Capital Punishment in the Supreme Court 2018 Term

Carol S. Steiker Henry J. Friendly Professor of Law & Faculty Co-Director of the Criminal Justice Policy Program, Harvard Law School and Jordan M. Steiker Judge Robert M. Parker Endowed Chair in Law & Director of the Capital Punishment Center, University of Texas School of Law

Outside of the courts, the American death penalty is dying. The United States is an extraordinary outlier among Western, developed democracies in its retention and use of the death penalty, and many signs point to its increased marginalization within the United States. With New Hampshire’s recent abolition of the death penalty, nine states have abandoned capital punishment over the past fifteen years; several others, including Colorado, are on the cusp of doing so. Capital sentencing, perhaps the best indicator of contemporary support for the American death penalty, remains remarkably low, with fewer than fifty death sentences a year nationwide over the past four years (compared to more than 300 a year in the mid-1990s).[1] The decline is most striking in those jurisdictions constituting the heartland of the American death penalty. Twenty-five years ago, Georgia, Texas, Alabama, North Carolina, Virginia, and Florida together accounted for 284 death sentences in the two-year span 1994–95.[2] In the most recent two-year period, 2017–18, they collectively produced only twenty-six death sentences (with Georgia, North Carolina, and Virginia producing none), representing a more than ninety percent decline.[3] This year, these six states are on pace for about sixteen death sentences, with a total of eight at mid-year.[4] With only fourteen death sentences nationwide recorded by the end of June, we may see the fewest number of death sentences in the modern era of the American death penalty, stretching back to the early 1970s.[5] Executions, too, have declined to about twenty-three a year nationwide over the past three years, down over seventy-five percent from the high of ninety-eight in 1999.[6] The executions have been concentrated in just a handful of states, with Texas, Alabama, Georgia, and Florida accounting for over seventy-five percent of the executions since 2016.[7] Apart from these raw numbers, a host of developments point to the diminished status of the American death penalty, including gubernatorial moratoria on executions in several states, the recent state judicial invalidation of the death penalty in Washington on grounds of racial discrimination, and successful electoral efforts to oust zealous pro-death penalty prosecutors in a number of counties.

Four years ago, Justice Breyer, joined by Justice Ginsburg, argued in a lengthy dissent from a lethal-injection challenge that the evident decline in the American death penalty justified revisiting its constitutionality as a punishment under the Eighth Amendment.[8] At the outset of his dissent, Justice Breyer insisted, in line with the Court’s longstanding Eighth Amendment jurisprudence, that the constitutionality of the death penalty turns on whether it remains consistent with contemporary standards of decency.[9] He then sought to show how prevailing capital practices render the punishment both “cruel” and “unusual.” According to Justice Breyer, the ever-expanding time between sentence and execution makes the death penalty “cruel” in two senses: Lengthy death-row incarceration, often in solitary confinement, amounts to a separate and inhumane punishment apart from death itself, and delays between sentencing and execution undermine the deterrent and retributive justifications for capital punishment, such that subsequent executions could be viewed as pointlessly extinguishing human life.[10] Highlighting the shrinking footprint of the American death penalty, Justice Breyer claimed that the punishment is now truly “unusual”—with a substantial majority of Americans living in jurisdictions that have moved away from death sentences and executions.[11]

Although several justices had raised doubts about the constitutionality of the American death penalty in the decades following its reinstatement in 1976, Justice Breyer’s dissent seemed different in ambition and scale. Some observers read his dissent as an invitation to litigators to bring a global challenge to the Court, viewing his opinion as a signal that five members of the Court were prepared to invalidate the death penalty. Others urged more caution, noting that only Justice Ginsberg had joined the dissent and worrying that a premature challenge could undermine and prolong the effort to secure judicial abolition.

Four years later, no one thinks the current Court is inclined to declare the death penalty unconstitutional. With Justice Kavanaugh’s replacement of Justice Kennedy (following Justice Gorsuch’s replacement of Justice Scalia), the center of the Court is now occupied by Chief Justice Roberts. This Term’s capital cases reflect an overall sensibility to preserve the constitutional status of the death penalty. In Bucklew v. Precythe, the conservative bloc on the Court went out of its way to affirm the constitutionality of the death penalty by implicitly challenging the basic premise of Justice Breyer’s dissent—that evolving standards of decency determine whether the death penalty may be imposed. The same bloc expressed frustration with end-stage litigation seeking stays of execution, making it unlikely that inmates will secure stays based on challenges to various state protocols. At the same time, in other cases the Court continued to police outlying capital practices, such as the use of racially discriminatory peremptory challenges and the failure to give effect to the Court’s prohibitions against executing incompetent persons and persons with intellectual disabilities. In these decisions, the Court did not broaden the rights of capital defendants so much as insist on compliance with prior Court decisions. As a whole, this Term’s capital decisions seem designed to stabilize and entrench the American death penalty as a permissible practice, clearing potential obstacles to its administration while also condemning wayward state practices that tend to undermine its legitimacy.

I. Bucklew v. Precythe

The most potentially significant capital case this Term was Bucklew v. Precythe,[12] involving an as-applied challenge to Missouri’s lethal injection protocol. Death-sentenced inmates have never won a challenge to execution methods in the U.S. Supreme Court. In the nineteenth century, the Court rejected a challenge to execution by firing squad in the Utah Territory.[13] Citing scholars of military law, the Court found “the authorities . . . quite sufficient to show that the punishment of shooting as a mode of executing the death penalty” did not constitute cruel and unusual punishment as proscribed by the Eighth Amendment.[14] A little over a decade later, the Court likewise rejected the claim that New York’s adoption of the electric chair violated the Constitution, although the decision rested in part on its view that New York—as opposed to the Utah Territory—was not a federal entity and thus not clearly bound by the Eighth Amendment[15] (which the Court did not incorporate and apply against the states via the Fourteenth Amendment until 1962[16]). In 1947, the Court rejected a challenge to Louisiana’s effort to execute an inmate following the state’s botched electrocution attempt[17]—an effort the dissenting justices derided as “death by installments.”[18] Noting that “[a]ccidents happen for which no man is to blame,” the Court declared that the “cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.”[19] The lack of success in these cases accounted in part for the diversity of execution methods in the U.S. throughout the first half of the twentieth century, with jurisdictions using hanging, firing squads, electrocution, and lethal gas to perform executions (and each of these methods has been implemented over the past forty years).

In the early 1970s, the Court invalidated prevailing statutes and suggested that the death penalty might itself no longer comport with prevailing morality, which the Court viewed as the appropriate gauge of the Eighth Amendment.[20] After the Court upheld new capital statutes in 1976,[21] finding sufficient indications of contemporary support for the punishment, states began to gravitate toward lethal injection as the primary means of execution. Lethal injection was widely welcomed by states because it promised to reduce the visible violence of executions, especially in comparison to the use of the electric chair, and many states believed it would be more humane to the condemned.

But lethal injection presented its own problems. The protocol for executions by lethal injection was developed in a haphazard way, with Oklahoma hastily creating a three-drug protocol in 1977 that became the nationwide standard within two decades.[22] That protocol included pancuronium bromide, a paralytic, which was included in order to shield observers of executions from witnessing involuntary movements of the condemned. But if an inmate were insufficiently sedated by the first drug in the protocol (sodium thiopental, a barbiturate anesthetic), the paralytic could cause the inmate to experience suffocation, followed by intense pain upon administration of the final drug, potassium chloride, which induces cardiac arrest.[23] Worse still, the paralytic would prevent anyone observing the execution from detecting the inmate’s agony.

