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Cruel & Usual

The Supreme Court Shows No Signs of Slaking Its Thirst for Capital Punishment

A pair of death penalty decisions reaffirms a sad fact about the high court: There is a majority of justices who want to keep the executions coming.

Alex Wong/Getty Images
Protesters on the steps of the Supreme Court call for the abolition of the death penalty.

The Supreme Court does not consider every contentious legal issue in every term. Sometimes it hears abortion cases. Other times it hears religious freedom ones. Nearly a decade went by without a major ruling on Second Amendment cases by the justices. Some topics arise more often than others, but there are almost no guarantees when it comes to the court’s docket each term.

There is, perhaps one exception to this rule: capital punishment. The death penalty invariably follows the justices throughout each term and often in between them. Its presence is most often felt on the shadow docket, where eleventh-hour appeals mean that the Supreme Court essentially gives a thumbs up or thumbs down to almost every execution that occurs in the United States. Since the court effectively abolished capital punishment in 1972 and then brought it back in 1976, the justices have served as de facto administrators of America’s machinery of death.

Two cases this week may underscore how far the Supreme Court’s conservative supermajority will go to keep that machinery running. The justices heard oral arguments on Tuesday morning in one case that could determine whether a death row prisoner gets a chance to potentially exculpate himself through DNA testing. Another case, which the court declined to take up hours earlier, was brought by a man who claimed his trial was infected by racial bias—and that his lawyers did not do enough to keep it out.

The former case, Reed v. Goertz, is grounded in procedural concerns. A Texas jury convicted Rodney Reed for the 1996 murder of Stacey Stites, who was founded dead by the side of a road. Local police found semen inside Stites that was a DNA match with Reed. According to Reed, who is Black, he was having an affair at the time with Stites, who is white, which he says explains why his semen was present in her body. Reed has alleged that Stites’s real killer was her then fiancé, Jimmy Fennell—a white police officer who was the last person to see her alive. In Reed’s brief for the court, among other things, he cites testimony by the officer’s colleagues at the time that Fennell told Stites’s body at her funeral that she “got what [she] deserved.”

In 2001, Texas passed a law known as Article 64 that governs postconviction DNA testing. Reed applied in 2014 to have certain pieces of crime scene evidence tested in the belief that it would exculpate him. The local district attorney’s office declined to comply with his wishes. After years of legal battles in state courts, the Texas Court of Criminal Appeals ruled against Reed, holding that he had failed to show that testing would lead to exculpatory DNA results which would have acquitted him at trial. Reed then turned to the federal courts under Section 1983 in 2019.

The question before the justices is whether Reed waited too long to file his Section 1983 claim. The Fifth Circuit Court of Appeals dismissed Reed’s case by ruling that he should have filed it within two years of the state trial court’s final ruling against him in 2016. Reed argued that he correctly filed the lawsuit within the two-year window after the Texas Court of Criminal Appeals formally declined to rehear its previous ruling against him in 2017.

At oral arguments on Tuesday, there did not appear to be five clear votes for an alternative to the Fifth Circuit’s ruling, although some justices did not ask enough questions to signal where they might vote on the case. Only Justices Sotomayor, Kagan, and Jackson appeared ready to vote for Reed’s alternative rule, while Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas appeared skeptical of his proposed timeline.

The second case does not involve a claim of actual innocence. Andre Thomas told the Supreme Court in his petition for review that, during a schizophrenic episode in 2004, he stabbed and killed his estranged wife, their 4-year-old son, and her 13-month-old daughter. Thomas, who then stabbed himself but survived, told police that he was possessed by the belief that his victims were demonic figures. Five days later, while reading the Bible in his jail cell, Thomas came across Matthew 5:29, which reads in part, “If thy right eye offends thee, pluck it out.” He subsequently used his fingers to remove his own right eye. In 2008, four years after the killings, Thomas gouged out his other eye with his bare hands and ate it.

