Column: Death-Penalty Drama in the Supreme Court (NY Law Journal)
by Chris Dunn
For death-penalty advocates, the last six weeks have seen one dramatic development after another. Last Thursday, the U.S. Supreme Court blocked a Texas execution because the state would not permit the condemned to have a Buddhist spiritual advisor present while allowing Christian and Muslim advisors. The week before, in a Mississippi death-penalty case, every member of the Court save its sole African-American one seemed poised to expand protections against racially-biased juror exclusions. Two days earlier, on March 18, the Court agreed to address the scope of its recent jurisprudence severely limiting the imposition of life-without-parole sentences on juveniles in a case arising out of a notorious string of random shootings around Washington, D.C.
Remarkable as March was, perhaps the most dramatic development came at the end of February, when the Supreme Court vacated the death sentence of an Alabama man who had developed dementia while awaiting execution. Though the Court described itself as applying well-settled principles, the line-up of Justices in the majority was striking and, as the dissent makes clear, what that surprising line-up did was highly unusual. The February 27 ruling and the subsequent developments about juvenile sentencing and jury selection warrant particular attention given their potential impact on death-penalty cases.
Striking Black Jurors
In 1986 the Supreme Court finally recognized that the U.S. Constitution bars one of the most pernicious prosecutorial practices in our criminal justice-system: the use of preemptory challenges to strike potential jurors on the basis of their race—invariably because they are African-American. Despite that watershed ruling in Batson v. Kentucky, 476 U.S. 79 (1986), race-based juror disqualifications have remained an engrained practice. A case argued before the Supreme Court two weeks ago dramatically illustrates the practice’s persistence.
On July 16, 1996, four employees of the Tardy Furniture Store in Winona, Miss., were found shot to death. Curtis Flowers, a recently-fired store employee, was arrested, charged with capital murder, and ultimately convicted after being tried six times, all with the same prosecutor. During the first four trials, the prosecutor used every one of his 36 preemptory challenges to strike black jurors, with one conviction being reversed on Batson grounds. At the sixth trial, the prosecutor accepted the first black juror candidate but then struck the remaining five, resulting in a jury of 11 white jurors and one black juror, who convicted Flowers. He was then sentenced to death.
While Flowers’ request for review was pending before the U.S. Supreme Court, the Court decided Foster v. Chatman, 136 S.Ct. 1737 (2016), in which it reversed a conviction in a capital case on Batson grounds in light of post-conviction revelations that the prosecutor’s file in that case was replete with evidence the prosecutor used preemptory challenges to exclude blacks from the jury because of their race. The Supreme Court then vacated Flowers’ conviction and remanded his case for reconsideration in light of Foster.
On remand the key question was whether the prosecutor’s juror-selection history during all six trials should be considered in assessing the Batson challenge arising from the final trial. In considering this claim the Mississippi Supreme Court faithfully recited the Batson three-part test and reasoned that the third part—that “the trial court must determine whether the defendant has shown purposeful discrimination—necessarily allowed for consideration of the prosecutor’s history. But the Mississippi high court also read that step to require it to defer entirely to the trial court’s conclusion in Flowers’ case that the history did not reveal improper animus in the sixth trial.
It was this prosecutorial history that was the subject of debate at the March 20 arguments before the U.S. Supreme Court, and it was not only the liberal Justices who raised serious concerns. Justice Alito called the prosecutor’s record “unusual and really disturbing,” and Justice Kavanaugh declared, “We can’t take history out of the case.” By all accounts, it appears the court will vacate Flowers’ conviction and death sentence, perhaps breaking new ground in recognizing that Batson requires a more searching examination of prosecutorial use of preemptory challenges.
But there was one bigger surprise at the argument: For the first time since 2016 (which itself marked the end of a 10-year silence), Justice Thomas asked questions. Less surprising was that he directed his concerns about discriminatory juror-striking not to the state but to defense counsel, asking about her use of preemptory challenges: “And what was the race of the jurors struck there?”, Justice Thomas asked. (The answer was white, which had nothing to do with the issue before the Court and was to be expected since virtually all black jurors had been eliminated by that point.)
The ‘D.C. Snipers’ and LWOP
In the fall of 2002 the Washington, D.C. metropolitan area was terrorized by a series of random shootings at the hands of what were dubbed the “D.C. Snipers.” Lee Boyd Malvo, who was seventeen at the time, and John Muhammad, a father-like figure to Malvo, ultimately were arrested and charged in the attacks, which left twelve dead and six seriously injured. In separate cases in Maryland and Virginia, Malvo pleaded guilty and was sentenced to life in prison without parole (known in the criminal-justice community as LWOP).
Subsequently, the U.S. Supreme Court issued a series of seminal rulings limiting the sentences the Constitution permits to be imposed on juveniles. First was Roper v. Simmons, 543 U.S. 551 (2005), in which the Court held that juveniles could not be sentenced to death. Five years later, in Graham v. Florida, 560 U.S. 48 (2010), the Court held that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” And two years after that, in Miller v. Alabama, 567 U.S. 460 (2012), the Court held that a juvenile convicted of a homicide cannot receive a mandatory sentence of life without parole. Finally, in 2016, the Court held in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), that Miller’s bar on mandatory LWOP sentence for juveniles applied retroactively to juvenile offenders whose convictions and sentences were final when Millerwas decided.