Eleven years ago, in Baze v. Rees,[24] a fractured Supreme Court upheld the three-drug protocol against an Eighth Amendment challenge brought by Kentucky death-row inmates. Chief Justice Roberts, writing for a three-justice plurality, began with the premise that “capital punishment is constitutional.”[25] Accordingly, he argued “it necessarily follows that there must be a means of carrying it out.”[26] The chief justice identified two requirements for a successful Eighth Amendment challenge to an execution method: The inmate must show that the challenged method presents a “substantial” or “objectively intolerable” risk of “serious harm,” and the inmate must identify a “feasible, readily implemented” alternative execution procedure that would significantly reduce that risk.[27] Finding that neither requirement was met, the plurality denied relief, with four other justices concurring in the result.

Perhaps the most important and remarkable opinion among the seven issued in Baze was Justice Stevens’s concurrence. Justice Stevens took the occasion to announce his conclusion that the American death penalty was no longer constitutional (though he indicated he would continue to adhere to decisions sustaining the death penalty as a matter of stare decisis until the Court revisited them). He argued that the move to lethal injection and the corresponding effort to make executions painless undercut the retributive value of the death penalty.[28] He also offered a scattershot critique of prevailing capital practices, including the death qualification of jurors, the risk of wrongful convictions, the use of victim impact evidence, and racial discrimination.[29] Although three other justices previously had registered their constitutional opposition to capital punishment (Justices Brennan, Marshall, and Blackmun), Justice Stevens had been one of the architects of the modern doctrine as part of the plurality sustaining three of the newly enacted capital statutes in 1976. Importantly, Justice Stevens concluded his concurrence by making clear his view that the constitutionality of the death penalty turned on a contemporary evaluation of its effectiveness, including whether it made any “marginal contribution to any discernible social or public purposes.”[30] He noted that “[n]ot a single Justice in Furman concluded that the mention of deprivation of ‘life’ in the Fifth and Fourteenth Amendments insulated the death penalty from constitutional challenge.”[31]

Despite the Court’s lack of solicitude toward the lethal injection protocol challenge in Baze, problems with lethal injection contributed significantly to the decline in executions over the next decade. One major difficulty states faced was the declining availability of sodium thiopental, as the primary domestic manufacturer (Hospira) ceased production and European countries sought to clamp down on exports destined for U.S. execution chambers. States began to quickly (and often haphazardly) change their protocols, using different drugs, such as pentobarbital and midazolam. States’ efforts to design new protocols led to extensive litigation, not only under the Eighth Amendment, but under state law as well. Botched executions in Ohio, Arizona, and Oklahoma in a seven-month span in 2014, all of which included midazolam in the protocol, heightened public awareness of the potential hazards of lethal injection.

In 2015, in Glossip v. Gross,[32] the Court addressed the claim of death-row inmates in Oklahoma objecting to the use of midazolam in executions. Justice Alito’s majority opinion applied the Baze plurality approach and rejected the claim on both prongs: The inmates had not demonstrated “that Oklahoma’s use of a massive dose of midazolam . . . entails a substantial risk of severe pain,” and they “failed to identify a known and available alternative method of execution that entails a lesser risk of pain.”[33] Justice Sotomayor dissented from this holding, arguing that the record supported a finding that midazolam might not function as an adequate sedative even at high doses (referencing, among other things, the botched execution in Arizona, in which the inmate had received a high dose of midazolam). She also insisted that Baze should not be read to impose the requirement of pleading a known and available alternative execution method as a precondition to preventing the state from using a cruel means of execution.

As in Baze, the most dramatic opinion in Glossip was not in the debates over the dangers of the challenged protocol or over the appropriate elements of an Eighth Amendment challenge to a mode of execution. It was Justice Breyer’s lengthy and impassioned call to revisit the constitutionality of the death penalty. Why might Justice Breyer have chosen to write his global attack against the death penalty in Glossip (later published as a free-standing book under the title Against the Death Penalty[34])? Perhaps, as in Baze, the structure of the Court’s analysis—since the death penalty is constitutional, there must be a permissible means of carrying it out—naturally elicited reflection on the Court’s crucial premise, and both Justice Stevens and Justice Breyer did not want that premise to go unexamined. Or perhaps it was the accelerated decline of the death penalty in the seven years spanning Baze and Glossip, as the struggle over lethal injection revealed the increasingly weakened (and geographically concentrated) support for capital punishment; during that period, only a handful of states, mostly in the deep South, aggressively sought to surmount the legal, political, and public-relations obstacles to conduct executions. Despite Baze’s high legal burden for challenging execution methods, by 2015 executions nationwide had declined to their lowest point in almost a quarter century, falling below thirty executions for the first time since 1991.[35] After Glossip, executions remained at their recent lows, falling to twenty nationwide in 2016 (and they have not climbed above thirty in any of the last three years).[36]

Bucklew involved a more modest challenge to lethal injection. Bucklew did not claim that Missouri’s pentobarbital-based lethal injection protocol generally entails a substantial risk of severe pain; rather, Bucklew argued that his particular medical condition—a congenital disease that produced vascular tumors in his head, neck, and throat—makes lethal injection a riskier execution method for him because his tumors could hemorrhage (which in turn would fill his mouth and airway with blood, potentially leading to suffocation and prolonged, excruciating pain during the execution). Much of the litigation focused on whether Bucklew’s as-applied challenge was subject to the requirement of identifying a readily-available alternative to the challenged protocol—essentially requiring him to plan his own execution through other means. Bucklew argued against that requirement on the ground that its purpose was to ensure that successful execution-method claims would not effectively abolish capital punishment in a jurisdiction altogether; because Bucklew challenged the protocol only as it applied to his unusual and rare circumstances, it did not threaten Missouri’s ability to continue to execute (though it would obviously make executing him more difficult).

Justice Gorsuch’s opinion for the five-justice majority aims to solidify the constitutional status of the death penalty. Like Baze and Glossip, Bucklew started with the premise that the death penalty is constitutional (and therefore there must be a permissible means of implementing it). But unlike the plurality opinion of Chief Justice Roberts in Baze and the majority opinion of Justice Alito in Glossip, Justice Gorsuch’s opinion rested not on the doctrinal fact that the Court upheld the death penalty as a permissible punishment in Gregg v. Georgia in 1976,[37] but on his view that the death penalty is invulnerable to constitutional attack in accord with his originalist/textualist methodology. Justice Gorsuch began his analysis by noting that the death penalty was the standard punishment at the time of the founding and that the addition of the Eighth Amendment did not change that practice (the First Congress had made a number of crimes punishable by death).[38] He also observed that the Fifth Amendment specifically contemplates the availability of the death penalty both in the grand jury clause (applicable to “capital, or otherwise infamous crime[s]”) and due process clause (applicable to deprivations of “life, liberty, or property”)[39]—though he interestingly omitted reference to the double jeopardy provision, which is triggered by repeated threats to “life or limb.” Based on these facts, he insisted, it follows “that the judiciary bears no license to end a debate reserved for the people and their representatives.”[40]

