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U.S. Supreme Court Allows Texas’ First Pandemic Execution (1)

July 8, 2020, 11:18 PMUpdated: July 9, 2020, 1:05 AM

The U.S. Supreme Court declined to hear an appeal seeking to expand the law barring executing juvenile offenders in a case that could have impacted 45 Texas death row inmates.

In rejecting a reprieve for Billy Joe Wardlow, leading to his execution in Texas on Wednesday evening for killing an elderly man during a 1993 robbery when he was 18, the high court signaled it wasn’t interested in his claim that he was too young at the time of his crime for the jury to properly determine whether he posed a future danger as required under the state’s unique sentencing regime.

In turn, the justices cleared the way for the second U.S. execution of the Covid-19 pandemic era. More are planned to start next week, following the high court’s rejection of several federal death row prisoners’ challenge to the government’s lethal injection protocol.

No justices noted dissent from the denial of Wardlow’s appeals.

Citing the court’s 2005 opinion barring executions for those under 18 when they committed crimes, Wardlow said that opinion’s logic plus neuroscientific developments should bar executions for those sentenced under the Texas dangerousness standard for crimes committed before turning 21. There are 45 such Texas inmates, including Wardlow, he said. Experts agree that the brain keeps developing past age 18, rendering the prediction of future dangerousness an unscientific endeavor.

Justice Anthony Kennedy provided the fifth vote in that 5-4 decision in 2005, Roper v. Simmons, suggesting, as expected, that the high court, now with Justice Brett Kavanaugh having replaced Kennedy, at the very least isn’t inclined to expand on death penalty rulings where Kennedy provided the pivotal vote.

Opposing Wardlow’s execution stay request and his petition for review of his age claim, state officials said his “senseless and needless execution of a robbery victim,” combined with threats to other inmates and jail staff while incarcerated, enabled the jury to properly deem him a future danger. As often happens in death penalty litigation, officials also said Wardlow could have brought his claim earlier and so should be barred from doing so now.

“Despite forty years of review of Texas’s capital sentencing scheme,” officials said, the Supreme Court “has never struck down its use of future danger.”

Wardlow separately argued that his initial state habeas proceeding “was essentially a sham, in which the trial court wholly allowed the prosecutor to determine the course of proceedings and decide the case, the Texas Court of Criminal Appeals in its review of the trial court’s recommendations dismissed the proceeding on mistaken procedural grounds, and that dismissal controlled the outcome of federal habeas proceedings.”

He asked the justices to rule for him based on a recent high court ineffective assistance of counsel case, Andrus v. Texas, where the justices sent a capital defendant’s case back to Texas state court for further review.

In a third appeal to the justices also denied on Wednesday evening, Wardlow challenged a federal court’s rejection of his post-conviction claim on procedural grounds.

The cases are Wardlow v. Texas, U.S., Nos. 19-8712, 19A1064; Wardlow v. Texas, U.S., Nos. 19-8835, 19A1065; Wardlow v. Davis, U.S., Nos. 19-8850, 19A1069.

(Adds snapshot, notes execution took place. )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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