Sentencing Law and Policy

What might the second Trump term mean for the death penalty?

The question in the title of this post defies any quick analyses, especially since there may be a number of different stories to unpack related to death penaly law (both constitutional and statuory) and death penalty administration (prosecutions, sentences and executions).  In addition, though a President and his Justice Department can have the most direct impact on federal capital punishment, there are also various ways that federal officials (and federal politics) can impact state capital justice systems.  And yet, all these nuances aside, we can still simply matters by saying a second Trump term likely means more use of, and attention on, the death penalty.

This lengthy new NBC article, headlined "Trump wants to expand the federal death penalty, setting up legal challenges in second term," overview some the federal capital punishment issues.  Here are excerpts:

Throughout his campaign, President-elect Donald Trump signaled he would resume federal executions if he won and make more people eligible for capital punishment, including child rapists, migrants who kill U.S. citizens and law enforcement officers, and those convicted of drug and human trafficking....

While it remains unclear how Trump would act to expand the death penalty, anti-death penalty groups and criminal justice reform advocates say they are taking his claims seriously, noting the spree of federal executions that occurred during his first term....

At the tail end of Trump’s first term, 13 federal inmates were put to death — even as the pandemic led states to halt executions because of Covid concerns in prisons. The cases included the first woman executed by the federal government in nearly 70 years; the youngest person based on the age when the crime occurred (18 at the time of his arrest); and the only Native American on federal death row.

No president had overseen as many federal executions since Grover Cleveland in the late 1800s, and the U.S. government had not executed anyone for more than 15 years until Trump revived the practice.  His then-attorney general, William Barr, had said that the federal government “owed it to victims to carry out the sentence imposed by the justice system.”

President Joe Biden had campaigned on passing legislation to eliminate the death penalty at the federal level, but pulled back on that in office. Instead, Attorney General Merrick Garland announced a moratorium in 2021 to review the federal execution protocols....  Meanwhile, the Justice Department under Biden and Garland has not sought the death penalty in federal cases that could have warranted it, and has even withdrawn death penalty sentences in about two dozen cases that it had inherited....

There are currently 40 inmates, all men, on federal death row, according to the nonpartisan Death Penalty Information Center. They include gunmen responsible for mass shootings in South Carolina and Pittsburgh and the man convicted in the Boston Marathon bombing....

More than 40 federal laws provide for the death penalty, with nearly all dealing with murder or an illegal act that results in death.  Whether Trump would expect federal prosecutors to seek death in cases that don’t explicitly involve murder — for instance, the rape of a child — remains to be seen, but the Death Penalty Information Center notes that a 2008 Supreme Court ruling prohibits the execution of people convicted of raping children and says it’s unclear if the use of the federal death penalty would be constitutional in certain cases in which someone was not killed.

One quick and notable account of "The Bureau Of Prisons Under A Trump Administration"

Walter Pavlo has this notable new piece at Forbes headlined simply "The Bureau Of Prisons Under A Trump Administration." I would recommend the piece in full, and here are highlights:

President Donald Trump handily won the election and will be sworn in as the 47th president in January 2025.  As a result, we all know change is coming throughout the government but the differences in the Federal Bureau of Prisons (BOP) will likely be dramatic.

Trump has promised to restart the death penalty.  Attorney General Merrick Garland made an announcement shortly after President Joe Biden took office, saying he was imposing a moratorium on federal executions....  The last federal prisoner executed was Dustin Higgs who was put to death by lethal injection just days before Trump left office on January 16, 2021.  Look for executions to start up early in Trump’s second act.

In December 2018, Trump signed the First Step Act into law, which allows mostly minimum security prisoners to earn time off of their sentence and increased time in the community at the end of their sentence.  While the BOP has made great strides in implementing the First Step Act, problems persist six years after Trump signed the law.  Plaguing the BOP has been coming up with a way to calculate credits to reduce sentences as well as finding more community housing (halfway houses) for prisoners.  The First Step Act was also intended to cut costs by returning prisoners to the community sooner.  With cost cutting sure to be on the Trump agenda, look for more pressure to reduce prison populations, which could be good news for those who are eligible for First Step Act credits.

