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July 2, 2006

Biggest SCOTUS death penalty developments

Though I have already done a little end-of-term Supreme Court commentary here and here, the holiday weekend allows for broader reflection on SCOTUS developments.  Below I have my take on the biggest death penalty developments of the just-completed Term.  (In a subsequent post, I will discuss the biggest non-capital sentencing developments.)

1.  The past and future scrummages over lethal injection protocols.  The cert. grant in Hill was alone enough to jump-start litigation over lethal injection protocols nationwide, and the case essentially produced a de facto moratorium on executions in most states.  The ruling in Hill, by approving the use of 1983 actions to challenge lethal injection protocols (while completely avoiding the merits of the substantive Eighth Amendment claims), ensures a lot more lower court lethal injection litigation in the weeks and months ahead.

2.  A deep division among the Justices persists.  The remarkable sparring between Justices Scalia and Souter over innocence issues in Marsh was just the most visible expression of the deep divide on the death penalty among the Justices.  Many death penalty rulings were resolved by a 5-4 vote this Term, and the new "unanimity movement" identified with the new Chief Justice had little or no impact in capital cases.

3.  Slight changes in the capital case fulcrum.  As in other doctrinal areas, Justice Kennedy has taken over Justice O'Connor's role as the key swing vote in capital cases.  Though Justices Alito and Roberts did not author any major capital opinions, their votes so far suggest they will not often be joining the liberal block in death penalty cases.  Consequently, the battle lines for a 4-1-4 split in future capital cases seem already well established.

4.  An evolution in the docket and case dispositions.  Though this may just be wishful thinking on my part, I sense the new Court may be moving away a bit from its legal culture of death.  Throughout 2005, I was regularly carping about cert grants in too many capital cases and the lack of grants on big non-capital sentencing issues.  But lately, SCOTUS seems comfortable dealing with some "minor" death cases via summary reversals, and they are taking up more non-capital sentencing cases.

July 2, 2006 at 01:44 PM | Permalink


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Tracked on Jul 5, 2006 4:06:46 PM


Does today’s 30th Aniversary of Gregg v. Georgia inspire all of this death penalty commentary?

Posted by: DEJ | Jul 2, 2006 7:12:28 PM

Wasn't the lethal injection vote unanimous? It seems strange to say that the unanimity movement had little or no effect on death penalty issues when one of the key death penalty cases was unanimous. Certainly that means "no effect" is not an option, and I think it weakens any statement that there's little effect.

Posted by: Jeremy Pierce | Jul 4, 2006 9:21:17 AM

Fair point, Jeremy, though the court obviously achieved unanimity in Hill by avoiding the tough questions in the case. Perhaps that reality shows the success of the new Chief, but the court also decided the precursor to Hill (the Nelson decision from Alabama) also by a 9-0 count, and Hill purports simply to apply Nelson.

Posted by: Doug B. | Jul 4, 2006 5:03:37 PM

Hill has certainly not produced a moratorium. Since June 12, 2006, the people of Texas have killed two prisoners and Tennessee's citizens have killed one.

The fact that "most states" of those with the penalty haven't killed anyone lately doesn't mean Hill has caused a moratorium either - TN had only killed one prisoner, Mr. Robert Coe, in 2000, before Mr. Alley (their only other post-Furman execution). The dissent to the denial of (en banc) rehearing explicitly argued that, before the Hill decision, Mr. Alley could not have even brought his claim (that Circuit had decided LI claims were properly brought under 2254 rather than 1983), so the fact that he was executed shows that Hill had little, if any, moratorium-like effect.

Those numbers are down though. I believe back in December Texas was killing a person a week.

Of course, federal court orders like those issued in Taylor (MO) do have the effect of stopping executions temporarily in federal districts (not states), but to my knowledge no state has imposed a moratorium.

Posted by: anon afpd | Jul 5, 2006 9:38:32 PM

Anon, by my count, at least 4 states have had their execution plans halted by lethal injection litigation in the wake of the Hill cert grant: Florida, California, Missouri and Arkansas. In addition, Maryland and Ohio and a few other states have had execution plans disrupted in part by lethal injection issues.

Posted by: Doug B. | Jul 6, 2006 3:03:59 AM

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