Bloomberg Law
July 24, 2020, 8:00 AM

INSIGHT: The Roberts Supreme Court’s Death Spiral

Jenny-Brooke Condon
Jenny-Brooke Condon
Seton Hall University School of Law

Appraising Chief Justice John Roberts’ efforts to guard the U.S. Supreme Court’s institutional integrity in major decisions this term, one must also consider decisions allowing the federal government to resume executions after a 17-year moratorium.

These decisions contribute to a far less flattering Roberts court legacy: A judiciary unfazed by the death penalty’s arbitrariness, undeterred by the risk of torturous deaths, and impatient in the face of late-stage executions challenges, even those presenting substantial issues.

A deadly pandemic and nationwide demands to reckon with the criminal justice system’s institutional racism and unfairness have not tempered the court’s eagerness to implement death sentences. Following Justice Brett Kavanaugh’s replacement of Justice Anthony Kennedy last term, finality is the paramount value driving the Roberts court’s death penalty jurisprudence. This is so even as the court’s four liberal justices in a series of increasingly fractious dissents demand fairness, accuracy, and humane punishment.

Invalidating Two Lower Court Stays

In two, 5-4, middle-of-the night decisions issued July 14 and July 15, the court invalidated lower court stays in cases challenging the Department of Justice’s decision to proceed with four federal executions. On July 14, the court allowed Daniel Lewis Lee to be executed even though his co-defendant, the more responsible perpetrator, received a life sentence. As Justice Stephen Breyer noted in a dissent, the disparate sentences for the same crime reveal the death penalty’s intractable arbitrariness.

The court also allowed the DOJ to press forward notwithstanding an evidentiary dispute about the cruelty of the federal government’s execution method. In its per curiam decision in the Lee case, the court acknowledged expert evidence showing that the lethal injection drug pentobarbital can cause “respiratory distress that temporarily produces the sensation of drowning or asphyxiation.”

But the court deemed the evidence insufficient to warrant further proceedings based on dueling evidence from the government. The DOJ claimed that such distress “occurs only after the prisoner has died or been rendered fully insensate.”

A dispute about the cruelty of an execution method of course does not resolve its legality. The lower courts wanted time to address and evaluate the issue, but the Supreme Court cut off that process before it began, accepting the government’s claim without testing. Interceding to upend lower court deliberation is now a hallmark of the Roberts court’s death penalty jurisprudence.

In overruling the lower court stay in Lee’s case, the court cited its decision last term in Bucklew v. Precythe. That decision prejudged and disparaged all late-stage execution “challenges as tools to interpose unjustified delay.” As in Bucklew, the court cited respect for the political judgments of “the people and their representatives” on the question of capital punishment as justification for dissolving the stay. This verges on judicial gaslighting.

Focus on Method of Execution, Not Constitutionality

Challenges to the federal executions addressed whether the method of execution constituted cruel and unusual punishment under the Eight Amendment but did not attack the constitutionality of the death penalty. The court claimed the mantle of judicial restraint to appear a disinterested protector of the political process, even as it engaged in an act of bald judicial overreaching.

As Justice Elena Kagan noted in a dissent last term, the court’s willingness to override lower court stays to facilitate immediate executions breaks from its typical hesitancy to “interfere with the substantial discretion courts of Appeals have to issue stays when needed.” Kagan made that point in the case of Domineque Ray, a Muslim prisoner executed in Alabama in February 2019 notwithstanding serious questions regarding whether Alabama’s refusal to provide him with a Muslim spiritual adviser during his execution violated the Establishment Clause.

The court also overturned a lower court stay last term in Dunn v. Price which would have allowed for consideration of whether Price had elected a more humane method of execution under the court’s precedents. At the time, it seemed an unusual violation of decorum that the court invalidated the stay when Breyer in a middle-of-the-night dissent made clear that he requested that the justices discuss the case at the court’s next conference.

Fractious, middle-of-the night decisions pushing forward executions and interfering with lower courts’ discretion to issue stays should no longer surprise. This is a feature of the Roberts court’s death penalty jurisprudence, as is the court’s prolonging of America’s unresolved crisis of racially biased state killing.

Race Will Continue to Bias Death Penalty’s Administration

Racial injustice permeates America’s system of capital punishment and the Supreme Court has been unwilling to stop it. Evidence has long indicated that the race of victims and those accused of capital crimes influences policing, charging, and sentencing decisions.

Resuming federal executions, even though the first four prisoners are white, will inevitably allow race to continue to bias the death penalty’s administration.

In 2008, Kennedy wrote in a case invalidating the death penalty that “when the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”

The Roberts court’s eagerness to implement death sentences even in a deadly pandemic and notwithstanding calls to reckon with the criminal justice system’s institutional racism and unfairness reveal a court on a downward spiral. The constitutional commitment to decency and restraint will only be restored when the death penalty is abolished.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Jenny-Brooke Condon is a professor of law at Seton Hall Law School in the Center for Social Justice where she directs the Equal Justice Clinic. She teaches constitutional law and represents a man on death row in Alabama. Her article “Denialism and the Death Penalty” was published by Washington University Law Review.