Evolving Standards, Evolving Justice: Death Penalty Issues in the Roberts Court

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WASHINGTON — The United States Supreme Court’s decisions in its two death-penalty cases this term — Lawrence v. Florida and Ayers v. Belmontes – will begin to reveal how concerned the Roberts Court is about the reliability, consistency and fairness of the country’s capital punishment process.

In recent years, in cases such as Wiggins v. Smith, Rompilla v. Beard, Atkins v. Virginia, Roper v. Simmons, Tennard v. Dretke, and Miller-El v. Dretke, among others, the Court has shown a renewed interest in a fairer and more equitable death penalty. These two cases may provide some indication of whether that trend will continue.

In Lawrence, the death-sentenced petitioner — with an IQ of 81 — relied upon his state-selected and state-monitored attorney to meet the one-year statute of limitations for filing federal habeas petitions. The attorney for Gary Lawrence believed that asking the Supreme Court to review the denial of state post-conviction relief would temporarily postpone Lawrence’s deadline for filing his federal habeas petition (or, in legal jargon, “toll the federal clock”). Although there is a split in the Circuit Courts on this issue, the Eleventh Circuit held that the appeal to the Supreme Court did not postpone the filing deadline and therefore upheld the dismissal of Lawrence’s federal habeas petition as untimely. If the Supreme Court affirms the Eleventh Circuit’s decision, Lawrence will be deprived of any federal court review of his constitutional claims prior to his execution.

Lawrence’s basic claim in the Supreme Court is that, under the plain meaning of the Antiterrorism and Effective Death Penalty Act (AEDPA), the filing of a certiorari petition from the denial of state post-conviction relief temporarily postpones the deadline for filing a federal habeas petition In the alternative, he argues that he was entitled to equitable postponement (or, in legal jargon, “equitable tolling”) of his federal filing deadline on two grounds: (1) the confusion in the law created by the split in the circuits; and (2) his reliance upon Florida’s pledge that it would monitor his state-selected attorney to ensure that the attorney was providing “quality” representation, including the filing of “appropriate motions in a timely manner.”

The ACLU filed an amicus brief in Lawrence explaining why, under well-established legal principles, Gary Lawrence was entitled to equitable postponement of his filing deadline given his detrimental reliance on Florida’s pledge to provide him with “quality representation.” In its brief, the ACLU also shows that in recent years state-selected and state-monitored counsel for an extraordinary 16 inmates on Florida’s death row have apparently missed the deadline for filing federal habeas petitions, thereby demonstrating a deeply disturbing crisis in the state’s post-conviction legal representation.

Although on its face Ayers v. Belmontes presents a somewhat narrow question, the Court’s opinion could turn out to have broader significance for the fairness of capital trials. The narrow question presented is whether the jurors at Fernando Belmontes’ capital trial understood that they were required to consider evidence that he would adjust well to prison life if sentenced to life imprisonment when deciding whether to impose a death sentence.

At the time of his trial, California’s “catch-all” mitigating factor instructions directed jurors to consider “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” Previously, the Supreme Court had held that this catch-all factor makes clear to jurors that they are to consider evidence regarding the defendant’s disadvantaged background and emotional and mental problems when deciding whether the death penalty is warranted. In Belmontes, the Ninth Circuit held that the combination of the “catch-all” mitigating factor and confusing mid-deliberation instructions by the trial judge likely misled jurors into believing that they could not consider Belmontes’ evidence of good behavior in prison when deciding the appropriate penalty.

The Supreme Court’s resolution of this case could well be a barometer of its concern about the critical issue of ensuring that capital jurors understand their constitutional obligation to consider a capital defendant’s mitigating evidence before deciding whether he will live or die. Numerous empirical studies have shown that capital jurors often do not understand this obligation.