Biden also stopped another Trump initiative; private prisons.  Long plagued by inhumane conditions and the unsavory reality of a private company run to detain private citizens, private prisons seemed to have no future. However, Trump embraced private enterprise to solve social problems.  While the BOP is not using any private prisons, look for Trump to ramp it up, particularly when it comes to housing non-US citizens. Shares of private prison companies GEO Group and CoreCivic saw their shares prices spike the day after the election.  Wall Street knows what is about to happen on this front....

There are prisoners who are on home confinement on CARES Act.  The CARES Act, part of the law to meet the challenges of the COVID-19 epidemic, allowed health-compromised prisoners to serve their sentence on home confinement. That program was discontinued in April 2023 but many prisoners are still on home confinement.  When Trump was in office the first time, his Office of Legal Counsel issued a memorandum calling for the return of those prisoners on home confinement back to prison once the pandemic was over. In December 2021, Biden’s Office of Legal Counsel issued its own memorandum giving the BOP the ability to decide if prisoners would be returned .... none were.  There are now only a few hundred prisoners out on CARES Act but many of them have years to go on their sentence.  It is uncertain if a new memorandum will be issued by Trump's administration....

While [current BOP Director Colette] Peters has a good relationship with Congress, their patience may wane as the BOP’s challenges make the agency one of the most difficult to manage in all of government. Many speculate that Trump will want his own person in the job, particularly when he sees the state of the BOP today (staff shortages, infrastructure problems, no capacity at halfway houses and poor morale). Peters might last a while, but Trump will certainly be watching.

Federal plea deals with three 9/11 defendants for LWOP sentences apparently revived by military judge

This AP article reports that a "military judge has ruled that plea agreements struck by alleged Sept. 11 mastermind Khalid Sheikh Mohammed and two co-defendants are valid, voiding an order by Defense Secretary Lloyd Austin to throw out the deals, a government official said." Here is more:

The official spoke on condition of anonymity Wednesday because the order by the judge, Air Force Col. Matthew McCall, has not yet been posted publicly or officially announced.

Unless government prosecutors or others attempt to challenge the plea deals again, McCall’s ruling means that the three 9/11 defendants before long could enter guilty pleas in the U.S. military courtroom at Guantanamo Bay, Cuba, taking a dramatic step toward wrapping up the long-running and legally troubled government prosecution in one of the deadliest attacks on the United States.

The plea agreements would spare Mohammed and two co-defendants, Walid bin Attash and Mustafa al-Hawsawi, the risk of the death penalty in exchange for the guilty pleas.

Government prosecutors had negotiated the deals with defense attorneys under government auspices, and the top official for the military commission at the Guantanamo Bay naval base had approved the agreements.

I do not know enough about Gitmo prosecutions or military justices to say whether this is the end of the matter, nor do I know if the coming change in federal administrations could be another wrinkle in any smooth plans to resolve these cases.  But I have an inkling that there are more chapter ahead in this very long running saga.

Prior recent related posts:

• Federal prosecutions alert families that possible plea deals with 9/11 defendants may preclude death penalty 
• Federal prosecutors finalizes plea deals with three 9/11 defendants for LWOP sentences
• US Defense Secretary overrules GITMO overseer to revoke plea agreement with 9/11 defendants
• Rounding up a few major press pieces about revoked 9/11 plea deals

How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?

Throughout his succesful campaign for a return to the Oval Office, Donald Trump spoke repeatedly about pardoning persons federally prosecuted for their behaviors at the Capital on January 6, 2021.  With Trump now Preident-Elect, those promises are already leading to court filings in on-going Jan. 6 prosecutions as detailed in this new article:

Hours after most news outlets declared Donald Trump the winner of the presidential election, lawyers for January 6 defendants started to file motions, hoping to reap the benefits.

On Wednesday morning, an attorney for Christopher Carnell, who was found guilty of obstruction and other charges related to the riot on January 6, 2021, filed a motion to postpone a status hearing scheduled for Friday....  Carnell sought to move the hearing to December because he "is now awaiting further information from the Office of the President-elect regarding the timing and expected scope of clemency actions relevant to his case."... A judge denied Carnell's request on Wednesday....

An attorney for Jaimee Avery, another January 6 defendant, also filed a motion to delay a sentencing hearing scheduled for Friday.  Avery's lawyer is seeking to postpone it until after the presidential inauguration in January because of the "real possibility that the incoming Attorney General will dismiss Ms. Avery's case or, at the very least, handle the case in a very different manner."  As such, it would be "fundamentally unfair" for Avery to be sentenced this week....

