Relief Denied?

February 23, 2007 — Features

Relief Denied?

Two new Supreme Court justices control the fate of Texas' condemned

by Anthony Zurcher

At least three lives, and possibly another 44, hung in the balance when Texas Solicitor General R. Ted Cruz stood before the U.S. Supreme Court in mid-January. As much as the state would like to execute Jalil Abdul-Kabir, Brent Brewer, and LaRoyce Smith, it cannot do so until the court is satisfied that the three convicted murderers were fairly and legally sentenced to die.

Texas death case arguments are hardly unusual fare for the nation’s highest tribunal, given our prowess in carrying out executions. The state put 24 men to death last year, nearly half the total of 56 nationwide, and has another dozen or so lethal injections already slated for 2007. Not surprisingly, the appeals of four condemned Texas inmates are among the eight capital cases the court has agreed to hear this term.

Divining how the justices might rule in any given case has always been a tricky proposition. But a heightened air of uncertainty gripped the chambers when Cruz stepped to the podium last month, a concentrated dose of the unease that has been rippling through anti-death penalty quarters of late.

Justice Ruth Bader Ginsburg still peered quizzically down through her thick, oversized glasses. Bow-tied octogenarian Justice John Paul Stevens peppered lawyers with questions, Justice Antonin Scalia baited his opponents with acerbic comments, and Justice Clarence Thomas stared silently into space. But two justices—William Rehnquist and Sandra Day O’Connor—were gone from their longtime spots at the center of the dais. In their places sat new Chief Justice John Roberts and newer Justice Samuel Alito.

What these two Bush appointees think of the death penalty and its application is not at all clear. But after watching the justices curtail executions and increasingly rein in the discretion of Texas and other states over the past few years, death penalty opponents nervously wonder if the court is about to reverse direction.

“A lot of ground has been set, and I think what people hope for is at least a continuation of that line of thinking and that those older opinions are respected,” says Richard Dieter, executive director of the Death Penalty Information Center. “The big fear is that in the past six years there’s been significant restrictions on the death penalty, but a lot them were close cases—five to four. A lot of cases could go the other way with a change, and there have been a couple of changes. In the next few years, precedents could be peeled away.”

The court’s eventual rulings in Smith v. Texas and Abdul-Kabir v. Quarterman should help resolve an 18-year battle over flaws in the jury sentencing instructions that Texas used before 1992. Sometime this spring, in Panetti v. Quarterman, the court will consider the constitutionality of executing a longtime schizophrenic who is so mentally ill that he believes he’s on death row because Satan hates his religious sermonizing.

More importantly, both sides in the death penalty debate will be looking for signs, clues, or outright proof that the tide has turned.
Over the past 18 years, the high court’s attitude toward how death sentences are handed down and carried out has undergone remarkable change.

In 1972 the court effectively threw out every death sentence in the nation, forcing states to write new capital-punishment laws meant to ensure that the ultimate penalty was applied fairly, and invoked only in serious murder cases. Four years later, the court allowed the new-and-improved death penalty statutes to stand, and by 1989 many legal scholars thought most of the major bumps were being methodically ironed out of the system.

That year, in a case from Kentucky, the court ruled that it was acceptable to execute defendants who committed their crimes when they were 16 or 17 years old. In a notorious Texas case involving a mentally impaired defendant—Penry v. Lynaugh—the court held that it was unconstitutional not to let juries consider a defendant’s diminished mental capacity when deciding on a death sentence. But the court also said mental retardation alone wasn’t grounds for barring an execution. In both cases, the court found that neither situation counted as “cruel and unusual punishment,” as prohibited by the Eighth Amendment to the U.S. Constitution.

“A lot rulings during that period were a reflection of the Rehnquist court’s view that we don’t need to control or regulate the death penalty, this is a state function,” Dieter says. “Executing juveniles and the mentally retarded aren’t things that we necessarily think are the best as individuals, but there’s no constitutional violation.”

But things changed. As far back as 1958, the court had found that the definition of cruel and unusual punishment evolved along with society’s standards. By 2002, in Atkins v. Virginia, six members of the court agreed that executing mentally retarded defendants was, in fact, cruel and unusual. Two years later, by a 5-4 margin, it halted executions of defendants who were juveniles when they committed their crimes. Justice Anthony Kennedy wrote the majority opinion that took 72 juvenile offenders in 12 states off death row.