This portion of Justice Gorsuch’s opinion is in direct conversation with Justice Stevens and Justice Breyer: It rejects the possibility that changing attitudes and practices bear on the constitutionality of the death penalty given the Constitution’s text and history. The opinion did not come out of the blue. In Glossip, Justice Scalia had made a similar argument in his concurring opinion joined only by Justice Thomas. There, Justice Scalia insisted that if the Court were to revisit the constitutionality of the death penalty, it should also revisit its prevailing approach to the Eighth Amendment—that a practice should be deemed “cruel and unusual” if it is contrary to “evolving standards of decency.”[41] According to Justice Scalia, Trop v. Dulles,[42] which announced the evolving-standards approach over six decades ago, was not only wrongly decided but “has caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind.”[43] What wreckage had Trop left in its wake? Most notably, the evolving standards approach had led the Court to invalidate the death penalty as applied to persons with intellectual disabilities,[44] juveniles,[45] and offenders convicted only of rape[46] (including the rape of a child[47]) but not murder; it also had been employed in the non-capital sphere to shield juveniles convicted of non-homicidal offenses from sentences of life without the possibility of parole (“LWOP”),[48] and to preclude the mandatory imposition of LWOP against juveniles convicted of homicide.[49] As it announced these decisions, the Court’s methodological approach to “evolving standards” itself evolved: The Court broadened its view of appropriate indicia of contemporary attitudes, looking not only at legislative enactments and sentencing practices, but also to professional opinion, religious opinion, world views and practices, and opinion polls. Perhaps even more dangerous from Justice Scalia’s perspective, Justice Kennedy was an enthusiastic adherent to the more capacious Eighth Amendment approach, having authored the Court’s opinions invalidating the death penalty for juveniles and for offenders convicted of the rape of a child.

In some respects, Justice Gorsuch’s opinion in Bucklew tries to accomplish sub silentio and in dicta what Justice Scalia sought to address directly—the jettisoning of Trop. It is certainly significant in Bucklew that five justices signed on to an opinion defending the death penalty’s constitutionality as an originalist/textualist matter, without regard to contemporary support or its present ability to serve important penological purposes. But no future Court inclined to invalidate the death penalty will view Bucklew—as opposed to the many decisions applying Trop (including Furman, Gregg, Atkins, and Simmons)—as the appropriate starting point for its constitutional analysis. The constitutionality of the death penalty was not before the Court in Bucklew, and the Court made no mention of the continuing vitality of Trop. That said, Bucklew makes clear that advocates seeking constitutional abolition of the death penalty would act at their peril in bringing that claim to the Court as presently constituted.

Justice Gorsuch’s originalism was further deployed as the Court addressed the central doctrinal question raised in the case—whether Bucklew must plead a “readily available” alternative means of execution if he is to avoid the execution method he challenged. On this question, Justice Gorsuch argued that “the original and historical understanding of the Eighth Amendment” focused not on whether a punishment was painful in itself, but on whether “the punishment ‘superadds’ pain well beyond what’s needed to effectuate a death sentence.”[50] Hangings were deemed acceptable even though they presented a risk of pain, because they did not involve “the infliction of pain for pain’s sake.”[51] The best way to assess whether an execution involves gratuitous pain, in Justice Gorsuch’s account, is to see whether the State is refusing to employ a method of execution with a substantially lower risk of serious pain. Given his view that “the alternative-method requirement is compelled by our understanding of the Constitution,”[52] Justice Gorsuch dismissed as a mere “policy concern” the contention that as-applied challenges need not include an alternative means of execution because they do not threaten the State’s general ability to execute.[53]

The Court’s sole concession to Bucklew was its holding that the “feasible and readily implemented” alternative need not be “presently authorized by a particular State’s law.”[54] Bucklew argued for execution by nitrogen hypoxia, which was not among Missouri’s execution protocols (though Missouri does authorize execution by “lethal gas”). According to the Court, the fact that state law does not sanction a proposed method should not be an obstacle to an inmate’s claim (“the comparative assessment” required by the Eighth Amendment “can’t be controlled by the State’s choice of which methods to authorize”[55]), a point echoed by Justice Kavanaugh in his concurring opinion. Nonetheless, the Court concluded that Missouri was not unreasonable in refusing to shift to nitrogen gas, because Bucklew’s proposed use of nitrogen gas was not sufficiently detailed and tested: No jurisdiction has carried out an execution using nitrogen gas, and Missouri would have to design and study the protocol before proceeding. The novelty of the proposed method of execution was itself a sufficient basis for deeming it not “readily” implementable.[56]

Even this small apparent concession might not help future litigants. The Court nodded to “many legitimate reasons”[57] for refusing to adopt a well-established protocol from another State, including the amorphous concern of “preserving the dignity of the procedure,”[58] which was invoked by Justice Alito in Baze to justify the continued use of a paralytic despite its risks in masking an inmate’s pain. Suppose an inmate proposes execution by firing squad, a “readily implemented” method given its longstanding use and well-established protocols. The “dignity-of-the-procedure” justification could be invoked to deny an inmate’s preference for this form of execution on the grounds that witnesses to the execution might be uncomfortable observing the visible destruction of the body that death by firing squad entails. It is not enough, then, for an inmate to show that the state can avoid a substantial risk of pain through a well-established, “readily implemented” execution method; the inmate must also hope that the state lacks some other reason for declining to reduce the inmate’s risk of pain, such as protecting the sensibilities of those present during the execution.

The possibility that states could choose not to shift from risky execution methods because of “dignity of the procedure” concerns reveals a tension within the originalist position. The originalist asserts that the Eighth Amendment is violated whenever states have “superadded” a significant risk of pain that can be avoided through an available execution method. But the majority’s acknowledgment of a strong state interest in the “dignity of the procedure” is a tacit embrace of “evolving standards of decency” as an appropriate concern limiting the choice of execution methods. If states will not embrace potentially “safer” execution methods (such as the firing squad or lethal injection without a paralytic) because prevailing standards of decency cannot abide them (they are too gruesome to observe), a thoroughgoing originalist should reject that choice. But the majority, despite claiming the originalist mantle, grafts on a non-originalist “dignity” exception to accommodate evolving sensibilities. In such circumstances, states are able to retain the death penalty only because its violence remains unseen by observers, and the cost of this compromise is borne entirely by condemned inmates, who are denied a “safer” death to avoid transgressing community standards. Justice Alito’s “dignity of the procedure” proviso, by implicitly recognizing the salience of evolving standards, calls into question the majority’s overarching framework. Instead of concluding that there must be a constitutionally acceptable method of execution because “the death penalty is constitutional,” the Court should consider the possibility that the absence of a safe method of execution acceptable to the community renders the death penalty unconstitutional.

In light of the Court’s rejection of execution by nitrogen hypoxia as not “readily implementable,” it really didn’t matter whether Bucklew was correct in claiming that lethal injection posed a substantial risk of causing him significant pain. As Justice Sotomayor argued in Glossip, when she objected to the Court’s endorsement of the alternative method requirement, “it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake,”[59] because the petitioners had not shown that the one-drug protocol they sought was readily available. Nonetheless, the Court considered and rejected Bucklew’s assertion that lethal injection posed an excessive risk of pain, a conclusion disputed by Justice Breyer’s dissent, as the two opinions diverged in their assessments of the meaning and significance of the testimony of Bucklew’s expert witness, an anesthesiologist.

