Capital Punishment: Summary of Supreme Court Decisions of the 2003-2004 Term
CRS Report for Congress
Capital Punishment: Summary of Supreme
Court Decisions of the 2003-2004 Term
Paul Starett Wallace, Jr.
Specialist in American Public Law
American Law Division
Summary
In the 2003-2004 term, the Supreme Court decided in Banks v. Dretke, that Delma
Banks should be allowed to raise Brady challenges based on failure by the prosecution
to release exculpatory evidence in federal habeas proceedings even though they had
been fully presented to the state courts. In Nelson v. Campbell, it ruled that a challenge
to the method of execution under 42 U.S.C. § 1983 is not equivalent to a habeas corpus
petition, provided that the petitioner is not contesting his imprisonment (the petitioner
claimed that the Alabama prison’s intended use of a “cut-down” procedure to access his
veins for a lethal injection violated his Eighth Amendment protection against cruel and
unusual punishment) and that section (§ 1983) is appropriate for his Eighth Amendment
claim seeking a temporary stay and permanent injunctive relief. In Beard v. Banks, the
Court held that the petitioner could not benefit from retroactive application of its 1988
decision in Mills v. Maryland regarding consideration of less than unanimously-found
mitigation. In Schriro v. Summerlin, the Court decided against retroactive application
of its 2002 decision in Ring v. Arizona, regarding the right to have a jury find any fact
necessary for imposition of the death penalty. In Tennard v. Dretke, the Court held that
the Court of Appeals for the Fifth Circuit used an improper legal standard when it
refused to allow Tennard to appeal the district court’s decision denying him a writ of
habeas corpus based on his failure to establish a nexus between his crime and evidence
of his low IQ. In Mitchell v. Esparza, (per curiam) it concluded that the Ohio Court of
Appeals had properly subjected the habeas petitioner’s claims to harmless error, when,
although the sole offender, he argued he had not been charged with being the principal
offender.
The capital punishment decisions which were decided during the 2003-2004 Term
involved issues concerning: (1) prosecutorial misconduct and ineffective assistance of
counsel, (2) a complaint brought under 42 U.S.C. § 1983 by a death-sentenced prisoner,
who seeks to stay his execution in order to pursue a challenge to the procedures for
carrying out the execution, relative to whether it was properly recharacterized as a habeas
corpus petition under 28 U.S.C. § 2254, (3) whether a Supreme Court 1988 decision that
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held that jurors did not have to agree unanimously on the existence of mitigating
circumstances when determining the appropriate sentence, could be applied retroactively
to invalidate a death sentence, (4) whether intellectual functioning has mitigating
dimensions beyond the impact it has on the ability to act deliberately, and (5) whether the
Eighth Amendment precluded the death sentence and did the state court improperly
subject the defendant’s claims to harmless error review.
Banks v. Dretke1 was a death penalty case in which, despite Brady v. Maryland,2
which requires the state to turn over material, exculpatory or impeachment evidence, the
state withheld evidence that would have allowed Banks to discredit two key prosecution
witnesses.3 In the course of litigating his federal habeas petition, Banks uncovered the
evidence to support his Brady claim. The district court granted a writ of habeas corpus
with respect to Bank’s death sentence, but did not overturn the conviction, deciding that
Banks had not sufficiently pressed his Brady claim earlier.4 The Court of Appeals vacated
the writ.5
In an opinion written by Justice Ginsburg, the Supreme Court reversed. The decision
turned on the application of the Court’s since replaced “cause and prejudice standard” that
governed when a state prisoner’s federal habeas claim might be heard notwithstanding
his failure to afford state courts the opportunity to cure the asserted defect. Three factors
account for “cause” on Bank’s behalf: (1) the state knew of but kept back information that
undermined the creditability of two of its witnesses, (2) before trial, the state asserted that
it would disclose all Brady material, and (3) in the state post conviction proceedings, the
state continued to deny the substance of Bank’s suggestions of Brady violations.6 After
finding cause, Justice Ginsburg addressed the prejudice issue. The issue here was
whether the suppressed evidence could reasonably be taken so as to place the case in such
a different light as to undermine the confidence in the verdict. The Court answered this
question in the affirmative,7 although Justices Thomas and Scalia dissented here in the
belief that full disclosure would not have changed the result.8
The lower courts had rejected the Brady claim, in part because Banks had failed to
properly amend his habeas petition (pleadings) to include the claim once he uncovered
evidence to substantiate it.9 Banks’ contention was that the claim mentioned in other
1 124 S.Ct. 1256 (2004).
2 373 U.S. 83, 87 (1963).
3 124 S.Ct. at 1262.
