Friday, April 07, 2017

Expanding Reality-Based Law in the Death Penalty Area

by Sherry F. Colb

In my most recent Verdict column, I discuss the case of Moore v. Texas, in which the Supreme Court rejected the Texas approach to determining whether a defendant is intellectually disabled and therefore ineligible for the death penalty.  A Texas state habeas court had recommended a finding of intellectual disability for Moore, applying standards from the most up-to-date clinical manuals addressing intellectual disability and mental disorders.  The Texas Court of Criminal Appeals ("the CCA") rejected the state habeas court's recommendation, however, applying instead the standards contained in a 2004 case, Ex Parte Briseno, which utilized a combination of standards from an older intellectual disability manual (since superseded by the one used by the state habeas court) and several factors seemingly invented by the Briseno court and related to stereotypes about the intellectually disabled (including a reference to the intellectually disabled character, Lennie, in John Steinbeck's 1937 novel, Of Mice and Men).  The U.S. Supreme Court reversed the CCA's decision, finding that the court should have applied up-to-date clinical standards to determine whether Moore was intellectually disabled.  In the column, I contrast the Court's preference for the truth regarding a convict's being intellectually disabled with the Court's and the evidence rules' willingness to entertain fictions as a premise for various rulings and rules.
In this post, I want to suggest that perhaps the Supreme Court is signaling a greater willingness to demand reality-based decision-making in the context of the death penalty.  Rather than simply deferring to the states' manner of determining whether an inmate is constitutionally ineligible for the death penalty, the Court is prepared to demand that states use clinically up-to-date standards for making their determinations.  In other death penalty cases, the Court has in the past been less interested in knowing the truth.

Take, for example, McCleskey v. Kemp, decided in 1987.  In McCleskey, the Supreme Court rejected the petitioner's claim that he was sentenced to die because of a combination of his race (African American) and the race of his victim (white).  To support his claim, McCleskey produced a study of Georgia sentencing practices showing that statistically, an African American perpetrator who kills a white victim is far more likely to be sentenced to death than any other racial combination of perpetrator and victim.  The Court refused to credit the application of the study to McCleskey's case, however, despite the fact that McCleskey was African American and his victim was white.  The Court insisted that to prevail on a racial discrimination claim of this sort, McCleskey would have had to show that his particular jury discriminated against him on the basis of race.  Failing that, he lost the case.

By refusing to take into account the statistical truth set before them, the Justices in McCleskey decided to ignore reality and instead to pretend that statistical truth tells us nothing about what goes on in an individual case.  Had the study shown instead that people exposed to a particular toxin are several times more likely to develop cancer than people not exposed to the toxin, it would have been similar for a court to say that causation in a case in which a plaintiff's exposure to the toxin was followed by her getting cancer is not illuminated by the study.  An important reason for the Court's rejection of the statistical evidence is that it would have interfered with the death penalty too much.  It would have meant that many sentences, in Georgia (and perhaps eventually around the country), would be presumptively the product of racial discrimination and should therefore be held unconstitutional.  But the Court was not ready to interfere to that extent with the practice of capital punishment.  So it resorted to a "we don't know nothing about statistics; show us facts about the particular case" approach.

Perhaps now that the Court has indicated a willingness to look at real facts in determining eligibility for the death penalty, it will reconsider its decision in McCleskey.  Because states are executing many fewer people now than they were in the past, the Court may be less attached to the fiction that sentencing is free from the taint of racial discrimination, a fiction that is necessary to sustain the death penalty in its current form.

And perhaps the Court will also begin to look behind the fiction that lethal injection--the most common method of execution in the United States--is humane enough to satisfy the Eighth Amendment ban on cruel and unusual punishments, a fiction embraced in Baze v. Rees and Glossip v. Gross and likely to come into play in the impending rapid-fire spate of lethal injections in Arkansas.  Ultimately, an honest look at the death penalty will expose the facts that it is both racially discriminatory and physically painful for the condemned.  Perhaps such honesty will spell the end of executions in this country.