The Court’s rejection of Bucklew’s challenge is perhaps less significant than the overall tone of its opinion, with its manifest disdain and hostility toward end-stage litigation generally and Bucklew’s execution-method challenge in particular. The Court described Bucklew’s losses on direct appeal, state postconviction, and federal habeas, and observed, “[a]fter a decade of litigation, Mr. Bucklew was seemingly out of legal options.”[60] But then “Mr. Bucklew’s case soon became caught up in a wave of litigation over lethal injection procedures.”[61] Though the Court had dealt a blow to lethal injection challenges in Baze, “that still was not the end of it.”[62] As Bucklew sought to challenge Missouri’s protocol, “anti-death penalty advocates”[63] sought to interfere with the supply of lethal injection drugs. When the drugs became available in Missouri, “Mr. Bucklew filed yet another lawsuit.”[64] After Glossip was decided, and the Court embraced the alternative execution method requirement, Bucklew “still refused to identify an alternative procedure” despite “the Eighth Circuit’s express instructions” that he do so.[65]

After rejecting his claim, the majority lamented how Bucklew “managed to secure delay through lawsuit after lawsuit.”[66] It warned that the “Courts should police carefully against attempts to use [method-of-execution] challenges as tools to interpose unjustified delay,” noting that the “people of Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them deserve better.”[67] Sending a message to the lower courts, the majority declared that “[l]ast minute stays should be the extreme exception, not the norm.”[68]

On this last point, the majority sought to defend its widely criticized decision earlier in the Term vacating a stay in the case of Domineque Ray. Ray had challenged Alabama’s policy permitting a Christian chaplain to be present in the execution chamber to minister to (presumably) Christian inmates while denying Muslim inmates a corresponding right to have an imam present in the chamber. The Eleventh Circuit had granted a stay the day before Ray’s scheduled execution, concluding that there was a substantial likelihood that Alabama’s policy violated the Establishment Clause. The same five justices in the Bucklew majority supplied the votes in Dunn v. Ray[69] to vacate the stay in a two-paragraph order, noting that a “court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”[70] Four dissenting justices chastised the majority for refusing to prevent an obvious denial of religious equality on the ground of the “last-minute nature” of Ray’s application, noting that Ray filed his complaint within five days of the warden’s denial of his request to have his imam present.[71] In Bucklew, the majority dropped a footnote defending the reasonableness of its denial, arguing that Ray should not have waited until only fifteen days from his execution before seeking clarification of Alabama’s policy.[72] Justice Sotomayor’s dissent in Bucklew objected to the Court’s dismissive posture toward Bucklew’s litigation efforts, disagreeing with the Court’s implication that he sought to “manipulat[e] the judicial process.”[73] She viewed as “ominous” and “troubl[ing]” the Court’s “extreme exception” language,[74] imploring lower courts not to mistakenly read it as a new restrictive overlay on courts’ equitable power to grant stays in capital litigation. Whether or not the language amounts to a new legal standard, it certainly reflects a jaundiced judicial attitude toward last-minute stay applications.

II. Flowers v. Mississippi

In Flowers v. Mississippi,[75] a different dynamic emerged among the justices. Instead of a five-to-four vote for the state along the prevailing conservative/progressive divide, the Court’s judgment was in favor of the capital defendant by a seven-to-two vote, with Chief Justice Roberts joining the majority opinion authored by Justice Kavanaugh, and Justice Alito concurring separately. Flowers is the latest in a line of Batson decisions in capital cases in which the Court has rhetorically embraced its role as enforcer of rules against intentional racial discrimination in the trial process while failing to address or even acknowledge systemic racial bias in that process. Although the left wing of the Court always joins these Batson enforcement decisions, it is notable that all three such opinions thus far by the Roberts Court—Snyder v. Louisiana,[76] Foster v. Chatman,[77] and Flowers—have been authored by justices from the Court’s conservative majority (Justices Alito, Roberts, and Kavanaugh). These opinions all have the same general format: They each painstakingly chronicle and sanctimoniously condemn intentional discrimination by prosecutors in the exercise of their peremptory strikes, while at the same time emphasizing the unusualness of the underlying facts and the narrowness of the holding—issuing what appears to be a ticket “for this train only.”

In Flowers, the Court addressed a black capital defendant’s Batson claim of intentional discrimination by the state in the exercise of its peremptory strikes in the sixth trial arising out of the murder of four people (three of them white) in a small town in Mississippi. All six trials were tried by the same (white) prosecutor. The first three trials, which resulted in death verdicts, were all reversed by the Mississippi Supreme Court, the first two for prosecutorial misconduct and the third for a Batson violation. The fourth and fifth trials (the only ones in which the jury had more than one black member) resulted in mistrials due to hung juries. The sixth trial resulted in a death verdict that was affirmed by the Mississippi Supreme Court. The U.S. Supreme Court reversed the conviction on the ground that “the trial court committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not ‘motivated in substantial part by discriminatory intent.’”[78]

Although the Court based its ruling on the strike of a single black prospective juror in the sixth trial, it based its conclusion of discriminatory intent in part on the prosecutor’s conduct over the course of the previous trials. The Court noted that for the five trials for which there was evidence of the race of struck jurors, the state “employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck.”[79] The Court also cited the Mississippi Supreme Court’s assessment of the strength of the Batson claim that led it to reverse the conviction in the third trial: “The instant case presents us with as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge.”[80] The rest of the U.S. Supreme Court’s opinion relied on the prosecutor’s conduct in the sixth trial alone—the prosecutor’s pattern of strikes (eliminating five out of six black prospective jurors), the prosecutor’s “dramatically disparate questioning” of black and white prospective jurors, and the implausibility of the prosecutor’s supposedly race-neutral reasons for striking Carolyn Wright, “who was similarly situated to white prospective jurors who were not struck by the State.”[81]

Despite its distinctive facts (six trials!), Flowers shares a number of key features with the other Roberts Court Batson cases (Foster and Snyder). All three cases addressed capital verdicts against black defendants in states in the Deep South (Louisiana, Georgia, and Mississippi). Moreover, while all three cases presented compelling Batson claims on their facts, the Court’s decision to review them ran counter to the Court’s typical avoidance of fact-bound claims and mere error correction. None of the three cases presented legal issues of the type that usually prompt Supreme Court review. Rather, the claim to the Court’s attention was the extremity of the evidence presented by the defendants of intentional racial discrimination—what Jeffrey Toobin, writing about Flowers for the New Yorker, described as the “almost cartoonishly racist” conduct of the prosecutor.

The prosecutorial behavior in Foster, decided three years earlier, was of a similar magnitude. The Foster case involved the discovery many years after the trial of contemporaneous jury selection notes from the prosecutor’s office that were clearly never intended to see the light of day. The notes undermined, to say the least, the state’s claim that its elimination of all black prospective jurors from the pool was not racially motivated. Among other things, the notes explained that the bright green highlighting of the names of certain prospective jurors “represents Blacks,” labeled three of the black prospective jurors as “B #1,” “B #2,” and “B #3,” and included a list of “definite NO’s” containing the names of all of the qualified black prospective jurors.[82] As Foster’s lawyer, Stephen Bright, noted without overstatement during oral argument, “We have an arsenal of smoking guns in this case.”[83] And as Justice Kagan asked, rhetorically, “Isn’t this as clear a Batson violation as a court is ever going to see?”[84]