“In the late ’90s, it looked like death cases were going to be increasing and there wasn’t going to much relief from the Supreme Court,” Dieter says. “Then the cases started coming down where there was indisputable proof of innocence, and the feeling grew that something had to be done about the death penalty. That led to a more restrictive series of decisions. The country as a whole is more skeptical about the death penalty, and the court reflected that.”

Other cases that garnered less media attention signaled the court’s growing restiveness with how the ultimate punishment was being meted out. Justices began signaling their displeasure with the quality of lawyers many capital defendants received. They increasingly insisted that defendants be given a fair chance to present mitigating evidence—such as proof of mental impairment or childhood abuse—for a jury to weigh before deciding on a sentence.

Ruling in an Arizona case, the court said that only juries—not judges—could hand down a death sentence. In another ruling, it clarified what constitutes competent representation by counsel during capital cases.

“[The court] essentially took American Bar Association guidelines and made them constitutional law,” says Elizabeth Semel, a law professor at the University of California, Berkeley, and former director of the American Bar Association’s Death Penalty Representation Project. “If you look at lower courts, you see an increase in the number of reversals based on the failure of lawyers to provide competent representation.”

As the boundaries of capital punishment law were drawn ever more tightly, some death penalty abolitionists began genuinely anticipating what had long been fantasy—that the court was inching toward a day when it would become so outraged at the death penalty’s sloppy application that it would throw capital punishment out altogether.

The departures of Rehnquist and O’Connor ended an unusual period of stability on the court. The longtime justices that remain have generally fallen into two camps when ruling on capital cases. On one side, Justices Scalia and Thomas are reliably conservative. On the other, Justices Stevens, David Souter, Ginsburg and Stephen Breyer form a more liberal block. Justice Kennedy, previously a solidly conservative vote, has become more of a cipher. In recent years he has cast several key votes limiting the death penalty. (In 2003, Kennedy wrote the groundbreaking opinion striking down Texas’ anti-sodomy law in Lawrence v. Texas.)

“While predicting what Justice Thomas is going to do at this point is probably not unreasonable, predicting where Justice Kennedy is going to come down is foolish,” says Semel, who is also director of the Death Penalty Clinic at the University of California, Berkeley.

Recent figures back him up. In the 17 5-4 decisions of the 2005-2006 term, according to figures compiled by Georgetown University’s Supreme Court Institute, Kennedy voted on the winning side 12 times. He sided with the conservative bloc six times and with the liberal justices four times.

Kennedy’s evolution is only the most recent example of how a justice’s views on capital punishment can be tempered over time. Former Justice Harry Blackmun was once a firm supporter of the death penalty, but in a 1994 dissent he wrote: “From this day forward, I no longer shall tinker with the machinery of death. ... I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.” Justice O’Connor entered the court in 1981 as a reliable vote for capital punishment, but late in her career she authored key opinions limiting its scope. In 2002, she told a Minnesota lawyer’s group: “If statistics are any indication, the system may well be allowing some innocent defendants to be executed,” and, “Serious questions are being raised about whether the death penalty is being fairly administered” nationwide.

“For most justices, the quality of death penalty cases and what lower courts sometimes uphold is surprising to them,” says Dieter. “Over time, they see that the law doesn’t always work the way it does in law firm or academic environments. And I think everyone’s eyes, not just justices’, have been opened. Clearly mistakes have been made in the past, and so everybody is seeing things a little differently now.”

In Roberts and Alito, the court has two new, young conservative members who have not been steeped in the death penalty’s myriad frustrations and complications. That scares death penalty opponents.

As a former judge on the U.S. Court of Appeals for the District of Columbia, Roberts hasn’t had to consider many death penalty cases. When he was nominated for chief justice, court watchers trying to glean his position on capital punishment were consigned to noting that the judge’s wife belonged to an anti-death penalty group. They scoured the judge’s past for tidbits of information, finding that in 1983, while working in the Reagan White House, Roberts wrote that the court could free up time “by abdicating the role of fourth or fifth guesser in death penalty cases.”

Alito participated in 10 capital cases during his 15-year stretch on the Third U.S. Circuit Court of Appeals in Philadelphia. While five of the cases were unanimous opinions, on each of the other five Alito sided with the state and against the defendant. In one of the cases, Alito ruled that a defendant’s death sentence should be upheld even though his lawyers failed to present crucial mitigating evidence to the jury. The following year, the Supreme Court overturned Alito’s ruling in a 5-4 decision authored by O’Connor—whose seat Alito now holds.

