Death Penalty

Hurst v. Florida - Post-Argument SCOTUScast

SCOTUScast 11-7-15 featuring Jack Park
John J. Park, Jr. November 07, 2015

On October 13, 2015, the Supreme Court heard oral argument in Hurst v. Florida.  Timothy Lee Hurst was convicted of murdering his co-worker and sentenced to death after a jury recommended that penalty by a vote of 7-5.  The question before the Court here is whether Florida’s death sentencing scheme--which Hurst contends does not require unanimity in the jury death recommendation or in the finding of underlying aggravating factors--violates the Sixth or Eighth Amendments in light of the Court’s 2002 decision Ring v. Arizona, which holds that the aggravating factors necessary for imposition of a death sentence be found by a jury. 

To discuss the case, we have Jack Park, who is Of Counsel with Strickland Brockington Lewis LLP.

Capital Punishment Once Again Before the Supreme Court: Kansas v. Gleason and Kansas v. Carr - Podcast

Criminal Law & Procedure Practice Group Podcast
William J. Haun October 08, 2015

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?


  • William J. Haun, Associate, Hunton & Williams LLP

Execution Methods and Deciding Implementation of the Death Penalty - Podcast

Criminal Law & Procedure Practice Group Podcast
John Bessler, Kent S. Scheidegger July 15, 2015

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.

  • Mr. Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation
  • Prof. John Bessler, Professor of Law, University of Baltimore School of Law

Davis v. Ayala - Post-Decision SCOTUScast

SCOTUScast 7-8-15 featuring Ronald Eisenberg
Ronald Eisenberg July 08, 2015

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. 

Glossip v. Gross - Post-Decision SCOTUScast

SCOTUScast 7-1-15
Kent S. Scheidegger July 01, 2015

On June 29, 2015, the Supreme Court issued its decision in Glossip v. Gross. This case concerned three questions. The first was whether it is constitutional for a state to execute an inmate by administering a three-drug protocol in which a) there is some scientific agreement that the first drug does not sufficiently relieve pain or consistently render a person in a deep state of unconsciousness, and b) there is a substantial risk that administration of the second and third drugs would cause significant pain to a still-conscious prisoner. The second question was whether the plurality stay standard of Baze v. Rees is applicable when states are using a different execution protocol than the one involved in Baze v. Rees. The third question was whether, if a state's protocol for lethal injection will violate the Eighth Amendment, the legal duty to propose a different drug falls upon the prisoner.

In an opinion written by Justice Alito, the Court held by a vote of 5-4 that the prisoners failed to establish a likelihood of success on the merits of their claim that the administration of midazolam as the first drug in a three drug execution protocol violates the Eighth Amendment. The Court also held that to prevail on an Eighth Amendment method-of-execution claim, the prisoner is required to prove that the protocol creates a "demonstrated risk" of severe pain and that the risk is substantial relative to available alternatives.

Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas joined the opinion of the Court. Justice Scalia filed a concurring opinion which Justice Thomas joined. Justice Thomas filed a concurring opinion which Justice Scalia joined. Justice Breyer filed a dissenting opinion, which Justices Ginsburg, Breyer and Kagan joined. The judgment of the Tenth Circuit was affirmed.

To discuss the case, we have Kent S. Scheidegger, who is Legal Director & General Counsel at the Criminal Justice Legal Foundation.