Supreme Court Faces Decisions On Where To Go Next With The Death Penalty

While some inmates and lawyers are asking the justices to take on the constitutionality of executions, other cases present more subtle questions about process.

WASHINGTON — Five months after two Supreme Court justices made clear that they have serious questions about the constitutionality of the death penalty, lawyers are bringing plenty of related cases to the justices — and they're due to consider whether to hear one of them this week.

When Justices Stephen Breyer and Ruth Bader Ginsburg disagreed with the court's ruling in June allowing Oklahoma to use the sedative midazolam in its execution protocol, they also made it clear — in Breyer's dissenting opinion — that they saw bigger problems with the death penalty, including whether the punishment itself is constitutional.

Criminal defense lawyers have responded by bringing three main types of death penalty cases to the court since then. Three petitions currently pending before the justices raise questions about trial process in capital cases, post-conviction process for death row inmates, and the overall constitutionality of the death penalty itself.

The justices are scheduled to consider whether to hear one of the challenges — a post-conviction process challenge — on Friday. The court potentially still could, however, agree to hear any of the three cases yet this term.

The effect of considering the cases, or even deciding them in the inmates' favor, could vary widely, however, because of the distinctions between the types of challenges.

Post-Conviction Process Challenge

While these challenges have the potential to open up federal courts to death-row inmates, they are the most purely procedural because they address how challenges brought by inmates after their convictions are handled.

In the petition seeking review brought by lawyers for Texas death-row inmate Robert Leslie Roberson III, the question is whether a truly independent lawyer needs to be appointed for an inmate who possibly could raise an ineffective assistance of counsel claim.

Roberson was convicted and sentenced to death for the 2002 killing of his daughter, Nikki Curtis. His conviction was upheld on direct appeal.

The Texas Defender Service's Lee Kovarsky is asking the justices to take the case. He has been opposed in letters sent to the justices by the lawyer who represented Roberson in his state and federal post-conviction proceedings, James Volberding, and the lawyer referred to as "supplemental counsel," Seth Kretzer — who Kovarsky argues has an ongoing relationship with Volberding. (Notably, these two lawyers also had their representation challenged in last-minute requests brought by Raphael Holiday, executed earlier this month.)

In the 5th Circuit where Roberson's appeal was heard, he argues, the only rule for such "supplemental counsel" is that the lawyer did not represent the client in state post-conviction proceedings. Other circuits, he counters, require that supplemental counsel "must operate independently of incumbent counsel." Texas, which also opposes the petition, argues that there is no such "circuit split" because, it asserts, both courts apply the same "interest-of-justice standard" for appointing supplemental counsel.

The justices are scheduled to consider Roberson's petition at their private conference on Friday.

If the justices take the case, a victory for Roberson would mean that new, truly independent supplemental counsel could be appointed to pursue his ineffective assistance of counsel claim. Such a ruling also could lead to more opportunities for death row inmates to have similar challenges pursued by new lawyers, with more opportunities for relief, but it would not directly alter any sentences.

Trial Process Challenge

Slightly more ambitious are challenges to the trial process — decisions that can, directly or indirectly, lead to the need for changed procedures, re-sentencing of death row inmates, or even orders for new trials altogether.

The court already has heard several of these types of cases this term. The cases raised questions about how jurors assess mitigating factors that weigh against imposing a sentence of death, the role of the judge in sentencing, and how reviewing courts must address claims of racial discrimination in jury selection.

In Kevin Charles Isom's case out of Indiana, his lawyers, led by Ben Cohen, raise the question of whether a unanimous jury must decide beyond a reasonable doubt that aggravating circumstances outweigh mitigating circumstances during the sentencing phase before deciding to impose a death sentence in a capital case.

Although the "beyond a reasonable doubt" standard is the well-known standard for a criminal finding of guilt, there is no such standard established for the sentencing phase of a capital trial.

Isom was convicted and sentenced to death in 2013 for the 2007 triple-murder of his family: Cassandra Isom, Ci’Andria Cole, and Michael Moore.

In detailing the issue presented to the court, Isom's lawyers note that there are 19 states with no death penalty, another seven that by statute or court ruling require a beyond-a-reasonable-doubt finding by the jury at sentencing, and, the petition says, "[t]he remaining death penalty jurisdictions are a patchwork with no discernible commonality." Indiana falls into that latter group, with juries having to "determine[] that the aggravating circumstances outweigh the mitigating circumstances," Isom's lawyers argue, but given "no burden of proof for the jury to make the moral determination."

The lawyers — leaning on longstanding concerns about the arbitrariness of the implementation of the death penalty — state that this "lack of uniformity has produced arbitrary results" in urging the justices to take the case.

Indiana's lawyers asked for a 30-day extension in responding to Isom's petition, according to Isom's lawyers, meaning its response would be due Dec. 28.

Frontal Constitutional Challenge

Shonda Walter, sentenced to death in Pennsylvania in 2005, has brought the most significant challenge to the justices, asking earlier this month for the court to address the fundamental question of the constitutionality of the death penalty head on.

"The question presented is whether, in all cases, the imposition of a sentence of death violates the Eighth Amendment’s prohibition against cruel and unusual punishments," Walter's lawyer, Daniel Silverman, writes.

Walter was convicted of murder and sentenced to death for the 2003 killing of an 83-year-old man, James Sementelli.

This is of course the most significant of claims that could be brought to the justices, as it asks for the court to end the death penalty across the board, across the country.

Walter's lawyer argues that the death penalty should be abandoned for two reasons: "First, our standards of decency have evolved to the point where the institution is no longer constitutionally sustainable."

"Second, the assumptions underlying this Court’s reinstitution of the death penalty after Furman have proved wrong, flawed, or illusory," Walter's lawyers continue. They argue the reliability of the process put in place since the 1970s cases ending and then approving the use of the death penalty still don't protect against wrongful executions — and that arbitrariness and racial discrimination remain.

The state's response is due Dec. 17, according to the Supreme Court's docket.