Alito and Roberts have ruled in several capital cases since joining the Supreme Court. The results appear discouraging for death penalty opponents. In House v. Bell, Roberts dissented in a 5-3 decision allowing a convicted murderer a hearing to present new DNA evidence of his innocence. (The case was argued before Alito’s confirmation.)

Alito’s first signed opinion, granting a stay of execution for a Missouri death-row inmate, generated some surprise, as he sided with the court’s four more liberal members and against conservative stalwarts like Scalia and Thomas. But in Kansas v. Marsh, a case that was reargued so he could participate, Alito voted with Roberts, Scalia, Kennedy, and Thomas to reverse the Kansas Supreme Court’s invalidation of that state’s death penalty statute because it allowed a sentence of death when a jury found the mitigating and aggravating factors in a case to be equal.

“The Missouri case was just a stay,” says Erwin Chemerinsky, a Duke law professor. “Death penalty opponents would love to see Alito on their side, but it may be wishful thinking. I think Kansas v. Marsh is an excellent indication of where Roberts and Alito are on the death penalty. Both justices are very pro-executive power, pro-prosecution, and pro-law enforcement. You’ll see them with Scalia and Thomas a lot more than you will with Ginsburg and Stevens.”

Historically, the court reverses about two out of every three death penalty cases it hears. That makes sense, as the justices usually don’t take cases unless a significant legal issue is at stake, and generally don’t take cases if they already agree with how the lower courts have ruled.

Seven death cases are on the court’s docket this term, three from Texas. One, the case of schizophrenic Scott Panetti, has not yet been scheduled for oral arguments.

The Abdul-Kabir and Brewer appeals were combined into one case, which was argued in January, on the same day as the Smith case. The death sentences of all three men are clouded by a glitch in the instructions that Texas gave jurors between 1989 and 1991 when they were deciding whether to impose a death sentence. Although those instructions have since been changed, 44 other current Texas death row inmates were also sentenced under them.

Under the outdated instructions, if jurors answered yes to two questions—Was the killing deliberate? Does the defendant pose a danger to others?—the judge was required to impose a sentence of death.

Those instructions ran afoul of a previous Supreme Court decision that said juries had to be given a chance to consider mitigating evidence. While the Texas Legislature took two years to pass a new statute complying with that decision, state trial judges tried to wing it by telling jurors they could falsely answer “no” to one of the two questions if they believed there to be reason to spare a defendant’s life. When the constitutionality of this rule came before the Supreme Court in 2001, O’Connor wrote for a six-justice majority, saying the cobbled approach was confusing and illogical and “placed law abiding jurors in an impossible situation.”

The appeals of Smith and Abdul-Kabir before the court now have been there before. In 2004, the court followed up its earlier decision with a terse 7-2 summary ruling in Smith’s case reaffirming that there were problems with the way the Texas courts handled the sentencing instructions. The court sent Smith and Abdul-Kabir back to Texas and told lower courts to try again.

When it got the Smith case back, the state’s highest criminal court—the Court of Criminal Appeals—upheld his death sentence again, essentially saying that Smith’s lawyer didn’t object to the flawed jury instructions at trial. Smith didn’t suffer any “egregious harm,” the state appeals court ruled, so his death sentence stood.

Critics of the Court of Criminal Appeals saw the decision as a brazen snub of the Supreme Court’s authority.

“The Smith case is important to people who are concerned not only about the death penalty, but the U.S. Supreme Court’s role as the final arbiter of constitutional law,” says Jordan Steiker, a University of Texas law professor who argued on behalf of Smith before the court. “The question is really about whether or not a state court can fail to embrace the direction that the court gave in its disposition of the case.”

The Abdul-Kabir and Brewer cases raise similar questions about whether jurors were able to fairly consider mitigating evidence.

(Other capital cases the court will consider this term include questions about ineffective assistance of counsel; time limits on appeals imposed by the Anti-terrorism and Effective Death Penalty Act of 1996; whether a court can overturn a death sentence based on a prosecutor’s inflammatory closing arguments; and the latitude a trial judge has in removing jurors who appear to have objections to the death penalty.)

During oral arguments last month, the court appeared closely divided on what to do about Smith. Roberts, Scalia, and Alito seemed to express sympathy for the state’s arguments that Smith’s sentence is valid. At one point, Scalia argued that most appeals courts wouldn’t let a procedural issue stand in the way of a defendant’s attempting to prove his innocence. Steiker, Smith’s lawyer, countered dryly, “I’m afraid that’s not my experience with the [Texas] Court of Criminal Appeals.”