In Snyder, the defendant was similarly convicted and sentenced to death by an all-white jury after the prosecutor used peremptory strikes to eliminate all of the qualified black prospective jurors. The added drama in Snyder’s prosecution for a knife attack on his estranged wife and her date was the prosecutor’s repeated inflammatory references, before and during the trial, to the O.J. Simpson murder trial, which had concluded less than a year previously. In asking the all-white jury to return a death sentence at the penalty phase, the prosecutor likened Snyder’s prosecution to the Simpson trial, which he described as “the most famous murder case in the last, in probably recorded history, that all of you all are aware of” and claimed was “very, very, very similar” to Snyder’s case.[85] The dissenting justices on the Louisiana Supreme Court, who would have set aside Snyder’s conviction, concluded: “The prosecutor utilized the O.J. Simpson verdict to racially inflame the jury's passion to sentence this defendant to death. Such tactics leave no doubt . . . that the prosecutor had a racially discriminatory purpose for excluding the African American jurors.”[86]

The majority opinions in Flowers, Foster, and Snyder have similar structures. Each of them carefully documents the Court’s reasons for rejecting the state courts’ determinations that the prosecutors had race-neutral reasons for striking black prospective jurors, despite the deference that the law accords to state trial judges in these matters. A centerpiece of the analysis in each case is a side-by-side comparison of black and white jurors to test whether the prosecutors applied their stated reasons for striking black jurors to similarly situated white jurors. Often, the Court’s tone is high-minded and stern—celebratory of American legal commitments to racial justice and admonishing of discriminatory and deceitful prosecutorial behavior.

For example, Justice Kavanaugh’s opinion in Flowers is the epitome of high-minded celebration: It quoted at length from the Equal Protection Clause of the federal Constitution and the Civil Rights Act of 1875 and cited to the famous anti-discrimination holdings of Strauder v. West Virginia[87] and Brown v. Board of Education,[88] as well as a slew of other anti-discrimination cases.[89] This history lesson culminated in a lengthy discussion of Batson v. Kentucky,[90] which the Court triumphantly declared “immediately revolutionized the jury selection process . . . throughout the United States” in that it “ended the widespread practice in which prosecutors could (and often would) routinely strike all black prospective jurors in cases involving black defendants.”[91] As for sternness, Chief Justice Roberts’s opinion in Foster took a brusque, almost contemptuous tone toward some of the prosecutor’s behavior. In response to the prosecutor’s claim that he struck one black juror because that juror’s son had been convicted of a crime (stealing hubcaps) that was “basically the same thing that this defendant is charged with” (rape and murder), the Chief Justice wrote simply, “Nonsense.”[92] As for other various justifications for striking black jurors that were offered by the prosecutor, the Chief Justice deemed them, respectively, a “mischaracterization of the record,” “not true,” and “pretextual,” adding generally, “[m]any of the State’s secondary justifications similarly come undone when subjected to scrutiny.”[93]

The overall impression left by reading the Roberts Court’s Batson cases sequentially is of the Court’s strenuous attempt to demonstrate its commitment to identifying, condemning, and remedying racial discrimination in jury selection. This implicit claim to vigilance is paradoxically only strengthened by the vehement dissents of Justice Thomas (joined by at most one other justice) in all three cases. Justice Thomas thundered with outrage against what he sees as the Court’s nitpicking attempts to find evidence of racial discrimination despite its clear absence. He suggested that the Court is doing a version of rounding up the usual suspects by focusing on the treatment of black defendants in Southern state courts.[94] In Flowers, Thomas insisted that Flowers presented “no evidence whatsoever of purposeful race discrimination by the State” and that the Court’s contrary conclusion is “manifestly incorrect.”[95] These objections make it seem as if the Court routinely leans over backwards to ensure that even tenuous claims of discriminatory state action are vindicated.

Nothing could be further from the truth. Despite their rhetorical displays of attentiveness to racial justice, the Court’s recent Batson cases fail to acknowledge the broader context of systemic racial bias in the capital and criminal justice processes. In Batson itself, the Court explained that racially discriminatory jury selection procedures are constitutionally objectionable because they “undermine public confidence in the fairness of our system of justice.”[96] Presumably, evidence that the justice system sentences classes of defendants differently because of their race would undermine public confidence in the fairness of the system to an even greater degree. But the Court’s decision in McCleskey v. Kemp held that proof of such differential treatment over time, even in capital cases, does not give rise to a constitutionally cognizable claim.[97] The Court’s vociferous condemnation of egregious prosecutorial discrimination in jury selection fails to come to terms with the lack of constitutional remedies for the much bigger game of discrimination in actual case outcomes.

Moreover, the focus in the Batson cases on intentional discrimination leaves unacknowledged and untouched the even more intractable problem of unconscious bias. The Batson cases give the impression that discrimination is something that people are aware they are doing (because they lie about it) and that it is therefore something we can identify through “smoking gun” written evidence, careful parsing of questions asked during voir dire, and side-by-side juror comparisons. But it is increasingly apparent that biases on the part of prosecutors, judges, and jurors (as well as police officers, prison officials, and parole boards) are not always susceptible to such proof. Individuals are not always (or maybe not even usually) lying when they deny that they are acting with racial bias. Racially biased perceptions and motivations are often opaque not only to the courts, but also to the very people who experience them.[98] Yet these subterranean biases affect the perceptions and decision-making of actors throughout the criminal justice process, without much likelihood of detection or any hope of constitutional remedy.

Beyond failing to acknowledge the broader context of systemic racial bias, the Court’s Batson cases may actively undermine the recognition of systemic issues by holding up easy examples of “cartoonishly racist” behavior for all to condemn. The cases that the Court has chosen to review seem to suggest that the problem of racism in Southern criminal courts (or any other courts, for that matter) is one of a few egregiously bad apples, rather than a less dramatic—and less remediable—everyday reality. That may explain why the Court is repeatedly attracted to cases of transparent racism in the criminal justice process even beyond the context of jury selection.[99] Such cases offer a tidy story of villains who get their comeuppance, rather than a messy story of problems that have no easy solutions.

Even at the non-systemic level of jury selection, the Court’s Batson rulings do little to solve the intractable persistence of racial discrimination in the exercise of challenges to jury service. First, the Court has consistently declined to develop rules that lower courts can easily apply and that might deter future Batson violations. In Flowers, Justice Kavanaugh repeatedly made the point that “we need not and do not decide that any one of [the four facts that support the Court’s ruling] alone would require reversal.”[100] Justice Alito concurred separately to underscore that “this is a highly unusual case . . . likely one of a kind.”[101] The treatment of such cases as sui generis renders them weak precedents, with little helpful guidance for the future. Moreover, the Court fails to recognize that the “lesson” that prosecutors (or defense lawyers) with a mind to discriminate might take from its cases is that they just need to be smarter about offering race-neutral explanations—in particular, by offering explanations based on juror demeanor. In the Court’s opinion in Snyder, Justice Alito practically wrote a roadmap for such tactics, explaining that the Court would have upheld the trial judge’s acceptance of the prosecutor’s race-neutral explanation if only the prosecutor had limited that explanation to the juror’s “nervousness” and the judge had explicitly stated that he credited the prosecutor.[102] Finally, the Batson cases offer a remedy only for intentional discrimination in the use of peremptory challenges; they fail to recognize the extent to which disparate questioning of black and white prospective jurors is undertaken to pursue disparate challenges for cause, which are unlimited in number. Thomas Frampton has reviewed the trial court records in the Court’s recent Batson cases and found that “the lion’s share of racial exclusion in the jury selection process occurred through challenges for cause.”[103]

The Court’s decision in Flowers successfully does what it claims on its face to do—it polices an egregious instance of malfeasance in the jury selection process in an individual capital case. At the same time, however, the Court’s capital Batson cases subtly and not-so-subtly work to stabilize the death penalty by underplaying intractable systemic bias and promoting undeserved public confidence in the fairness of the overall system and the jury selection process alike.