In light of these decisions, Malvo filed a federal habeas petition in the Eastern District of Virginia seeking to vacate his life-without-parole sentence. At the heart of the dispute about that sentence is whether Miller’s rule is limited to situations where an LWOP sentence is “mandatory” or covers all situations in which juveniles receive an LWOP sentence. This distinction arises in Malvo’s case because Virginia’s Supreme Court has construed the state’s sentencing laws to authorize trial courts to suspend in whole or in part life sentences, arguably making LWOP sentences there not mandatory. The Fourth Circuit, however, found that Miller’s protection extends to all LWOP sentencing regimes: “[A] sentencing judge alsoviolates Miller’s rule any time it imposes a discretionary life-without-parole sentence on a juvenile homicide offender without first concluding that the offender’s crimes reflect permanent incorrigibility, as distinct from the transient immaturity of youth.”
On March 18, two days before hearing argument in the Batson case out of Mississippi, the Supreme Court agreed to review the LWOP issue presented by Malvo’s sentence. This sets the stage for yet another important ruling about the Constitution’s protections of juveniles facing severe criminal sentences.
Dementia and Execution
As interesting and important as are the life-without-parole and Batson cases now before the Supreme Court, the most intriguing death-penalty development came with the Court’s February 27 decision in Madison v. Alabama, 139 S.Ct. 718 (2019). In 1985 Vernon Madison killed a police officer during a domestic dispute and was sentenced to death. While awaiting execution, Madison developed dementia, which meant among other things he had no memory of the murder for which he was sentenced to die.
Following this change in his condition, Madison filed a habeas petition contending that executing him would violate the Eighth Amendment. The Eleventh Circuit agreed, but in 2017 the Supreme Court summarily reversed, holding that the claim that the Constitution bars executing one who does not remember his crime was not “clearly established,” a high standard that a 1996 statute imposes in death-penalty habeas cases.
Alabama then set a 2018 execution date, and Madison filed a new challenge in state court, which summarily rejected it. Madison filed a stay request and a petition for certiorari directly with the Supreme Court, which granted the stay on the day of the scheduled execution and agreed to hear his case.
Liberated from the “clearly established” standard since Madison’s case now was on direct review, the Court explained that the law governing his claim that his dementia barred him from being executed was relatively straightforward. As the Court explained, the “critical question” under prior Supreme Court precedent addressing the constitutionality of executing the insane or those suffering “gross delusions” from “extreme psychosis,”
is whether a prisoner’s mental state is so distorted by a mental illness that he lacks a rational understanding of the State’s rationale for his execution. Or similarly put, the issue is whether a prisoner’s concept of reality is so impaired that he cannot grasp the execution’s meaning and purpose or the link between his crime and its punishment.
In light of this focus on comprehension of the reason for being executed, the Court reasoned, two principles emerged that bore directly on Madison’s lost memory and his dementia. First, the mere fact that a death-row inmate does not recall his crime does not bar his execution. While “it offends humanity to execute a person so wracked by mental illness that he cannot comprehend the meaning and purpose of the punishment,” moral values “do not exempt the simply forgetful from punishment.” That Madison could not recall his crime therefore provided no basis for blocking his execution.
Conversely, an inability to comprehend the reasons for one’s execution renders that execution unconstitutional, regardless of whether that inability arises from insanity, gross delusions, or any other cause: “Psychosis or dementia, delusions or overall cognitive decline are all the same …, so long as they produce the requisite lack of comprehension.” Given this, that Madison suffered from dementia rather than psychosis or insanity did not disqualify him from Eighth Amendment protections. The Court then remanded the case to the Alabama courts to determine whether Madison, in his new condition, was able to comprehend the reason for his execution.
All of this seems relatively straightforward until you get to the dissent and focus on the Justices who constituted the majority. That dissent, authored by Justice Alito and joined by Justices Thomas and Gorsuch, opens with the protest, “What the Court has done in this case makes a mockery of our Rules.” From there it explains that Madison’s petition focused solely on the question whether loss of memory of one’s crime barred execution and notes that was the only question the Court had agreed to review. Once the Court had done so, the dissent charges, “counsel abruptly changed course” and relied on their claim that the Alabama courts had erred because they had ruled Madison was not entitled to relief because he suffered only from dementia. “Counsel’s tactics flagrantly flouted our Rules,” but “the majority rewards counsel’s trick.”
The dissent’s denunciation of the majority is particularly striking when one focuses on those constituting the majority. As would be expected, Justices Ginsburg, Breyer, Kagan, and Sotomayor were four of the five Justices. Justice Kavanaugh arrived too late to participate. That left one Justice to provide the fifth and decisive vote: Chief Justice Roberts.
Death-penalty cases, with their life-and-death consequences and underlying dynamics of race and power in the criminal-justice system, are the most important disputes that come before the Supreme Court. Moreover, we find ourselves at a juncture where President Trump’s appointments to the Court threaten to cast a long shadow over constitutional protections for many years to come. One can only hope that, notwithstanding this threat, the Court will continue to recognize the critical importance of death-penalty protections. And as his vote in Madison may indicate, Chief Justice Roberts looms as a possible safeguard against a broad curtailing of civil rights and civil liberties.
This piece originally appeared as a column in the New York Law Journal