The Justice Department's investigations and trials related to January 6 are ongoing. As of November, the Justice Department said that over 1,532 people had been charged, including 571 people who face felony charges of assaulting or impeding the police....

Trump has maintained that he would pardon many of the defendants, with the exception of those who are "evil and bad," he told Time in April.  Speaking to the National Association of Black Journalists in July, Trump said he would "absolutely" pardon rioters. "If they're innocent, I would pardon them," he said. "They were convicted by a very tough system."

Obviously, it is not entirely clear just what Trump may mean by "innocent" and "evil and bad" as determinants of who he will and will not pardon among the Jan. 6 defendants once he gets back to the White House.  But it does seem Trump is disinclined to issue a blanket pardon to all the Jan. 6 defendants.  And, as detailed in this April 2024 NBC piece, the Trump campaign was eager to stress that Jan. 6 clemency would involve a "case-by-case" process:

Former President Donald Trump ...  said that, if elected, he'd "absolutely" consider pardoning every single one of the hundreds of criminals convicted in connection with the attack on the U.S. Capitol.  But Trump's campaign, in a statement to NBC News, said such pardons would be "on a case-by-case basis," not the sort of blanket pardon Trump referred to in a recent interview with Time magazine....

"As President Trump has promised, he will pardon January 6th protestors who are wrongfully imprisoned by Crooked Joe Biden’s Justice Department, and those decisions will be determined on a case-by-case basis when he is back in the White House,” Karoline Leavitt, national press secretary for the Trump campaign, said.

I would guess that more than a few January 6 defendants and their supporters are already preparing clemency materials and that folks may already be trying to get them to Prez-Elect Trump and his team well before he takes office on January 20, 2025.  That reality leads me to wonder just what kind of clemency process Trump and his team might adopt to review the huge universe of 1,500+ Jan. 6 defendants that may seek clemency. 

Notably, Trump during his first term showed little interest in utilizing the traditional (and traditionally slow) Justice Department process for reviewing clemency applications.  But he also only issued a few dozen clemency grants before his final year in office and many of those involve high-profile political cases.  In his final year in his first Term (and especially once he was a lame duck), Trump ramped up his clemency grants, though finishing with still less than 250 total grants over four years.  Carefully reviewing and making case-by-case clemency decisions for all the Jan. 6 defendants would be a massive undertaking that could easily take the Trump team years, and I have to think this work will not be the new administration's top priority.

Notably, President Obama's experiences with clemency in the final years of his seoncd term provides a possible template for this kind of work, though I doubt the Trump team is likely to follow this model.  Working with the Justice Department, as detailed here, the Obama Administration created Clemency Project 2014 (CP14) which set forth a set of criteria for a kind of preferred clemency review at the Justice Department and in the White House.  The administration of CP14 had all sorts of ups and down, but in the end it helped Prez Obama grant a record number of federal commutations (over 1700).  Might Trump create some kind of CP25 to deal with the Jan. 6 cases?  

Interesting times.

What could (and what should) happen with Prez-Elect Trump's upcoming New York state sentencing?

Various media outlets today are reporting, as articulated in the headline of this article in The Hill, that "Trump’s victory likely means curtains for criminal prosecutions."  For three of Prez-Elect Trump's four on-going criminal prosecutions, that basic analysis seems largely right.  But for his New York state case, with jury verdict of multiple convictions and sentencing scheduled for later this month, I think the dynamics are more uncertain and perhaps more interesting.  

I am inclined to presume that Trump's lawyers will now seek an (indefinite?) delay of the sentencing now scheduled for November 26.  And yet, I can construct an argument for why Trump and his lawyers might want the sentencing to just go forward now.  If NY criminal procedure does not allow Trump to appeal his convictions until a sentence is imposed, perhaps he would want the sentencing to go forward so he can then seeking to have all his convictions overturned on appeal.  I assume Trump could get his sentence, whatever its terms, stayed while appealing his conviction.

