capital punishment

Ayestas v. Davis

Issues

Is the Fifth Circuit’s “substantial need” test for awarding investigative resources to indigent defendants consistent with the requirements of 18 U.S.C. § 3599(f)?

Carlos Manuel Ayestas brought a state habeas petition after he was sentenced to death in Texas for murder. After the state denied his petition in 2008, Ayestas petitioned for federal habeas relief, alleging that he received ineffective assistance of counsel under the Sixth Amendment. Ayestas requested funding for “investigative, expert, or other services” under 18 U.S.C. § 3599(f) to help support his claim of ineffective assistance of counsel. Both the district court and the Fifth Circuit Court of Appeals dismissed Ayestas’s claim and denied his § 3599(f) motion, finding that he had not demonstrated a “substantial need” for investigative assistance. Ayestas now challenges this substantial need test on appeal, arguing that it is inconsistent with the text, history, and purpose of § 3599(f). The Director of the Correctional Institutions Division of the Texas Department of Criminal Justice, Lorie Davis, on the other hand, argues the test is proper in light of the requirements of the Antiterrorism and Effective Death Penalty Act. This case will allow the court to determine the appropriate statutory interpretation of § 3599(f), as well as its applicability to federal habeas proceedings. The case could have significant consequences for the resources available to capital defendants bringing ineffective assistance of counsel claims.

Questions as Framed for the Court by the Parties

Whether the Fifth Circuit erred in holding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an ineffective-assistance-of-counsel claim that state habeas counsel forfeited, where the claimant’s existing evidence does not meet the ultimate burden of proof at the time the § 3599(f) motion is made.

Petitioner Carlos Manuel Ayestas was convicted and sentenced to death for murder in 1995. See Ayestas v. Stephens, 817 F.3d 888, 892 (5th Cir.

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Brewer v. Quarterman; Abdul-Kabir, fka Cole v. Quarterman

Issues

1. Could the jury give constitutionally sufficient consideration to mitigating evidence of childhood abuse and mental illness through deliberations on the deliberateness of the defendant’s action or on his future dangerousness?

2. Even if it is theoretically possible that jurors could sufficiently consider such evidence, is it reasonably likely that the prosecution’s reminders to answer the questions narrowly prevented the jurors from actually considering such mitigating evidence?

3. Has the Fifth Circuit drawn and unconstitutional line by distinguishing chronic, untreatable mental illness from other mental illnesses?

 

Brent Ray Brewer and Jalil Abdul-Kabir, the petitioners in these cases, are two inmates on death row in Texas. They are seeking writs of habeas corpus from the federal courts to overturn their death sentences. During the sentencing phase of their trials, the jury was asked to determine whether the defendant killed “deliberately,” and whether he would constitute a “continuing threat to society.” The juries in both cases returned two “yes” answers, which dictated a sentence of death under state law. The inmates argue that these questions did not give the jury a meaningful basis on which to consider mitigating evidence of childhood abuse and mental illness. The United States District Court for the Northern District of Texas denied the habeas corpus petition for Abdul-Kabir but granted it for Brewer. The Fifth Circuit, in ruling for the state on both petitions on appeal, held that the jury instruction enabled the jury to consider mitigating evidence in their deliberations on the future dangerousness question. Therefore, it held that the state court did not misapply  federal  law, and the writ of habeas corpus could not be granted. The inmates disagree with this conclusion and are now making an as-applied challenge to the Texas statute before the U.S. Supreme Court. These cases could have a significant impact on the ongoing national debate about the appropriateness of applying the death penalty on the mentally ill.

Questions as Framed for the Court by the Parties

1. Do the former Texas “special issue” capital sentencing jury instructions—which permit jurors to register only a “yes” or “no” answer to two questions, inquiring whether the defendant killed “deliberately” and probably would constitute a “continuing threat to society”—permit constitutionally adequate consideration of mitigating evidence about a defendant’s mental impairment and childhood mistreatment and deprivation, in light of this Court’s emphatic statement in Smith v. Texas, 543 U.S. 37, 48 (2004), that those same two questions “had little, if anything, to do with” Smith’s evidence of mental impairment and childhood mistreatment)?