The state of Texas argued during his trial that Thomas was exaggerating his mental illness and attributed his state of mind during the murders to “consuming large amounts of cough syrup containing hallucinogenic dextromethorphan.” At trial, local prosecutors successfully shuffled almost all of the prospective Black jurors out of the top of the jury pool, and then struck the only remaining Black juror during voir dire, resulting in an all-white jury. Since Thomas is Black and his wife was white, the jury questionnaire included a multiple-choice question asking their thoughts on “people of different racial backgrounds marrying and/or having children.”

One juror checked a box indicating that he was “vigorously opposed” to the idea and was “not afraid to say so,” while two others checked a box that they “opposed” it but “try to keep [their] views to [themselves].” Thomas’s trial lawyer only briefly questioned one of the latter two jurors about their response to this question; he made no effort to strike or otherwise keep them off the jury. After his conviction, the trial then moved to the sentencing phase to decide whether Thomas should receive the death penalty after weighing mitigating and aggravating circumstances.

During closing arguments in that phase, the prosecutor urged the death penalty by asking the all-white jury if they could take the risk that Thomas would one day be paroled, “come back to Clayton County,” and “ask your daughter out, or your granddaughter out?” The prosecutor noted that women who were previously in relationships with Thomas had testified during the trial. “After watching the string of girls that came up here and apparently could talk him into—that he could talk into being with him, are you going to take that chance?” he asked. The jury ultimately voted to sentence Thomas to death.

Thomas sought to overturn his conviction on appeal, citing both racial bias in the jury selection process as well as ineffective assistance of counsel for his trial lawyer’s failure to prevent it. The state of Texas opposed Thomas’s lawyers by arguing, among other things, that he had failed to overcome the high procedural hurdles for capital appeals and that his trial lawyer had testified that he kept the jurors in question so that he could preserve his strikes and keep “much worse jurors” out of the pool.

The Supreme Court does not explain why it declines to hear specific cases, as it did in Thomas’s case on Tuesday. Nor did the three dissenting justices explain why the court had done so. “By failing to challenge, or even question, jurors who were hostile to interracial marriage in a capital case involving that explosive topic, Thomas’ counsel performed well below an objective standard of reasonableness,” Justice Sonia Sotomayor wrote in a dissent from the court’s refusal to take up the case. She was joined by Justices Elena Kagan and Ketanji Brown Jackson. Though the other justices’ votes are not recorded, it only takes four votes for the court to agree to hear a case, meaning that the other six justices must have all voted against it.

Sotomayor, for her part, signaled to her colleagues and the public that she thought the case was worthy of the court’s intervention. “This case involves a heinous crime apparently committed by someone who suffered severe psychological trauma,” Sotomayor wrote for the dissenting justices. “Whether Thomas’ psychological disturbances explain or in any way excuse his commission of murder, however, is beside the point. No jury deciding whether to recommend a death sentence should be tainted by potential racial biases that could infect its deliberations or decision, particularly where the case involved an interracial crime.”

I have written before on how the Supreme Court has made a sharp turn against death row defendants since Anthony Kennedy’s retirement in 2018. There are no signs that trend will abate any time soon. Roberts, as well as Thomas, Alito, and Justices Brett Kavanaugh and Neil Gorsuch have all consistently voted against death row inmates seeking relief in multiple ways, even in extreme and dubious circumstances. Alito is perhaps the most vocal justice on the subject, famously asking in 2015 why the court should “countenance a guerrilla war against the death penalty” by activists who convinced foreign drugmakers to block lethal injection supplies from reaching U.S. shores.

Some observers have closely watched Justice Amy Coney Barrett to see if she would prove more receptive to death row prisoners’ requests; she co-authored a law review article as a student in 1998 that contemplated how Catholic judges should reconcile their faith’s teachings on the subject with the law of the land. It’s worth noting that Barrett has joined the three liberals in dissent in certain emergency orders in capital cases. Her exact reason for those votes, as is typical with the shadow docket, hasn’t been fully explained. And in the Reed oral arguments, her questions suggested some deference towards Article 64’s intended role as a means to allow defendants to obtain exculpatory DNA testing. But even if she found herself in the same ideological middle once held by Kennedy, the court would still have five reliable votes in favor of keeping the machinery of death running at almost all costs.