Roberts noted that just because the Texas Court of Criminal Appeals upheld Smith’s sentence didn’t mean it ignored the high court’s instructions. “Why do we remand these cases for further proceedings not inconsistent with our opinion if there’s nothing further to be considered?” he asked.

Stevens, Souter, Ginsburg, and Breyer seemed to show more sympathy for Smith. Breyer, in particular, repeatedly suggested that once a federal constitutional problem had been found in the sentencing instructions, the Texas court couldn’t just go back and find a reason to ignore the error.

Although Thomas was silent as the sphynx, there’s little mystery on his views since he ruled against Smith in the earlier decision. That means the outcome of this case could once again turn on the views of Kennedy. Although quiet for most of the argument, he did at one point ask, “Is there no federal interest in ensuring that there is a full and fair implementation of a federal right?”

When Abdul-Kabir’s case was argued, Roberts took center stage with a disheartening series of questions for Robert Owen, a law professor at the University of Texas representing Abdul-Kabir, on whether a jury had to be explicitly told to consider mitigating circumstances when deciding on death, or if the presentation of such evidence is enough. When Owen noted that the jury might look at evidence of childhood abuse as a predictor of future dangerousness, not a reason for mercy, Roberts replied, “I just don’t see how you can speculate on which way the jury is going to go.” Roberts later noted that, “The standard ... is whether juries can consider this mitigating evidence in some manner.”

Ginsburg countered that by their very existence, the two Texas sentencing questions forced defense attorneys to shy away from presenting evidence of lessened moral culpability, and to focus on proving that the defendant did not act deliberately and would be less dangerous in the future. “Realistically,” she noted, “a defense counsel who knows that the jury is going to have those two questions, he’s got to fit his argument to the jury in those questions.”

The hearings did nothing to boost the hopes of death penalty opponents.

Standing alone, there will likely be no headline-grabbing death penalty decisions from the high court this term. But court watchers are looking for signs of what will come when some of the beefier, potentially far-reaching cases now in lower courts work their way up.

Legal battles are roiling in several states—including Texas—over whether the standard three-drug cocktail used for lethal injections is itself cruel and unusual because it can cause excruciating pain. Currently, executions are on hold in California, Delaware, Florida, Louisiana, Maryland, and Missouri because of cases challenging lethal injections.

There is also increasing pressure to stop executing defendants who were mentally ill when they committed their crimes. In 2006, the ABA adopted a resolution against such executions.

Predicting how the court will respond to these upcoming cases, of course, is likely futile. Although the Rehnquist court went for 11 years without a change, such a long period of stability is extremely unusual. Current justices could retire or die. Stevens, for instance, will turn 87 in April. Ginsburg will be 73 this year and underwent treatment for colon cancer in 1999.

Opponents of the death penalty are also quick to point out that their abolition movement is larger than the Supreme Court, and that public support appears to be turning in their favor. A recent Gallup poll showed that while two-thirds of Americans still support capital punishment, more Americans prefer life without parole over the death penalty, 47 percent to 46 percent, for the first time in the poll’s 21-year history. New Jersey seems poised to issue a ban on capital punishment, and in 2005 New York legislators rejected efforts to remedy a state court-imposed prohibition handed down in 2004. Overall, in 2006 the number of executions carried out in the nation hit a 30-year low.

“I don’t think anybody thinks that the Supreme Court’s rejection of the death penalty was going to be easily won or was around the corner,” Semel says. “But if one looks at trends, and trends are extremely relevant to the question of evolving standards of decency, the trend in this country—just like the rest of the world—is in one direction.”

In Texas, executions are taking place at a steady clip, however, and death penalty opponents still face an uphill fight. According to Jim Coombes, president of the Texas Coalition to Abolish the Death Penalty, the organization’s current goals are to pressure the Legislature to pass guidelines for what constitutes mental retardation in capital cases, and consider a moratorium to allow further investigation into evidence that the state may have executed innocent individuals.

“We aren’t fooling ourselves,” Coombes says. “We know that Texas will be, if not the last, one of the last states to abolish the death penalty. But we see this drive starting in places like Illinois and New Jersey, and slowly spreading across the rest of the country. At some point, the Supreme Court will look at it and say there’s widespread opposition to the death penalty and they should go ahead and do away with it.”

Anthony Zurcher is an Austin writer and editor.

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