2. Do this Court’s recent opinions in Penry v. Johnson, 532 U.S. 782 (2001) (“Penry II”) and Smith, both of which require instructions that permit jurors to give “full consideration and full effect” to a defendant’s mitigating evidence in choosing the appropriate sentence, preclude the Fifth Circuit from adhering to its prior decisions—antedating Penry II and Smith—that reject Penry error whenever the former special issues might have afforded some indirect consideration of the defendant’s mitigating evidence?

3. Has the Fifth Circuit, in insisting that a defendant show as a predicate to relief under Penry that he suffers from a mental disorder that is severe, permanent or untreatable, simply resurrected the threshold test for “constitutional relevance” that this Court emphatically rejected in Tennard v. Dretke, 542 U.S. 274 (2004)?

4. Where the prosecution, as it did here, repeatedly implores jurors to “follow the law” and “do their duty” by answering the former Texas special issues on their own terms and abjuring any attempt to use their answers to effect an appropriate sentence, is it reasonably likely that jurors applied their instructions in a way that prevented them from fully considering and giving effect to the defendant’s mitigating evidence?

Brent Ray Brewer was convicted and sentenced to death in Texas for the murder of Robert Laminack. Petition for Writ of Certiorari at 2, Brewer v. Dretke, No. 05-11287 (May 30, 2006) (“Brewer Petition for Cert.”). At trial, counsel for Brewer introduced mitigating evidence indicating that Brewer suffered mental illness and an abusive childhood. Id. at 3.

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Bucklew v. Precythe

Issues

When an inmate with a rare and severe medical condition brings an as-applied challenge to a state’s method of execution, should the court assume that the execution will go as planned? And is the inmate constitutionally required to prove an alternative method of execution? Here, did Russell Bucklew meet his burden to prove the procedures of his proposed alternative method and the degree of pain he would likely suffer, and did he show how they compare to the method he challenges?

This case asks the Supreme Court to determine whether a death row inmate challenging an execution method must prove a feasible alternative execution method when the challenged method will allegedly inflict an unconstitutional level of pain as applied to the inmate’s medical condition. Russell Bucklew argues that the state should bear the burden of proving an alternative method in such an “as-applied” challenge. He reasons that because there is no risk that the challenged execution method will be outlawed in its entirety and because the state is in the best position to evaluate the effect of existing execution methods on the inmate’s medical condition, the Court should place the burden on the state. The Department of Corrections (“DOC”) argues that the inmate in an “as-applied” challenge case should bear this burden. The DOC notes that the inmate would be able to obtain an exemption from capital punishment and needlessly delay their execution by bringing meritless claims if the Court placed the burden on the state rather than on the inmate. The Supreme Court’s decision in this case will impact the ability of inmates to challenge execution methods, the administrability of common execution methods such as lethal injection, and the effect of the capital punishment process on drug regulators, physicians, and state corrections officers.

Questions as Framed for the Court by the Parties

  1. Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that the procedure will go as intended;
  2. Whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate;
  3. Whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition; and
  4. Whether petitioner Russell Bucklew met his burden under Glossip v. Gross to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution.

In March 1996, Russell Bucklew followed his former girlfriend, Stephanie Ray, to the trailer home of Michael Sanders, where she was living. Bucklew v. Precythe (“Precythe”) at 1–2. Bucklew entered the trailer and shot Sanders. Id. While Sanders bled to death, Bucklew handcuffed Ray, dragged her into his car, and drove away.

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Cruz v. Arizona

Issues

Does Arizona’s requirement of a “significant change in law” before filing a petition for postconviction relief prevent the United States Supreme Court from reviewing the Arizona Supreme Court’s interpretation of federal law?

Court below

This case asks the Supreme Court to consider whether an Arizona Rule of Criminal Procedure, which only allows postconviction relief if there has been a significant change in law to make it an adequate and independent state-law ground for the judgment, prevents federal review. Petitioner John Montenegro Cruz claims that the rule cannot apply because it conflicts with the Supreme Court’s precedent requiring the application of settled rules of constitutional law on postconviction review. Cruz also asserts that the rule requires consideration of federal law, and thus that the Supreme Court may review determinations made under it for consistency with federal law. Respondent, the state of Arizona, argues that its Rule prevents federal review because it is premised on a matter of state law, rather than federal law. Arizona asserts that its rule only regulates when a claim may be brought, not the rule to be applied when evaluating the claim.