III. Moore v. Texas

This Term’s decision in Moore v. Texas (Moore II)[104] was Bobby James Moore’s second victory in the U.S. Supreme Court. Two years ago, in Moore v. Texas (Moore I),[105] the Court reversed a decision by the Texas Court of Criminal Appeals (CCA) denying Moore’s claim to exemption from the death penalty based on intellectual disability. The Supreme Court’s decision rested in large part on the CCA’s outlier approach to discerning whether an inmate has an intellectual disability. All states acknowledge three essential components for a diagnosis of intellectual disability: significantly subaverage intellectual functioning (usually reflected in an IQ score two standard deviations from the mean); deficits in adaptive behavior; and onset during the developmental period. Most jurisdictions focus on whether an inmate meets clinical criteria for these components as set forth by expert organizations, such as the American Psychiatric Association and the American Association on Intellectual and Developmental Disabilities. Unlike these jurisdictions, though, the CCA, in response to the Court’s decision in Atkins[106] (exempting persons with intellectual disabilities from the death penalty), invented its own, non-clinical set of considerations (the “Briseno factors”) to assess the second component, adaptive deficits.[107] The Briseno factors were a hodge-podge of issues that deployed stereotypes of intellectual disability (whether the person is “coherent” or “rational”) and inappropriately invited consideration of the facts of the crime, which could lead judges or jurors to nullify and reject a finding of intellectual disability that was otherwise warranted.[108] Perhaps even more problematic, the CCA had not concealed its reason for inventing its non-clinical criteria: The CCA openly doubted whether Atkins should be read to exempt all persons with intellectual disability from the death penalty, as opposed to only those offenders “a consensus of Texas citizens” would deem sufficiently impaired to warrant exemption.[109] The CCA colorfully added that average Texans might agree that the fictional character Lennie in Steinbeck’s novel Of Mice and Men should be spared death, but the court was not so sure that Texans would feel similarly about offenders who merely satisfy the longstanding clinical definition of intellectual disability.[110]

In Moore I, the Court was emphatic about the inappropriateness of the CCA’s invented criteria for adaptive deficits, stating that “[b]y design and in operation [they] create an unacceptable risk that persons with intellectual disability will be executed.”[111] Even though the Court was divided five-to-three in its decision to reverse the CCA’s judgment, the Court was unanimous about the incompatibility of the Briseno factors with Atkins and the Eighth Amendment. The Court also highlighted numerous other ways in the which the CCA’s analysis departed from clinical diagnostic norms, including its excessive focus on Moore’s strengths rather than his deficits, its overemphasis on Moore’s behavior in the controlled environment of prison, its suggestion that a diagnosis of intellectual disability was less appropriate because of Moore’s abused background, and its requirement that Moore demonstrate that his deficits were not the product of a personality disorder (as opposed to intellectual disability).

On remand, in a remarkable development, the Harris County district attorney joined Moore’s lawyers in determining that Moore was exempt from the death penalty in light of the Supreme Court’s opinion. But the CCA refused to embrace this joint position and plowed forward, rehashing much of the same analysis from its earlier decision. The CCA once more overturned the trial court’s recommendation that Moore prevail on his Atkins claim. When Moore filed for review in the Supreme Court, the district attorney again did not oppose relief, leading to an effort by the Texas attorney general (AG) to intervene so that there would be a voice before the Court defending the CCA decision. The AG had some reason for hope: By the time Moore II reached the Court, only four of the five justices supporting the judgment in Moore I remained on the Court, and Justices Gorsuch and Kavanaugh did not seem like sure bets to defend the Court’s prior decision.

Nonetheless, Moore II summarily reversed the CCA decision. The per curiam decision observed that it found in the CCA opinion “too many instances in which, with small variations, it repeats the analysis we previously found wanting” and that “these same parts are critical to its ultimate conclusion.”[112] Chief Justice Roberts was the lone dissenter in Moore I who agreed with the summary reversal (Justices Alito and Thomas again voted to affirm the CCA). Chief Justice Roberts had authored the dissent in Moore I, lamenting the absence of firm guidance in the per curiam decision for assessing intellectual disability. But “putting aside the difficulties of applying Moore in other cases,” he found it “easy to see that the Texas Court of Criminal Appeals misapplied it here.”[113]

Notably, of the two new justices, only Justice Gorsuch joined Justice Alito’s dissent. Justice Alito attributed the conflict between the Court and the CCA in this case to the absence of adequate guidance in Moore I. He also lamented the Court’s mere error correction, noting that the Court “rarely grant[s] review where the thrust of the claim is that a lower court simply erred in applying a settled rule of law to the facts of a particular case.”[114] Fair enough, though here the “settled rule of law” was the Court’s decision reversing the CCA in the very same case. Justice Alito also objected to the Court’s decision to reach the ultimate conclusion that Moore is exempt under Atkins,[115] suggesting that the ordinary course for the Court when a state court has misapplied federal law is to reverse and remand so that the state court can have the opportunity to apply the correct legal standard (what could possibly go wrong on remand?), a path the majority seemed unwilling to risk.

Moore II is of a piece with Flowers. Both cases involved an important institutional actor repeatedly flouting Court precedent (though here it is a state court rather than a county prosecutor). Like Flowers, Moore II makes no discernable new law. Indeed, it’s fair to say that Moore II says less about the Court’s death penalty jurisprudence than about its willingness to enforce its own decisions. It is unsurprising that, among the conservative members of the Court, Chief Justice Roberts would be the least inclined to tolerate a state court’s not-particularly-clever effort to evade the manifest consequences of a recent decision of the Court—a point underscored by the unwillingness of the Harris County District Attorney’s Office to continue to defend Moore’s death sentence. That said, the importance of Moore II should not be understated. Justice Kennedy’s departure from the Court left fewer than five adherents not only to Moore I but possibly to Atkins itself. Had the Court tolerated the CCA’s nonadherence to Moore I, many lower courts and prosecutors would have sensed an opportunity to revisit Atkins. In an indirect way, though, Moore II can be understood as protecting the legitimacy of the death penalty—by protecting the legitimacy of the Court as it increasingly sides with states against death-sentenced inmates.

IV. Madison v. Alabama

In Madison v. Alabama,[116] the Court gave another win to a capital defendant, but once again offered little that will aid future capital defendants as a class (or even Madison himself on remand). The case dealt with the Court’s Eighth Amendment doctrine banning the execution of inmates who lack competency to be executed as a result of their mental state. In the litigation leading up to the Court’s decision, both the prosecution and the defense urged approaches that arguably would have changed the scope of the doctrine—the prosecution’s by narrowing the availability of the ban and the defense’s by widening it. The Court was having none of it. In a careful opinion for a five-to-three majority made up of the chief justice and the rest of the liberal wing of the Court, Justice Kagan treated the case as a straightforward application of the doctrine as elucidated in the Court’s most recent and complete (if not clearest) statement on the matter a dozen years earlier. In doing so, the Court sought a conservative (as in preserving the status quo) middle ground, rejecting, like the bears in Goldilocks’s house, interpretations of its precedents that it deemed both too big and too small.