4 Id. at 1269-270.
5 Id. at 1270-271.
6 Id. at 1273.
7 Id. at 1279.
8 124 S.Ct. 1281 (Thomas, J. with Scalia, J.) (concurring in part and dissenting in part).
9 Id. at 4203-4204.
submissions should have been treated as if raised in the pleadings under Civil Procedure
Rule 15(b) in an evidentiary hearing as Rule 15(b) instructs.10 The Court agreed.
Nelson v. Campbell11 involved a death row inmate who had filed a claim under 42
U.S.C. § 1983 of the civil rights statute stating that his damaged veins would make it
impossible to insert an intravenous line for the lethal injection without cutting deep into
his flesh and muscle. Nelson said that this procedure which is called a “cut-down” was
a violation of his rights under the Eighth Amendment. The writ of certiorari was limited
to the issue of whether a complaint brought under 42 U.S.C. § 1983 by a death-sentenced
state prisoner, who seeks to stay his execution in order to pursue a challenge to the
constitutionality of the “cut-down” procedure for carrying out the execution is a proper
recharacterization of a habeas corpus petition under 28 U.S.C. §2254?
The Court ruled that Nelson could pursue his claim that the lethal injection
procedures in his case constituted cruel and unusual punishment and that 42 U.S.C. §
1983 is an appropriate vehicle for his Eighth Amendment claim seeking a temporary stay
and permanent injunctive relief. The Court also ruled that a challenge to the method of
execution under 42 U.S.C. § 1983 is not equivalent to a habeas corpus petition, provided
the challenger is not contesting his imprisonment. Writing for a unanimous Court, Justice
O’Connor agreed that Nelson’s claim was separate from any challenge to the method-of-
execution or conviction. The Court also said that it need not reach the difficult question
of how “method-of-execution” claims should be classified generally.12
Beard v. Banks13was a death penalty case in which the petitioner was sentenced to
death on 12 counts of first-degree murder. After the Pennsylvania Supreme Court upheld
the conviction, the United States Supreme Court announced its decision in Mills v.
Maryland,14 which overturned a death sentence when a jury understood the sentencing
instructions to preclude consideration of mitigating factors not unanimously found to
exist. Under the Court’s Teague v. Lane standard rule,15 Mills could only be retroactively
applied to Banks’ case (after the completion of his direct appeals) if Mills was not a “new
rule” of constitutional construction or if Mills were “a watershed” decision. The Third
Circuit held that Mills did not announce a new principle of law for retroactivity purposes,
and therefore its application of Mills to its review of Banks’ sentence was proper.
In a 5-4 decision written by Justice Thomas, the Court decided that the rule
announced in Mills — -that sentencing schemes could not prevent jurors from considering
mitigating evidence that had not been accepted unanimously when deciding whether to
apply the death penalty — -was a new rule, because it was not compelled by previous U.S.
10 Id. at 1280.
11 124 S.Ct. 2117 (2004).
12 Id. at 2123-124.
13 124 S.Ct. 2504 (2004).
14 486 U.S. 367 (1988).
15 489 U.S. 288 (1989).
Supreme Court decisions.16 As a new rule, it could only be applied retroactively if, under
the second exception, it was a “...watershed rule[] of criminal procedure implicating the
fundamental fairness and accuracy of the criminal proceeding.”17 Deciding that it was
not a watershed rule, the Court held that it could not be applied retroactively and
(reversing the Court of Appeals) Banks’ conviction was therefore constitutional.
Justice Stevens, writing for the dissenting justices, finding nothing novel about the
Mills rule stated: “...the kind of arbitrariness that would enable 1 vote in favor of death
to outweigh 11 in favor of forbearance would violate the bedrock fairness principles that
have governed our trial proceedings for centuries. Rejecting such a manifestly unfair
procedural innovation does not announce a ‘new rule’...but simply affirms that our
fairness principles do not permit blatant exceptions.”18
In Schriro v. Summerlin,19 the defendant (Summerlin) was convicted and sentenced
to death under an Arizona law, which authorized the trial judge, rather than the jury, to
determine the presence of aggravating circumstances which would cause the defendant
to become eligible for the death sentence. After unavailingly exhausting his direct appeal
to the Arizona state supreme court, and while his habeas case was pending in the Ninth
Circuit Court of Appeals, the U.S. Supreme Court decided in Ring v. Arizona20 that the
Arizona sentencing law was unconstitutional because a jury must decide the existence of
the aggravating circumstances. The Ninth Circuit applied the Ring decision retroactively
on the basis that Ring was a substantive decision, or, in the alternative, if it was
procedural it was a “watershed” decision. The U.S. Supreme Court reversed, deciding
first, Ring was procedural, not substantive, and, second, as procedural it was not a
“watershed” decision.21
Commenting upon the differences between death row inmates granted new
sentencing hearings and death row inmates denied new sentencing hearings because they
are in a later stage of appeals, Justice Breyer stated: “Certainly the ordinary citizen will
not understand the difference. That citizen will simply witness two individuals, both
sentenced through the use of unconstitutional procedures, one individual going to his
death, the other saved, all through an accident of timing.22 How can the Court square this
spectacle with what it has called the ‘vital importance to the defendant and to the
16 Id. at 2509.
17 Id.
18 124 S.Ct. 2515, 2516 (2004) (Stevens, J., with Souter, Ginsburg, and Breyer, JJ., dissenting).