Questions as Framed for the Court by the Parties

Whether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1 (g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.

In 2005, John Montenegro Cruz was convicted of first degree murder for killing a police officer and was sentenced to death in a jury trial. State v. Cruz at 992.

Acknowledgments

The authors would like to thank Professors John Blume and Keir Weyble for their guidance and insights into this case.

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Hall v. Florida

Issues

Does Florida’s use of a cutoff IQ to establish mental retardation violate Atkins v. Virginia’s ruling that executing mentally retarded criminals violates the Eighth Amendment’s protection against “cruel and unusual” punishment?

Court below

The state of Florida sentenced Freddie Lee Hall to death on September 9, 1982 for murdering Karol Hurst. Hall challenged his sentence multiple times, and the Florida state courts vacated and reinstated the sentence each time. During one resentencing trial, the court found Hall to be mentally retarded. At an evidentiary hearing to determine his mental competence, the court found that Hall’s IQ exceeded the minimum cut-off for mental retardation in Florida. Hall’s most recent challenge therefore involves the 2002 Supreme Court decision in Atkins v. Virginia, which held that executing mentally retarded criminals violates their Eighth Amendment right against “cruel and unusual punishment.” Hall argues that Florida’s measure of mental retardation, which uses an IQ score cutoff, violates Atkins, and that Atkins prohibits Florida from executing him. Florida argues that the state’s definition of mental retardation complies with Atkins. In turn, the state asserts that under its definition of mental retardation, Hall can be executed. This case could determine whether Florida can execute Hall and, more broadly, states’ ability to establish standards for mental retardation based on IQ testing.

Questions as Framed for the Court by the Parties

Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.

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Facts

On September 9, 1982, the governor of Florida signed Freddie Lee Hall's death warrant for the murder of Karol Hurst, after Hall was tried and convicted in Putnam County and the Florida Supreme Court upheld the conviction. See Hall v. State,  109 So. 3d 704, 705–706 (Fla. 2012). After his appeals to the Florida state courts failed, Hall filed an appeal in federal court. See id.

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Hamm v. Smith

Issues

When defendants claiming an intellectual disability under Atkins have multiple IQ scores, how, if at all, should courts consider the cumulative effect of the IQ scores? 

Respondent Joseph Smith is challenging a death sentence for murder by claiming an intellectual disability under an Alabama state law Atkins-like framework. The first prong of the test requires claimants to prove, by a preponderance of the evidence, that they have an intelligence quotient (“IQ”) score below 70. While Smith has had five IQ tests over 70, one of the tests includes 69 within its 95% confidence interval. Petitioner John Hamm argues that Smith’s higher IQ scores prevent Smith from meeting his burden of proof on this first prong, so Smith cannot use the intellectual disability defense to escape execution. Smith, on the other hand, argues that his scores are borderline and inconclusive, so the Eighth Amendment of the U.S. Constitution and Alabama state law both permit him to use additional evidence to prove his intellectual disability. This case raises questions of victims’ interests in efficient and complete justice, the right to not be subject to cruel and unusual punishment, and states’ rights to develop and enforce their own criminal code, including sentencing preferences.

Questions as Framed for the Court by the Parties

Whether and how courts may consider the cumulative effect of multiple IQ scores in assessing an Atkins claim.

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Harbison v. Bell

Issues

1. Does a defendant who is appointed a federally funded lawyer for a habeas corpus claim also have a right to use the federally funded lawyer for representation in state clemency hearings?

2. Must a defendant wait until the final judgment of a state court and obtain a certificate of appealability to appeal an order denying assistance of federally funded counsel for a clemency hearing?

