For a few minutes Monday morning the future of the death penalty in America looked in dire straits.
The US Supreme Court announced that it would hear two capital cases from Texas next term, cases that would question the constitutionality of the practice on multiple levels, including how capital defendants are sentenced and how they are treated on death row.
But the court quickly scaled back expectations that the death penalty itself was on the line by clarifying that they will not be considering one key question – whether decades-long stays on death row violate the Eighth Amendment. The court will instead focus on two narrow questions about what kind of defendants should be sentenced to death.
But while neither of these cases are likely to spell the end of capital punishment in America, experts say, they are likely to further erode the practice.
Removing the confinement question “doesn’t make the case inconsequential, but it lowers the stakes considerably,” says Douglas Berman, a professor and death penalty expert at Ohio State University’s Moritz College of Law.
Not 'the' case
The more recent case concerns the role race may play in death penalty sentencing. Duane Buck, an African-American, was convicted of murdering his ex-girlfriend and another man at her apartment in July 1995. He was given the death sentence after a psychologist testified under cross-examination that black people were more likely to pose a future danger to society.
Mr. Buck argues in his petition to the Supreme Court that his trial lawyer had been ineffective and that his death sentence was tainted by racial bias. His case raises “a pressing issue of national importance: whether and to what extent the criminal justice system tolerates racial bias and discrimination.”
“This is a question about a very particular, but I would say a particularly crucial, failing of the death penalty, and that’s race discrimination,” says Elisabeth Semel, director of the Death Penalty Clinic at the University of California, Berkeley. “It certainly focuses on one of the more pernicious aspects of death penalty, but I don’t think the lawyers who brought it, nor the court, see it as the case” that could end the death penalty, she adds.
The second case isn’t “the” case either, but it could also have significant implications. Bobby Moore has been on death row since 1980 for fatally shooting a grocery store clerk during a robbery. He’s been held in solitary confinement nearly 23 hours a day for the past 15 years – in cells described by some as “incubators of psychoses” – but the court has declined to consider whether his confinement violates the Eight Amendment’s prohibition against cruel and unusual punishment.
Instead, the court will limit arguments in the case to another Eight Amendment protection, decided in the 2002 case Atkins v. Virginia, that executing people with intellectual disabilities constitutes cruel and unusual punishment.
Mr. Moore argues in his petition that the Texas Court of Criminal Appeals used outdated medical standards in evaluating whether his intellectual disability was severe enough to prohibit his execution, standards that include invoking the fictional character Lennie from John Steinbeck’s "Of Mice and Men" as “exactly the sort of person” who should not be executed.
The cases should be relatively straightforward for the court, experts say – the justices rarely agree to hear challenges to lower court decisions unless they plan to uphold them. If the court had also agreed to consider whether long stays in solitary confinement – a condition for many inmates in prisons across America – were unconstitutional, it may not have been so straightforward, according to Franklin Zimring, director of Criminal Justice Studies at the UC Berkeley School of Law.
“The problem with solitary confinement is … it has such vast non-capital punishment implications that it would scare the hell out of the court,” he adds.
“The definition of intellectual disability,” he continues, “if you’re looking for something right up Justice [Anthony] Kennedy’s alley, that looks much more like a winner.”
Yet death penalty abolitionists were excited by recent noises out of the court. The Ronald Reagan-appointed Justice Kennedy expressed concern about long stays in solitary confinement in 2014 and again in 2015. The nearly 3,000 death row inmates in America wait over 15 years to be executed, on average.
“If Moore wins, not only could he get off death row, but many inmates in his position could follow,” Stephanie Mencimer reported for Mother Jones last week.
'An opportunity to speak broadly'
What the court will be deciding will be much narrower, and will likely maintain the current pace of decline of the death penalty, reformers say, rather than accelerate it.
“I think the court is doing what the court has always done. It is looking at problem areas in the administration of the death penalty, and deciding whether they’re sufficiently problematic to warrant review,” says Robert Dunham, executive director of the Death Penalty Information Center, a national nonprofit that supports abolishing capital punishment.
“The direction in which the court has moved in this century has been – not uniformly, but by some measures – to restrain the use of the death penalty,” says Professor Semel.
In particular, she notes, the court has ended the death penalty for juveniles and for cases in which there was no murder, has ruled the death sentences must be delivered by juries, not judges, and has broadened the definition of "intellectual disability" that can bar death sentences.
Decisions in these two cases could also further clarify the justices’ thoughts on capital punishment more broadly, says Professor Berman.
“This is why every capital case is significant, because it’s an opportunity to turn it into more,” he adds, citing a case last year about execution protocols where both justices Stephen Breyer and Ruth Bader Ginsburg in dissent declared the death penalty unconstitutional.
“Every capital case they take gives them an opportunity to speak broadly,” he adds. “I think these cases are going to be another small piece in a very big story.”