19 124 S.Ct. 2519 (2004).
20 536 U.S. 584 (2002).
21 124 S.Ct. at 2524-526.
22 According to the majority opinion in the Schriro case, the rule for determining when
constitutional criminal rulings that impose a “new rule” are retroactive appears to be as follows:
If a convicted person still has a direct appeal available, a decision applies retroactively; but if
direct appeals are exhausted and a convicted defendant only has incidental relief available, the
rule may not apply.
community that any decision to impose the death sentence be, and appear to be, based on
reason’? ”23
In Tennard v. Dretke24 the Court reversed the Fifth Circuit’s decision that denied
habeas relief to a prisoner on death row in Texas. In 1986, the petitioner, Tennard, was
convicted of capital murder in Texas. During the penalty phase of his trial, Tennard’s
parole officer testified regarding his low IQ, and his defense counsel argued that the low
IQ mitigated his culpability. Presented with the only two “special issues” used in the
Texas capital sentencing scheme at the time — whether the petitioner’s conduct was
committed deliberately and whether the petitioner posed a threat of future dangerousness
— the jury answered both issues in the affirmative.
The Fifth Circuit denied Tennard a certificate of appealability. It held that Tennard
had not met the Fifth Circuit’s two-part, post-Penry test regarding whether his evidence
was “constitutionally relevant.” The court explained that Tennard had failed to present
evidence of a “uniquely severe permanent handicap with which the defendant was
burdened through no fault of his own,” because a low IQ — standing alone — is not a
“uniquely severe” condition. In any event, the court emphasized, Tennard had not shown
that the criminal act was attributable to this permanent condition.
In an opinion by Justice O’Connor, and joined by Justices Stevens, Kennedy, Souter,
Ginsburg, and Breyer, the Court reversed the Fifth Circuit. A certificate of appealability
should issue if the applicant demonstrates that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong, and this analysis must
take into account the deferential standard of review applicable to federal habeas petitions
(28 U.S.C. § 2254(d)(1)).25 The Court noted that the “constitutional relevance” test “...has
no foundation in the decisions of this [Supreme] Court, and that it could not countenance
“the suggestion that low IQ evidence is not relevant mitigating evidence . . . unless the
defendant also establishes a nexus to the crime.”26 The Fifth Circuit should have granted
the certificate of appealability. Reasonable jurists could conclude that the low IQ
evidence was relevant mitigating evidence and that the state courts unreasonably
concluded otherwise in this case.27
Chief Justice Rehnquist, Justices Scalia, and Thomas each wrote separate dissenting
opinions contending basically that the District Court conducted the proper inquiry
regarding whether the low IQ evidence was before the jury and properly concluded that
it was.28
23 124 S.Ct. 2526, 2529 (2004) (Breyer, J., with Stevens, Souter and Ginsburg, JJ., dissenting).
24 124 S.Ct. 2562 (2004).
25 Id. at 2569.
26 Id. at 2572.
27 Id. at 2573.
28 124 S.Ct. 2573 (2004) (Rehnquist, CJ., dissenting); 124 S.Ct. 2575 (2004) (Scalia, J.
dissenting); 124 S.Ct. 2576 (2004) (Thomas, J. dissenting).
In Mitchell v. Esparza29 the Court held, per curiam, that habeas relief is appropriate
only if a court applied harmless error review in an objectively unreasonable manner.
Esparza was convicted of murder in Ohio and received the death penalty. After appealing
his conviction within the Ohio courts, he petitioned the federal district court for a writ of
habeas corpus. The district court granted habeas and the Sixth Circuit affirmed on the
grounds that Esparza had not been charged as the “principal offender,” a prerequisite for
imposition of the death penalty under Ohio law. The Ohio courts rejected the claim,
holding that it was harmless error since Esparza was the only person charged in the crime.
The Court reversed the Sixth Circuit, concluding that the error was harmless since
“principal offender” had the same meaning as “actual killer.”30
29 124 S.Ct. 7 (2003).
30 Id. at 12.