 

The Terrorist Death Penalty Enhancement Act of 2005, codified at 18 U.S.C. § 3599, provides indigent defendants in death penalty cases the assistance of federally funded lawyers. Edward Jerome Harbison was convicted of first degree murder by a Tennessee jury and sentenced to death. Harbison requested the retention of his federally provided lawyer for his state clemency proceedings. This request was denied, as the United States Court of Appeals for the Sixth Circuit found that § 3599 does not apply to strictly state proceedings. Harbison appeals this ruling, arguing that the language of § 3599 indicates it applies to all death penalty proceedings, including state clemency proceedings. Although the respondent, Warden Ricky Bell, takes no position on this issue, amicus United States argues that Congress intended § 3599 to apply exclusively to federal proceedings, and that the legislative history supports this interpretation. With its decision in this case, the Supreme Court may resolve a split of opinion among the federal circuit courts regarding the scope of § 3599.

Questions as Framed for the Court by the Parties

Every jurisdiction that authorizes the death penalty provides for clemency, which is of vital importance in assuring that the death penalty is carried out justly. But, in this case the District Court held Mr. Harbison's federally-funded lawyers could not present, on his behalf, a clemency request to Tennessee's governor. The denial of clemency counsel contravenes basic principles of justice. As Chief Justice Rehnquist noted in Herrera v. Collins.

Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted. Indeed, the clemency power exists because "the administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt."  Thus, executive clemency is the "fail safe' in our criminal justice system."  A system which includes capital punishment but does not provide a meaningful opportunity for executive clemency is "totally alien to our notions of criminal justice."

Yet, the lower courts arbitrarily denied Mr. Harbison's federally-funded habeas counsel permission to represent him in state clemency proceedings after the State had denied him counsel for that purpose. The District Court and the Court of Appeals for the Sixth Circuit not only defied Congress' explicit directions to provide clemency counsel for the condemned, but denied Mr. Harbison a meaningful opportunity to present compelling facts mitigating his guilt and the punishment of death to the only person presently able to consider them, the Governor of the State of Tennessee.

Equally troubling, the Sixth Circuit barred Harbison from appealing the denial of clemency counsel by refusing to grant a certificate of appealability on the issue. In order to harmonize the law of the circuits and to decide an important issue regarding the appeals court's jurisdiction, this Court should resolve the following questions:

1. Does 18 U.S.C. §3599(a)(2) and (e) (recodifying verbatim former 21 U.S.C.§848(q) (4)(B)and (q) (8)), permit federally-funded habeas counsel to represent a condemned inmate in state clemency proceedings when the state has denied state-funded counsel for that purpose?

2. Is a certificate of appealability required to appeal an order denying a request for federally-funded counsel under 18 U.S.C. §3599(a)(2) and (e)?

In 1983, a Tennessee jury convicted Petitioner Edward Jerome Harbison of first-degree murder, second-degree burglary, and grand larceny, and sentenced him to death. See Harbison v. Bell,503 F.3d 566, 567 (6th Cir.

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Kansas v. Carr

Issues

This case will be heard along side Kansas v. Gleason (14-552). Read our preview here.

Is a joint capital sentencing proceeding between two brothers sufficiently prejudicial to  require severance, and must a jury contemplating capital punishment be instructed that mitigating circumstances “need not be proven beyond a reasonable doubt?”

Court below

The Supreme Court will determine whether a joint capital-sentencing proceeding between two brothers and a jury instruction that does not affirmatively state mitigating circumstances “need not be proven beyond a reasonable doubt” violate the Eighth Amendment. See Brief for Petitioner, the State of Kansas at i. Kansas argues that the circumstances did not require severing the penalty hearings given the jury instruction and interrelated nature of the Carrs’ upbringing, and there is no affirmative duty to instruct juries that mitigating circumstances need not meet any particular burden of proof. See id. at 25, 54. Jonathan and Reginald Carr argue that severance was required because the sentencing proceeding was prejudicial, and the jury instructions were misleading and prevented the jury from properly weighing the mitigating circumstances. See Brief for Respondent, Jonathan D. Carr at 17–18, 43; Brief for Respondent, Reginald Dexter Carr, Jr. at 16, 34. The Court’s ruling will likely affect the severance standard used in multi-defendant capital punishment cases and how jurors are instructed in such cases. See Brief of Amicus Curiae The Promise of Justice Initiative (“PJI”), in Support of Respondents at 2; Brief of Amici Curiae Criminal Justice Legal Foundation (“CJLF”) et al., in Support of Petitioner at 7.