Speaking of possible sentencing terms, if the sentencing were to go forward in two weeks, it seem extremely unlikely that Justice Merchan would impose imprisonment or any onerous condictions of probation on a President Elect.  Having just been elected President of the United States is quite the unique changed personal circumstance to raise at sentencing, and it has to be a mitigating factor.  If real life was one big sit-com, perhaps Justice Merchan could come up with some comical and creative "shaming sentence" for Trump (eg, having him post a video on Truth Social about the importance of proper bookkeeping).  But I am not sure it would be good at all to risk turning the theater of Trump's sentencing into theatre of the absurd. 

Because the Supreme Court's ruling in Trump v. United States only formally addressed "conduct alleged to involve official acts during his tenure in office, that ruling still seems not directly applicable.  But now that Trump is President-Elect, his lawyers might reasonably seek to draw on that ruling as well as broader constitutional principles to try to derail the case entirely.  I doubt any party wants to engaged in robust and novel constitutional litigation at this point, thought it still seems like a possibility.  {Update: I just saw an article reminding me that Justice Merchan has stated he would rule on a pending motion to dismiss based in part on the Trump ruling by next week.  Specifically, in this order, he indicated that the "motion to set aside the jury verdict and to dismiss the indictment will be handed down off-calendar on November 12, 2024."] 

Finally, I cannot help but wonder if New York Governor Kathy Hochul might consider offering Trump a pardon for his New York convictions.  For political reasons, I assume she would not.  But it could be quite an interesting gesture from a prominent Deocratic offical and could be pitched as a stateperson's response to Trump's call "to help our country heal."  Of course, a pardon does not serve to fully erase a criminal conviction, and so Trump might not even except a pardon even if one was offered.

Interesting times.

"An Early Look At Trump's Supreme Court Shortlist"

In a number of prior posts, I expressed disappointment that now-Prez-Elect Donald Trump did not provide while on the campaign trial a Supreme Court short list as he had in both 2016 and 2020. But, helpfully, this morning Law360 has this new article with the headline that is the title of this post.  Here are excerpts for those already interested in SCOTUS speculating:

Trump didn't campaign heavily on the Supreme Court, instead focusing on issues like immigration and the economy. But his presumed win Wednesday would give him the chance to appoint two additional justices to the high court if either Justices Clarence Thomas, 76, or Samuel Alito, 74, decide to retire in the next four years. Neither Justices Alito nor Thomas have publicly announced plans to retire in the next four years, but they could strategically decide to step down to ensure like-minded justices succeed them.

Law360 took an early look at some of the judges whose names may top Trump's nominee shortlist.

The first three candidates all sit on the Fifth Circuit: U.S. Circuit Judges Stuart Kyle Duncan, Andrew S. Oldham and James C. Ho....

Next on the list is Sixth Circuit Judge Amul Thapar, who was appointed to the court by Trump in 2017 and has quickly become one of the leading so-called feeder judges whose clerks appear more likely to later clerk at the Supreme Court....

Another top feeder judge, D.C. Circuit Judge Gregory G. Katsas was appointed to the appellate court by Trump in 2017....

Ninth Circuit Judge Lawrence VanDyke, who was appointed to the court by Trump in 2020, could also be on the president's shortlist if a Supreme Court vacancy arises....

Several other names have been suggested as potential Supreme Court nominees, including Southern District of Florida Judge Aileen M. Cannon, the judge who dismissed Trump's classified documents federal indictment, and Kristen Waggoner, CEO and general counsel at Alliance Defending Freedom, the legal advocacy group behind recent religious freedom wins handed down by the Supreme Court.

It will be interesting to see in the coming months whether and how chatter about Justices Thomas and Alito stepping down develops.  Both are still relatively young by recent government service standard.  Not only are they years younger than now-Prez-Elect Donald Trump, but even by 2028, they will both still be at a younger age than the last three Justices to leave the Court.  (Justices Stephen Breyer and Anthony Kennedy were in their early 80s when they stepped down, Justice Ruth Bader Ginsburg was 87 when she passed away.)   And if Justice Thomas serves into 2028, he could end up the longest serving Justice of all-time. 

[Update: On the topic of age and the future federal judiciary, I just saw an article stating that "Senator Chuck Grassley (R-Iowa) will take the gavel of the Judiciary Committee."  Senator Grassley is 91 years old.  If Justices Thomas or Alito want to and are able to keep serving as Justices until they are Senator Grassley's vintage, they could remain on SCOTUS until the 2040s.]

