When
the last U.S. Supreme Court term ended in June with an unusual showdown over a
decision approving Oklahoma's lethal injection process, some court watchers saw
it as a sign the court might soon take up the bigger question of the
constitutionality of the death penalty itself.
But more recent signals from the court
suggest that such a broad ruling is not likely any time soon, even though there
are three death-penalty cases already on the docket for the new term, which
begins Oct 5.
In the June case, which upheld Oklahoma's procedures
by a 5-to-4 margin, liberal justices Stephen Breyer and Ruth Bader Ginsburg
joined in a dissenting opinion that called for a full reexamination of capital
punishment. As currently applied, Breyer wrote, the death penalty "likely
constitutes a legally prohibited 'cruel and unusual punishment.'"
Within two weeks of that June 29 decision, however,
Breyer and Ginsburg indicated that they don't intend to raise their concerns in
every death penalty case that comes before them.
On July 14, the court rejected last-minute stay
applications filed by Missouri inmate David Zink. In one of his court filings,
Zink had asked the court to rule that the death penalty was unconstitutional.
The court often rejects stay-of-execution applications
without comment or a record of how justices voted, but it does note if justices
publicly dissent, and neither Breyer nor Ginsburg did.
This month, the court rejected a similar stay
application from another Missouri inmate, Roderick Nunley. Again, neither Breyer
nor Ginsburg publicly dissented and the inmate was executed.
Their silence indicated that Breyer and Ginsburg were
"not quite in the category of adamant opposition in all cases," said
Kent Scheiddeger, legal director of the pro-death penalty Criminal Justice
Legal Foundation.
In any
event, since four votes are needed to accept a case for consideration by the
court, Breyer and Ginsburg would need two more justices to join them in support
of hearing a case directly challenging the death penalty.
Fellow
liberal justices Sonia Sotomayor and Elena Kagan also dissented in the Oklahoma
case, but neither joined Breyer's opinion.
The
court's conservatives would be expected to uphold the death penalty, with
Justice Anthony Kennedy, a conservative appointed by President Ronald Reagan,
likely to be the swing vote. He joined liberals in the majority in 2002, when
the court banned death sentences for the mentally disabled, and in a 2005 case
in which the court said that people sentenced to death for offenses committed as
juveniles could not be executed. But he voted with his fellow conservatives in
June's lethal injection case.
Some
death penalty experts have suggested that Breyer's dissent in the Oklahoma case
may have been carefully aimed. He was "writing not just for the public,
but for Justice Kennedy," said Robert Dunham, executive director of the
Death Penalty Information Center, a nonprofit that tracks the issue and does
not take a stand on whether capital punishment should be abolished.
NIBBLING AROUND THE EDGES
Although
death penalty opponents are now on alert that Breyer and Ginsburg are
interested in a case that squarely attacks the death penalty, it could take
time for the right case to come to the court. In the meantime, if the
court-watchers' interpretations of Breyer and Ginsburg's moves this summer are
accurate, the justices will likely continue to consider more discrete legal
issues that nibble around the edges of the bigger constitutional question.
The
case this fall most likely to attract public attention to capital punishment
involves allegations of prosecutorial misconduct in Georgia. In that case, a
black man, Timothy Foster, was sentenced to death by an all-white jury, and the
question before the Supreme Court will be whether prosecutors unlawfully struck
potential black members of the jury. [ID: nL1N0YH22B]
Two
other cases scheduled for the session will focus on narrower, state-specific
issues concerning the death penalty process in Kansas and Florida.
The
high court has not seriously debated the constitutionality of the death penalty
since the 1970s. In 1972, the justices effectively suspended it in the landmark
Furman v. Georgia decision, ruling that the punishment was being imposed
unconstitutionally. But the decision allowed states to re-write their laws to
address the problem. Within four years, the court had approved new standards
for death penalty cases, saying that, if states conformed to them, the
punishment was constitutional.
The
death penalty is on the books in 31 states, and the federal government also
authorizes the punishment in cases it prosecutes.
There
are signs that the U.S. public is turning away from the death penalty. The
number of death sentences imposed fell to a 20-year low in 2014, according to
the Death Penalty Information Center.
The
high-profile ruling in June, Glossip v. Gross, came at a time of increased
focus on the death penalty following several botched executions. The lead
plaintiff in that case, convicted murderer Richard Glossip, received a last
minute stay from the Oklahoma Court of Criminal Appeals on Sept. 16, after
filing new court papers claiming his innocence. His execution has since been
rescheduled for Sept. 30 absent further court intervention.
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