Questions as Framed for the Court by the Parties

  1. Whether the trial court’s decision not to sever the sentencing phase of the co-defendant brothers’ trial here—a decision that comports with the traditional approach preferring joinder in circumstances like this—violated an Eighth Amendment right to an “individualized sentencing” determination and was not harmless in any event?
  2. Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances “need not be proven beyond a reasonable doubt,” as the Kansas Supreme Court held here, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances?

Brothers Jonathan and Reginald Carr were found guilty of committing several violent crimes, including capital murder, stemming from three incidents that occurred in December 2000 in Wichita, Kansas. See State v. Carr, 331 P.3d 544, 573–74 (Kan.

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Kansas v. Gleason

Issues

This case will be heard alongside Kansas v. Carr (14-449, 450). Read our preview here.

Must courts explicitly instruct juries about the relevant burden of proof for mitigating circumstances in capital murder cases?

Court below

 

The Supreme Court will consider whether, in capital murder cases, jury  instructions given  in the penalty phase that  fail  to affirmatively state that mitigating circumstances need not be proven beyond a reasonable doubt violate the Eighth Amendment of the U.S. Constitution. See Brief for Petitioner, State of Kansas at i. Gleason argues that his Eighth Amendment right was violated  because  a problematic jury instruction, which lacked an affirmative statement about the appropriate burden of proof, likely precluded individual jurors from considering relevant mitigating evidence. See Brief for Respondent, Sidley J. Gleason at 11. On the other hand, Kansas maintains that Gleason’s Eighth Amendment right was not  violated,  because the jury properly applied the mitigating circumstances without confusion during deliberations. See Brief for Petitioner at 21–22. The Court’s decision could change how states instruct juries in capital murder cases and may lead courts to reexamine prior convictions. See Brief of Amici Curiae Criminal Justice Legal Foundation (“CJLF”) et al., in Support of Petitioner at 7–8.

Questions as Framed for the Court by the Parties

Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances “need not be proven beyond a reasonable doubt,” as the Kansas Supreme Court held here, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances?

On February 12, 2004, Sidney Gleason, Damien Thompson, Ricky Galindo, Brittany Fulton, and Mikiala Martinez robbed Paul Elliott at knifepoint in his home in Great Bend, Kansas. See State v. Gleason, 329 P.3d 1102, 1113–14 (Kan.

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Madison v. State of Alabama

Issues

Does the prohibition of cruel and unusual punishment under the Eighth Amendment bar the execution of a prisoner with vascular dementia, who has no memory of his crime and the circumstances surrounding his imprisonment?

The Supreme Court will decide if it is lawful to execute a man who—years after committing murder—developed vascular dementia that affects his ability to understand his surroundings and prevents him from remembering the facts of his crime. Petitioner Vernon Madison contends that a broad range of mental conditions can prohibit defendants from understanding the circumstances of their executions and thus should prevent lawful execution of such defendants. The State of Alabama counters that a defendant’s memory of the murder is irrelevant to the analysis of whether the defendant’s execution is unlawful under the Eighth Amendment. The American Psychological Association and the American Psychiatric Association, in support of Madison call for an expansion of the category of mental disabilities that can render a person incompetent to be lawfully executed and contend that the execution of inmates with dementia would not serve deterrence purposes. However, fourteen states writing in support Alabama distinguish dementia and other age-related disabilities from intellectual disability and add that the retributive aspects of the death penalty are important enough to allow the execution of inmates with dementia and other age-related mental disorders. Accordingly, the Court’s decision will affect defendants who are exempt from execution as well as the litigation strategy of death row inmates as they approach the age of onset for age-related mental disorders during the lengthy appeals process.

Questions as Framed for the Court by the Parties

Whether, consistent with the Eighth Amendment, and the Supreme Court’s decisions in Ford v. Wainwright and Panetti v. Quarterman, a state may execute a prisoner whose mental disability leaves him with no memory of his commission of the capital offense.

Whether evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition that prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution.

In 1985, Petitioner Vernon Madison shot and killed Officer Julius Schulte in Mobile, Alabama and was sentenced to death by a jury for capital murder.

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Acknowledgments

The authors would like to thank Professor John H. Blume for his insights.

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