The constitutional ban on executing the incompetent was first announced in Ford v. Wainwright in 1986, when the Court explained that the Eighth Amendment prohibits the execution of “the insane” on the grounds that executing a person “who has no comprehension of why he has been singled out and stripped of his fundamental right to life” and “who has no capacity to come to grips with his own conscience or deity” offers little “retributive value” and “simply offends humanity.”[117] More recently, the Court elaborated on the Ford standard in Panetti v. Quarterman, noting that Ford “did not set forth a precise standard for competency” and holding that a condemned prisoner lacks competency to be executed if he is mentally impaired such that “he cannot reach a rational understanding of the reason for the execution.”[118] The Court in Panetti held that a prisoner’s formal ability to “identify the stated reason for his execution” was not sufficient; rather, competency requires that the prisoner have a more nuanced ability to “comprehend[] the meaning and purpose of the punishment to which he has been sentenced.”[119]

Although it could fairly be said that Panetti, too, failed to offer a “precise standard” for competency to be executed,[120] the Court in Madison took a straightforward approach that did not seek to find or resolve complexities in the doctrine. Rather, the Court remanded the case to the Alabama courts to clarify whether the state court’s determination that Madison “did not provide a substantial threshold showing of insanity[] sufficient to . . . stay the execution”[121] reflected an accurate understanding of the Court’s holdings in Ford and Panetti. Unlike the defendants in these earlier cases, Madison did not suffer from gross delusions as a result of schizophrenia. Rather, after more than thirty years on Alabama’s death row, Madison suffered from significant cognitive decline as a result of a series of strokes and vascular dementia. He claimed to no longer be able to remember committing the crime for which he was sentenced to death, and his lawyers argued that his memory impairment and dementia prevented him from having the rational understanding of the reason for his execution required by the Court’s doctrine. The state, for its part, argued that only prisoners suffering from delusional disorders could qualify as incompetent. At oral argument before the Court, Madison’s counsel conceded that a prisoner’s inability to remember committing the crime for which he was sentenced to death does not alone render him incompetent, while counsel for the state conceded that dementia as well as psychotic delusions could preclude the necessary “rational understanding” required for competency to be executed.[122] The Madison Court ratified both of these concessions and held that the only question left to be answered was whether the state court’s use of the term “insanity” in its terse rejection of Madison’s claim of incompetency reflected the incorrect view that only delusions could impair competency.

The decision in Madison protected the Court’s standard for competency to be executed from being narrowed to the particular facts of the two main cases in which it had been elucidated (Ford and Panetti). True, both of these cases involved prisoners suffering from gross delusions. But the announced standard for competency—the requirement that a prisoner have a rational understanding of the reasons for his execution—does not limit itself to such situations. As the Court explained,

[The] standard focuses on whether a mental disorder has had a particular effect: an inability to rationally understand why the State is seeking execution. Conversely, that standard has no interest in establishing any precise cause: Psychosis or dementia, delusions or overall cognitive decline are all the same under Panetti, so long as they produce the requisite lack of comprehension.[123]

Madison held the constitutional line in demanding that the state court demonstrate compliance with the Court’s previously announced competency standard. However, the Madison Court also declined to interpret that standard more broadly. Until oral argument before the Court, Madison had argued that his inability to remember committing the crime for which he was sentenced deprived him of the ability to rationally understand the reason for his execution. The Madison opinion treats this claim as self-evidently wrong, invoking some common-sense examples:

Do you have an independent recollection of the Civil War? Obviously not. But you may still be able to reach a rational—indeed, a sophisticated—understanding of that conflict and its consequences. Do you recall your first day of school? Probably not. But if your mother told you years later that you were sent home for hitting a classmate, you would have no trouble grasping the story.[124]

Quite apart from the dubious connection between memory and rationality, however, the Court may have had unstated practical reasons to reject a pure memory test for competency—reasons that may have been key to the chief justice’s crucial fifth vote. As counsel for Madison implicitly recognized at oral argument, if lack of memory of the offense alone were sufficient to establish incompetency to be executed, many more prisoners would likely claim such a lack, leading to extended and expensive litigation. And given that memory problems increase with age, such claims may well multiply in the future, given the ever-growing lengths of time that prisoners spend on death row. By holding merely that dementia as well as delusions may undermine a prisoner’s “rational understanding,” the Court was able to stand firm on its Ford/Panetti standard without giving capital defendants a powerful new weapon to challenge or delay their executions.

Indeed, the Court’s ruling may well not benefit even Madison himself, as the Court’s remand sends the question back to the same Alabama court that has twice already affirmed Madison’s competency to be executed. The Madison decision’s most substantial import may be as a shot across the bow. It is a warning to state courts, just as the Court’s Batson cases serve as warnings to state prosecutors, that the Court will police bold outliers and obvious bad actors. Such policing helps the death penalty save face as an institution—but without actually changing the nature of the underlying practice to any substantial degree.


Over the past almost-fifty years since Furman, the Court has operated under the assumption that the death penalty is constitutional so long as the American people have not decisively rejected it. As the death penalty withered dramatically in recent decades, several justices have insisted that it is time for the Court to reevaluate whether the practice remains consistent with prevailing standards of decency. The present Court seems intent on deflecting that challenge, not by documenting continued support for the punishment, but through an appeal to a mix of originalism and textualism that would permanently insulate capital punishment from Eighth Amendment review. From that premise, the Court also seeks to sweep end-stage litigation aside, because if capital punishment is (forever) constitutional, states should not be impeded from carrying it out. At the same time, a broader coalition on the Court seems committed to policing particularly egregious state capital practices, especially those—like transparent racism—that undermine the legitimacy of the overall capital system. But in so doing, the Court is reluctant to demand broader changes that would measurably improve capital practices on the ground.

Carol Steiker is the Henry J. Friendly Professor of Law & Faculty Co-Director of the Criminal Justice Policy Program, Harvard Law School.

Jordan Steiker is the Judge Robert M. Parker Endowed Chair in Law & Director of the Capital Punishment Center, University of Texas School of Law.

[1] Death Sentences in the United States Since 1977, Death Penalty Info. Ctr. (last visited Aug. 14, 2019).

[2] Id.

[3] Id.

[4] DPIC Mid-Year Review: At Midpoint of 2019, Death Penalty Use Remains Near Historic Lows, Death Penalty Info. Ctr. (July 1, 2019).

[5] Id.

[6] Executions by State and Region Since 1976, Death Penalty Info. Ctr. (last visited Aug. 14, 2019).

[7] Id.

[8] Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015) (Breyer, J., dissenting).

[9] Id.

[10] Id. at 2764–70.

[11] Id. at 2772–77.

[12] 139 S. Ct. 1112 (2019).

[13] Wilkerson v. Utah, 99 U.S. 130, 135–36 (1878).

[14] Id. at 134–35.

[15] See In re Kemmler, 136 U.S. 436 (1890).

[16] See Robinson v. California, 370 U.S. 660 (1962).

[17] See Louisiana v. Resweber, 329 U.S. 459 (1947).

[18] Id. at 474.

[19] Id. at 462, 464.

[20] Furman v. Georgia, 408 U.S. 238 (1972).

[21] Gregg v. Georgia, 428 U.S. 153 (1976).

[22] See, e.g., Deborah W. Denno, Lethal Injection Chaos Post-Baze, 102 Geo. L. J. 1331, 1340 (2014).

[23] Id. at 1333–34.

[24] Baze v. Rees, 553 U.S. 35 (2008).

[25] Id. at 47.

[26] Id.

[27] Id. at 50, 52.

[28] Id. at 80–81.

[29] Id. at 84–86.

