By Robert Barnes
Washington Post Staff Writer
Thursday, January 18, 2007
It was death penalty day yesterday at the Supreme Court, coincidentally 30 years to the day since Gary Gilmore became the first person to be executed under the country's modern capital punishment laws.
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.
Several Supreme Court decisions have said that jurors also need to consider mitigating evidence, such as the IQ of the defendant or an abusive background.
In 2004, the court decided 7 to 2 in the case of LaRoyce Smith, who had murdered a Taco Bell manager in Dallas, that there were broad problems with the Texas law, which has since been changed. It sent the case back. The Texas Court of Criminal Appeals, nevertheless, reaffirmed the death sentence, saying that if an error was made, it was harmless to the outcome of the jury's decision.
And so Smith v. Texas (05-11304) was back before the Supreme Court yesterday, with Smith's advocates and others -- including four retired federal appeals court judges -- arguing that the state court ignored specific directions from the Supreme Court.
As Justice Ruth Bader Ginsburg put it, it was as though the state court were saying, "Thanks, thanks, that's very interesting advice," but we're deciding it on different grounds.
But the state appeared to have strong supporters in Chief Justice John G. Roberts Jr. and Justice Antonin Scalia.
Scalia said the Texas court decided that, though the mitigating evidence should have been presented more straightforwardly, it was in the best position to decide that such evidence would not have affected the jury's decision to sentence Smith to death. And Roberts defended the state's interpretations. "Why do we remand these cases for further proceedings not inconsistent with our opinion if there's nothing further to be considered?" he asked.
University of Texas law professor Jordan M. Steiker, representing Smith, said that the Texas court's actions were indeed contradictory and inconsistent.
Texas Solicitor General R. Ted Cruz said that complying with the Supreme Court's evolving decisions governing the death penalty "is not an easy task, and state and federal courts have struggled for two decades to draw the appropriate lines."
That struggle is evident on the court's docket, in which most of the death penalty cases come from the U.S. Court of Appeals for the 5th Circuit, which covers Texas and much of the South, and the San Francisco-based U.S. Court of Appeals for the 9th Circuit. "The Ninth looks so clearly from a defendant's perspective, and the Fifth looks at it from a prosecutorial perspective," Berman said.
Two of yesterday's cases, Abdul-Kabir v. Quarterman (05-11284) and Brewer v. Quarterman (05-11287), were appeals from the 5th Circuit. The high court in this term has already reversed a 9th Circuit decision that overturned a death sentence.
Dieter said the justices are "in a rather complex area of the law. Maybe they are trying to draw some lines down the middle."
Middle ground could be difficult for a court that has shown itself divided on important aspects of capital punishment. The swing vote on the issue seems to belong to Justice Anthony M. Kennedy, the only justice in the 5 to 4 majority both to uphold Kansas's death penalty and the Roper decision abolishing capital punishment for juveniles.