the proceedings, or allegations that the manner in which the sentence is being carried out is problematic. But there are still a number of contexts in which wins are possible, at least for now.

Second, and related to that last point, these cases are all exceedingly closely divided. Other than Buck, all of the court’s merits death penalty cases this term were either 5-4 or 5-3 decisions. In two of the three, Kennedy voted with the court’s more liberal members, and the defendant won; in one he did not, and the defendant lost. The Court’s newest member, Gorsuch, voted against the criminal defendant in both of the cases in which he participated. Thus, in this area – as in so many others – it seems that Kennedy’s vote will often be key.

It was around this time two years ago that Breyer made huge headlines when he wrote a dissent, joined by Justice Ruth Bader Ginsburg, calling for a wholesale re-examination of the constitutionality of the death penalty: “[R]ather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” That basic question may not be answered any time soon, but the lesson of this term is that there may be room for some additional patching of its wounds, at least for the time being.

Recommended Citation: Brianne Gorod, Death-penalty symposium: Even with this conservative court, some progressive wins remain possible, SCOTUSblog (Jun. 27, 2017, 4:48 PM),