[30] Id. at 86 (quoting Furman v. Georgia, 408 U.S. 238, 312 (1972) (White, J., concurring)).

[31] Id. at 86 n.19.

[32] Glossip v. Gross, 135 S. Ct. 2726 (2015).

[33] Id. at 2731.

[34] Stephen Breyer, Against the Death Penalty (2016).

[35] Executions by State and Region Since 1976, Death Penalty Info. Ctr. (last visited Aug. 14, 2019).

[36] Id.

[37] Gregg v. Georgia, 428 U.S. 153 (1976).

[38] Bucklew v. Precythe, 139 S. Ct. 1112, 1122 (2019).

[39] Id.

[40] Id. at 1123.

[41] Glossip v. Gross, 135 S. Ct. 2726, 2749 (2015) (Scalia, J., dissenting).

[42] Trop v. Dulles, 356 U.S. 86 (1958).

[43] Glossip, 135 S. Ct. at 2749 (Scalia, J., dissenting).

[44] Atkins v. Virginia, 536 U.S. 304 (2002).

[45] Roper v. Simmons, 543 U.S. 551 (2005).

[46] Coker v. Georgia, 433 U.S. 584 (1977).

[47] Kennedy v. Louisiana, 554 U.S. 407 (2008).

[48] Graham v. Florida, 560 U.S. 48 (2010).

[49] Miller v. Alabama, 567 U.S. 460 (2012).

[50] Bucklew v. Precythe, 139 S. Ct. 1112, 1126–27 (2019).

[51] Id. at 1127.

[52] Id.

[53] Id.

[54] Id. at 1128.

[55] Id.

[56] Id. at 1129–30.

[57] Id. at 1125.

[58] Id.

[59] Glossip v. Gross, 135 S. Ct. 2726, 2795 (2015) (Sotomayor, J., dissenting).

[60] Bucklew v. Precythe, 139 S. Ct. 1112, 1119 (2019).

[61] Id.

[62] Id. at 1120.

[63] Id.

[64] Id.

[65] Id. at 1121.

[66] 1133–34.

[67] Id. at 1134.

[68] Id.

[69] Dunn v. Ray, 139 S. Ct. 661 (2019).

[70] Id. at 661 (quoting Gomez v. U.S. Dist. Court for N. Dist. of Cal., 503 U.S. 653, 654 (1992)).

[71] Id. at 662 (Kagan, J., dissenting).

[72] Bucklew, 139 S. Ct. at 1134 n.5.

[73] Id. at 1146 (Sotomayor, J., dissenting).

[74] Id.

[75] Flowers v. Mississippi, 139 S. Ct. 2228 (2019).

[76] Snyder v. Louisiana, 552 U.S. 472 (2008).

[77] Foster v. Chatman, 136 S. Ct. 1737 (2016).

[78] Flowers, 139 S. Ct. at 2235 (quoting Foster, 136 S. Ct. at 1754).

[79] Id.

[80] Id. (quoting Flowers v. State, 947 So. 2d 910, 935 (Miss. 2007)).

[81] Id.

[82] Foster, 136 S. Ct. at 1744.

[83] Transcript of Oral Argument at 25, Foster, 136 S. Ct. at 1737 (No. 14–8349)

[84] Id. at 39.

[85] Brief of Petitioner at 16–17, Snyder v. Louisiana, 552 U.S. 472 (2008) (No. 06–10119), 2007 WL 2605447 (citing the Joint Appendix at 606, 607).

[86] State v. Snyder, 942 So. 2d 484, 506 (La. 2006) (Johnson, J., dissenting).

[87] Strauder v. West Virginia, 100 U.S. 303 (1879).

[88] Brown v. Bd. of Educ., 347 U.S. 483 (1954).

[89] Flowers v. Mississippi, 139 S. Ct. 2228, 2238–39 (2019).

[90] Batson v. Kentucky, 476 U.S. 79 (1986).

[91] Flowers, 139 S. Ct. at 2242–43.

[92] Foster v. Chatman, 136 S. Ct. 1737, 1752 (2016).

[93] Id. at 1753. In contrast to the rhetorical flourishes in Foster and Flowers, Justice Alito’s opinion in Snyder is rhetorically more muted, choosing to focus on how the prosecutor’s claimed justification for striking a black juror could not hold up after a side-by-side comparison of similarly situated white jurors, without addressing at all the inflammatory references to the O.J. Simpson trial that the dissenting state court justices had found so compelling. See Snyder v. Louisiana, 552 U.S. 472 (2008).

[94] “Flowers’ case . . . comes to us from a state court in the South. The courts are ‘familiar objects of the Court’s scorn,’ especially in cases involving race.” Flowers, 139 S. Ct. at 2254 (Thomas, J., dissenting) (citation and footnote omitted).

[95] Id. at 2255.

[96] Batson v. Kentucky, 476 U.S. 79, 87 (1986).

[97] McCleskey v. Kemp, 481 U.S. 279 (1987).

[98] There is a large literature on implicit bias and its potential effects within the criminal justice system. For a good illustrative example, see Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L.J. 345 (2007).

[99] See, e.g., Buck v. Davis, 137 S. Ct. 759 (2017) (reversing capital sentence because expert witness testified that the defendant was more likely to commit acts of violence in the future because he was black); Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) (creating an exception to the rule against impeaching jury verdicts in cases where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant).

[100] Flowers, 139 S. Ct. at 2251.

[101] Id. (Alito, J., concurring).

[102] Snyder v. Louisiana, 552 U.S. 472, 485 (2008).

[103] Thomas Frampton, What Clarence Thomas Gets Right About Batson, Stan. L. Rev. Online (forthcoming) (citing Thomas Ward Frampton, For Cause: Rethinking Racial Exclusion and the American Jury, 117 Mich. L. Rev. (forthcoming 2020)).

[104] Moore v. Texas, 139 S. Ct. 666 (2019).

[105] Moore v. Texas, 137 S. Ct. 1039 (2017).

[106] Atkins v. Virginia, 536 U.S. 304 (2002).

[107] Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004).

[108] Hensleigh Crowell, The Writing is on the Wall: How the Briseno Factors Create an Unacceptable Risk of Executing Persons with Intellectual Disability, 94 Tex. L. Rev. 743, 769–81 (2016).

[109] Ex parte Briseno, 135 S.W.3d at 6.

[110] Id.

[111] Moore v. Texas, 137 S. Ct. 1039, 1051 (2017) (internal quotation marks and citation omitted).

[112] Moore v. Texas, 139 S. Ct. 666, 670 (2019) (Roberts, C.J., concurring).

[113] Id. at 672.

[114] Id. at 673 (Alito, J., dissenting) (internal quotation marks and citation omitted).

[115] Id. at 673–74.

[116] Madison v. Alabama, 139 S. Ct. 718 (2019).

[117] Ford v. Wainwright, 477 U.S. 399, 408–09 (1986).

[118] Panetti v. Quarterman, 551 U.S. 930, 957–58 (2007).

[119] Id. at 959–60.

[120] See generally Carol S. Steiker, Panetti v. Quarterman: Is There a "Rational Understanding" of the Supreme Court's Eighth Amendment Jurisprudence?, 5 Ohio St. J. Crim. L. 285 (2007) (describing the many questions left open by Panetti about competency to be executed).

[121] Madison, 139 S. Ct. at 726.

[122] Id. at 726–27.

[123] Id. at 728 (reference omitted).

[124] Id. at 727.