Supreme Court Report

Will the Supreme Court 'peck away at' capital punishment?

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On the final day of the term in June, a high-profile death penalty case exposed deep fissures and raw tensions on the U.S. Supreme Court, with two justices signing an opinion that said capital punishment was “very likely” unconstitutional.

Soon after their new term begins in October, the justices will again confront the death penalty in a handful of cases that present relatively modest questions and wouldn’t seem to be likely vehicles for continuing the larger debate over the future of capital punishment.

Still, the cases come along at an auspicious time. In its June 29 decision in Glossip v. Gross, the court ruled 5-4 to uphold the use of a controversial drug in Oklahoma’s execution protocol that was alleged to cause excruciating pain. In a separate dissent, Justice Stephen G. Breyer went beyond a discussion of the drug to raise grave doubts about the constitutionality of the death penalty in the country.

That was followed in August by a 4-3 Connecticut Supreme Court decision finding that the state’s death penalty no longer comports with societal values and serves no valid purpose as punishment. The decision, coming months after the Nebraska legislature voted to eliminate capital punishment, means that 30 states have either formally abolished the death penalty or have not carried out an execution in more than eight years.

“It’s a time when the death penalty is in retreat in this country,” says Sam Kamin, a professor at the Sturm College of Law at the University of Denver. “The question is: Will the Supreme Court continue to peck away at it?”


Kamin’s comment calls to mind a remark made from the bench by Justice Antonin Scalia during the announcement of the Glossip decision. Scalia, who voted with the majority, filed a concurrence that responded to Breyer’s dissent.

In an off-the-cuff statement from the bench, Scalia said, “Maybe we should celebrate that these two justices [Breyer and Justice Ruth Bader Ginsburg] are trying to kill [the death penalty] outright rather than peck it to death.”

In his dissent, Breyer wrote more than 40 pages about what he viewed as the “constitutional defects” of capital punishment—including its lack of reliability, its arbitrariness, the cruelty of the excessive delays in carrying it out, and how its decline in frequency has likely made it an “unusual” punishment that violates the Eighth Amendment.

Scalia, in his written concurrence, called Breyer’s argument “gobbledy-gook.”

“Time and again, the people have voted to exact the death penalty as punishment for the most serious of crimes,” Scalia wrote. “Time and again, this court has upheld that decision. And time and again, a vocal minority of this court has insisted that things have ‘changed radically,’ and has sought to replace the judgments of the people with their own standards of decency.”

With such clashes fresh on their minds, the justices will review new death penalty cases this term.

On Oct. 7, the court will hear arguments in cases from Kansas that raise procedural questions. The key question is whether the Eighth Amendment requires that a jury considering a death sentence be given explicit instructions pointing out that mitigating circumstances do not have to be proven beyond a reasonable doubt.

The Kansas Supreme Court concluded that such an instruction was required, and the state asked the U.S. Supreme Court to review Kansas v. Gleason and Kansas v. Carr.

On Oct. 13, the justices are scheduled to hear arguments in Hurst v. Florida, another case that addresses death penalty sentencing procedures.

In Florida, a defendant may not be sentenced to death without a factual finding of at least one aggravating factor. The jury weighs aggravating and mitigating factors, and it makes a recommendation to the trial judge about whether death should be imposed. The jury’s recommendation need not be unanimous.

But Florida law also requires the judge to independently weigh aggravating and mitigating factors. The judge must give the jury’s recommendation “great weight” under state precedents, but he or she can override the recommendation in extraordinary circumstances.


The Florida case involves Timothy Lee Hurst, who was convicted in the 1998 murder of the assistant manager of a Popeyes chicken outlet during an early morning robbery. In Hurst’s sentencing proceeding, the state presented evidence of two aggravating factors—that the murder had occurred during a robbery and that it was “especially heinous, atrocious or cruel” under state law.

The jury recommended death 7-5, without specifying the aggravating factor or factors it relied upon; and the trial judge sentenced Hurst to death, a decision upheld by the Florida Supreme Court.

Hurst’s appeal relies on a 2002 U.S. Supreme Court decision in Ring v. Arizona, which held that the Sixth Amendment right to a jury trial requires that the jury find all facts necessary for imposition of the death penalty, including sentencing aggravators.

“Florida’s capital sentencing scheme, however, assigns that fact-finding responsibility to the trial judge,” lawyers for Hurst say in a brief arguing that the state’s system violates the Sixth Amendment. “Although in Florida a jury renders an advisory verdict recommending a sentence, the jury makes no express findings as to aggravating factors, and its recommendation of death is neither necessary nor sufficient for imposition of the death sentence.”

Karen M. Gottlieb, the co-director of the Florida Center for Capital Representation at Florida International University in Miami, says that even after Ring, the Florida Supreme Court has upheld death sentences in which there is no indication that the jury found any single aggravating circumstance.

“You have no idea what aggravating factors a jury has found, or by what vote,” says Gottlieb, who helped write an amicus brief on Hurst’s side filed by several former state supreme court justices.

The American Bar Association, the American Civil Liberties Union and the Constitutional Accountability Center have also filed or joined amicus briefs on the defendant’s side.


The Florida Attorney General’s Office declined a request for comment, but its merits brief argues that Ring requires nothing more than a jury determination that at least one aggravating factor exists and thus the defendant is eligible for the death penalty.

Ring says nothing about who may decide whether a defendant eligible for the death penalty will actually receive the death penalty,” the state says in its brief. In fact, the existence of an aggravating factor making a defendant eligible for the death penalty is often determined at the guilt phase of a trial, not the sentencing phase, the state adds.

As the last state with such a “hybrid” system, Florida defends it on the grounds that “defendants whose crimes might inflame juries may benefit from judicial detachment and experience,” with judges sometimes rejecting the death sentence recommendation made by a jury.

Robert Blecker, a professor at New York Law School, who calls himself a “retributivist” supporter of the death penalty, says Florida’s system may be in trouble in Hurst. He says the court’s liberals, whom he presumes would vote for the defendant, might at least attract the votes of Justices Scalia or Clarence Thomas, based on Scalia’s concurrence in Ring.

In that concurrence, joined by Thomas, Scalia wrote, “I believe that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives—whether the statute calls them elements of the offense, sentencing factors or Mary Jane—must be found by the jury beyond a reasonable doubt.”

Blecker says that while the Florida and Kansas cases don’t directly raise the issue of the constitutionality of capital punishment, they may lead to one or two more “pecks” or “cuts” for the death penalty from a court with some members “determined to kill it by a thousand cuts.”

This article originally appeared in the October 2015 issue of the ABA Journal with this headline: “Death Revisited: Will the Supreme Court ‘peck away at’ capital punishment?”

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