Perhaps more important than age is the current composition of the Court.  With Supreme Court now comprised of a super-majority of conservative Justices, Justices Thomas and Alito in a sense have more power and influence on the Court's work now than ever before.  Though I am sure lots of folks are eager to imagine them replaced with younger jurists, I suspect they are in no rush to move on.   

Prior recent related posts:

• Is former Prez Trump going to release a new short list of possible Supreme Court nominees? 
• Am I the only one disappointed that former Prez Trump has not a new short list of possible Supreme Court nominees?

Initiative results in states show political pendulum swinging back on sentencing and drug policy reforms

I flagged in this postyesterday some of my pre-election coverage of some state initialtives on sentencing issues and drug policy reform.  And now, with results mostly tabulated, the votes in higher-profiles issues on the ballot on Election Day 2024 seem to be telling a fairly consistent story that voters have grown much less interested in progressive reforms than in past elections.

The higest-profile initiative in this space was California's Proposition 36, titled "Increase Sentences for Drug and Theft Crimes," and this New York Post piece highlights the outcome in its headline: "Californians overwhelmingly pass anti-crime Proposition 36 measure that Dem Gov. Gavin Newsom strongly opposed."  This New York Times' result tracker as of ths writing shows this initiative getting over 70% of the vote in the Golden State.  That number might come down as more ballots are counted, but it is quite notable that the initiative appears to be winning by double digits in every single county.

Colorado had a number of criminal justice initiatives that also appear to have been approved by voters including more funding for police training and limits on bail for some murder defendants.  And the sentencing related issue, Proposition 128, to limit parole eligibility for certain violent offenders as of now has over 62% of the vote.  This New York Times result tracker shows this initiative getting significant support in every county except Boulder.

The story on drug policy reform is a bit more nuanced.  Nebraska voters approved two medical marijuana reform initiatives by nearly a 70% vote, but on-going court challenges might preclude actual reforms.  Voters in both North Dakota and South Dakota rejected full marijuana legalization by roughtly 55% of the vote, though the vote was slightly more in favor of reform in North Dakota than for a similar initiative in 2022 and slightly less in favor in South Dakota compared to 2022. 

The biggest and most-watched marijuana reform initiative was Florida's Issue 3 seeking full legalization in the Sunshine State.  Voters in Florida favored this reform at nearly 56%, which is very close to the "yes" votes for full legalization in "blue" states like Colorado and Washington and Oregon and California and Massachusetts in years past.  But in Florida, unlike all those other states, a supermajority vote of 60% is needed for legalization.  I had thought now-Prez-Elect Donald Trump's endorsement of Issue 3 might get it past the post, but on this issue he did not move the needle enough for passage.

In addition, Massachusetts voters voted down by a large margin a ballot measure that would have legalized psychedelics for adults 21 and older.  Such reform has gotten voter approval in Colorado and Oregon in recent years, but the Bay State voters were disinclined to follow along.

An Election Day 2024 review and round-up on some sentencing fronts

I had the honor and privilege of casting my ballot a few days ago, and I always get a real thrill out of exercising the franchise.  Living in the greatest democracy in world history makes me so pleased and proud no matter how the voting turns out.  (I am also pleased that, at least for a few months, I'll no longer have to endure political commercial after political commercial or a steady stream of emails and texts asking for political donations.)  I hope voting proves as easy and as joyful for everyone else as it was for me.

Election 2024 has been about a lot of topics, many touching on criminal justice matters in various ways.  And, of course, the major candidates for president this year both have notable criminal justice histories.  Sentencing law and policy issues have arising in more than a few contexts, and the topical archive "Campaign 2024 and sentencing issues" includes notable and numerous posts on topics ranging from the death penalty to the First Step Act to puplic polling on crime issues and inmate surveys on political issues.

Because I am a big fan of direct democracy and the mertric it provides on how voters are thinking about specific issues, I am especially interest to see outcomes of a handful of ballot initiatives this year.  And here is a quick review of some recent posts spotlighting some of the criminal justice ballot measures I will be following:  

• Noting how California initiative to roll back Prop 47 is creating political divide 
• Rounding up some recent coverage and commentary on Prop 36 in California
• Noting some interesting data around Colorado's Proposition 128 to restrict parole eligibility
• Updated DEPC resource reviews "Drugs on the Ballot" 2024 (and in prior elections)
• Ever the criminal justice reform populist, former Prez Trump signals support for marijuana legalization in Florida and elsewhere

Of course, there are so many more issues and candidates that should be of interest for those following criminal justice reform and every other topic.  IN this area, I always recommend Bolts as a great resource for trying to keep up with a wide array of election (and crimianl justice) issues.  This helpful page "What’s on the Ballot" for 2024 is a great reminder of just how many decision the people get to make today.

