Justices Scrutinize Death Penalty in Texas

Linda Greenhouse at the New York Times has, "Justices Scrutinize Death Penalty in Texas."

The Supreme Court on Wednesday resumed its long-running effort to monitor the use of the death penalty in Texas, hearing arguments in three cases that put the strains and internal contradictions of the court’s capital punishment jurisprudence fully on display.

One case was familiar, at least to the seven justices who were on the court when LaRoyce L. Smith’s previous appeal of his death sentence came before them in 2004. At that time, the court voted 7 to 2 to overturn the sentence, only to see it promptly reinstated by the Texas Court of Criminal Appeals on the ground that the constitutional error the justices had identified was “harmless.” The question now is whether that was an acceptable response by the state court to the Supreme Court’s mandate.

The other two cases, while unfamiliar in their particulars, were very familiar in what they represented: the latest, but almost certainly not the last round in a fitful dialogue between the Supreme Court and the federal appeals court that oversees habeas corpus cases filed in federal court by Texas inmates.

All three cases offer a window on the recent history of capital punishment in the United States, which to a large degree is the history of capital punishment in Texas. Since 1976, when the Supreme Court permitted states to resume executions, Texas has put to death 380 people, far more than any other state. (The next highest, Virginia, has executed 98.)

The Washington Post has, "High Court Hears 3 Death Penalty Cases."

The court heard three death penalty cases from Texas even as executions are on hold in an increasing number of states, from Maryland to California, and as the number of new death sentences continues to fall.

The work of the court so far this term shows that the complicated legal process that attends executing a murderer -- the balance of state laws and federal constitutional guarantees -- can take decades to unspool. Even a trip to the Supreme Court is sometimes not enough to settle the issue.

The cases of at least nine death row inmates nationwide -- who are not proclaiming innocence but are protesting their sentences -- are on the court's docket in this term. Just as the justices scrutinized Virginia's system for carrying out the death penalty several years ago, they are examining four cases from Texas this year, including the three heard yesterday.

The number of capital cases is not unusual for the court, those who follow the issue say. But because the justices so far this year have taken a smaller number of cases overall, the death penalty accounts for "a larger fraction of their work," said Richard Dieter, executive director of the Death Penalty Information Center. Douglas A. Berman, a law professor at Ohio State University, said: "It's probably the normal number, but I always think they take too many. Especially at a moment when the docket is so light." The justices have taken a decreasing number of cases in recent years, and this term, which will end this summer, is likely to continue that trend.

Sometimes the court's decisions are dramatic, such as 2005's Roper v. Simmons, which forbade the execution of those who were younger than 18 at the time of their crimes. But Berman, who writes regularly for and runs the Sentencing Law and Policy blog, said the court's decisions in most death penalty cases affect only a handful of people in the states from which the cases arise. He would like to see the court spend time on other sentencing disparities "that affect thousands of people every day."

Indeed, the Texas cases heard yesterday had all been decided more than 15 years ago, when Texas juries were asked to answer only yes or no to two questions when deciding whether to impose death. They were asked whether the killing was deliberate and whether the killer constituted a continuing threat to society.

Dahlia Lithwick at Slate has, "Texas Side-Step: Have the Supremes Court's Opinions Become Suggestions in Texas?"

Remember Tom Parker? He's the Alabama Supreme Court justice who last year urged his brethren—in an op-ed, no less—to ignore Supreme Court death-penalty precedent (with "precedents" spit out between ironic quotation marks) on the theory that "state supreme court judges should not follow obviously wrong decisions simply because they are 'precedents.' " He urged his colleagues to disregard the Supreme Court's ruling in Roper v. Simmons because it was, in his opinion, "the unconstitutional opinion of five liberal justices on the U.S. Supreme Court."

Well, the Texas Court of Criminal Appeals—that state's highest court—has figured out a better way to thwart a clear directive from the U.S. Supreme Court. When the Texas court was instructed, in a 2004 decision about the constitutionality of its jury instructions, to reconsider its approach to its death-penalty cases, the Texas court didn't go the Parker route of name-calling and fomenting revolution. Instead, it just politely thanked the Supremes for their interesting insights, then effectively switched the standard of review and ignored them. You might think the current justices would be hopping mad about that. But the lesson to be learned in Smith v. Texas is that when a lower court wants to appeal a higher court's decision, it need only wait around for a change in personnel.

An Associated Press is here, via Guardian Unlimited.

The Supreme Court appeared closely divided Wednesday in considering pleas to throw out death sentences for three Texas murderers in arguments held on the 30th anniversary of the resumption of capital punishment.

The cases were heard on the same day Texas executed its 381st prisoner since the high court reinstated capital punishment. That total is far more than in any other state.

Nine death penalty opponents were arrested on the court's plaza when they unfurled a 30-foot banner reading ``Stop Executions.''

Inside the courtroom, the justices, lawyers and the audience were unaware of the protest.

The three cases involve problematic instructions to juries that were choosing between a sentence of death or life in prison.

The Dallas Morning News has "High court revisits Texas death-row cases."

The Supreme Court put a tough spotlight on Texas' death row Wednesday, devoting rare attention to a case in which the state's high court is accused of ignoring the justices to uphold a death sentence.

At issue in that and two other cases argued Wednesday were rules under which 47 of the 391 Texas inmates were sentenced to death in the 1980s and 1990s, and whether juries were allowed to properly weigh a defendant's mental illness or childhood abuse and neglect when making life-or-death choices.

The outcome could mean upheaval on the nation's largest death row.

Austin American-Statesman coverage is here.

Rulings in the three cases could further define federal reach into state capital punishment procedure. The court also could define how a defendant's background is used in sentencing, potentially requiring new trials for dozens of inmates on Texas' death row.

It's the second time the Supreme Court has heard arguments in the case of LaRoyce Smith, the defendant in Smith v. Texas. In 2004, the court overturned Smith's sentence, finding that jurors were not allowed to consider Smith's childhood abuse and mental problems when they sentenced him to die for murdering Jennifer Soto, a Taco Bell manager, in a botched robbery in 1991.

On Wednesday, the justices considered how the Texas Court of Criminal Appeals reinstated Smith's death penalty by ruling that Smith did not deserve a new sentencing hearing because any errors involving jury instructions were "harmless."

"My hope and expectation is when the court clears the procedural brush, it will see that at the heart of the hearing was (the Texas court's) unwillingness to embrace the Supreme Court's federal, constitutional conclusion," said University of Texas law professor Jordan Steiker, who argued Smith's case Wednesday.

UT law professor Rob Owen argued the consolidated cases, and both professors were assisted by various semesters' worth of UT Capital Punishment Clinic law students who have put in hours of labor on the cases since 2002.

"UT is certainly ground zero for the American death penalty," Steiker said.

Karl Keys has commentary here.