- Judge Reena Raggi, U.S. Court of Appeals, 2nd Circuit
Somewhat overlooked at the end of the United States Supreme Court’s October 2014 term was a contentious 5-4 decision on the application of the death penalty in Glossip v. Gross. On Wednesday, October 7, the second day of oral arguments for the term, the Supreme Court wasted no time in turning its attention back towards the death penalty in Kansas v. Gleason and Kansas v. Carr. The cases ask the Court to decide whether the Eighth Amendment requires that capital juries be “affirmatively instructed” that mitigating circumstances need not be proved beyond reasonable doubt. Will the October 2015 term be remembered, as some commentators are predicting, for its remarkable Eighth Amendment focus?
During oral argument in Glossip v. Gross, Justice Samuel Alito pointed to what he called "a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain[.]" The goal of these efforts, apparently, is to facilitate constitutional challenges to the death penalty by making its implementation more painful.
This teleforum analyzed whether the efforts by death penalty opponents to pressure drug manufacturers to stop supplying drugs for use in execution--resulting in states resorting to execution methods that are more painful--are circumventing the democratic process in debating the death penalty. Specifically, our experts debated the methods used by those in opposition to the death penalty to shut down access to less painful execution methods, the propriety of complicating the death penalty's implementation, the relationship between that complication and constitutional challenges to the death penalty, and whether this amounts to treating the democratic process like a one-way ratchet: only permitting the people to choose more painful means of implementing executions so as to facilitate legal challenges to the death penalty.
On June 18, 2015, the Supreme Court issued its decision in Davis v. Ayala. The issue in this case was whether Ayala was entitled to federal habeas relief because the judge in his capital murder trial, when responding to Ayala’s objection that the prosecution used its peremptory challenges to strike potential jurors based on race, excluded Ayala from the hearing during which the judge considered the prosecution’s explanation for the peremptory challenges. The Ninth Circuit granted Ayala’s petition for habeas relief.
In an opinion delivered by Justice Alito, the Court reversed the Ninth Circuit by a vote of 5-4 and remanded the case. Any federal constitutional error that may have occurred as a result of the exclusion of Ayala from the hearing, the Supreme Court held, was harmless with respect to all seven prospective jurors who had been stricken.
Justice Alito’s opinion was joined by the Chief Justice and Justices Thomas, Scalia, and Kennedy. Justices Kennedy and Thomas filed concurring opinions. Justice Sotomayor filed a dissenting opinion, which was joined by Justices Breyer, Kagan, and Ginsburg.
To discuss the case, we have Ronald Eisenberg, who heads the Law Division of the Philadelphia District Attorney’s Office.