Register for "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

The eve of Election Day 2024 seems like a good time to flag an online event on the presidential clemency power being hosted on December 10 by the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.   Here is the event page for the event where you will see this overview and list of panelists:

Both Barack Obama and Donald Trump closed out their presidential terms with a significant number of clemency grants, though the processes adopted by these two presidents differed dramatically. President Biden has already taken some notable clemency actions, though what might be in store for his clemency pen in his final months remains uncertain.  Perhaps even more uncertain: what should be expected regarding the future of the federal clemency power in the next presidential administration?

On December 10th, 2024, join us to hear a panel of experts discuss their perspectives on the past, present, and future of the President's Clemency Power.

Panelists
Mark Osler, Robert & Marion Short Distinguished Professor of Law, University of St. Thomas School of Law
Rachel Barkow, Charles Seligson Professor of Law; Faculty Director, Zimroth Center on the Administration of Criminal Law; NYU School of Law
Eric Luna, Amelia D. Lewis Professor of Constitutional and Criminal Law, Foundation Professor; Faculty Director, Academy for Justice; Arizona State University Sandra Day O'Connor College of Law
Larry Kupers, Former Deputy Pardon Attorney (Obama Administration); Former Acting Pardon Attorney (Trump Administration); Former Federal Defender

You can register for the Zoom event at this page.

Lots of Rahimi GVRs and a curious GVR in long-simering Eighth Amendment capital eligibility case in new SCOTUS order list

The Supreme Court is back in action this week, and this morning it released this notable new order list.  The start and end of the list will be of greatest interest for criminal justice fans.  At the start, we get seven GVRs of criminal cases from four different circuits needing "further consideration in light of United States v. Rahimi, 602 U. S. ___ (2024)."   I am not sure of the specifics of all these cases, but I am sure the Rahimi Second Amendment churn and uncertainty is not concluding anytime soon.

What is concluding, though, is uncertainty about what the Justices are doing with Hamm v Smith, a case the Court had relisted more than 25 times, I believe. (This recent post noted some recent speculation about the case.)  At the end of today' order list we find a two-page per curiam order sending the case back to the Elevent Circuit.  Here is how it starts and ends: 

Joseph Clifton Smith was sentenced to death for the murder of Durk Van Dam. The U.S. District Court for the Southern District of Alabama vacated Smith’s death sentence after concluding that he is intellectually disabled. See Atkins v. Virginia, 536 U. S. 304 (2002). Smith has obtained five full-scale IQ scores, ranging from 72 to 78. Smith’s claim of intellectual disability depended in part on whether his IQ is 70 or below.  The District Court found that Smith’s IQ could be as low as 69 given the standard error of measurement for his lowest score of 72.  The District Court then vacated the death sentence, and the U.S. Court of Appeals for the Eleventh Circuit affirmed.....

The Eleventh Circuit’s opinion is unclear on [its approach to multiple IQ scores], and this Court’s ultimate assessment of any petition for certiorari by the State may depend on the basis for the Eleventh Circuit’s decision.  Therefore, we grant the petition for certiorari and Smith’s motion for leave to proceed in forma pauperis, vacate the judgment of the Eleventh Circuit, and remand the case for further consideration consistent with this opinion.

JUSTICE THOMAS and JUSTICE GORSUCH would grant the petition for a writ of certiorari and set the case for argument.

This GVR conclusion to this long-simmering case may only enhance speculation about what various Justices might have considered the right approach to the broader issues of the Eighth Amentment jurisprudence this case could raise. It will be quite intriguing to see what the Eleventh Circuit might do upon remand and what might come before SCOTUS thereafter.  

For those interested in a bit more background, here is a new CNN article on the Hamm v. Smith disposition: "Supreme Court orders more review of Alabama’s request to execute inmate courts said is intellectually disabled."