January 01, 2015

Preview of 2015 Death Penalty Arguments

Meredith Gallen, Staff Attorney

The U.S. Supreme Court is set to hear two death penalty cases this spring. The Court's decision in these cases could significantly impact determinations of intellectual disability and states' lethal injection protocols.

Brumfield v. Cain

This spring, the U.S. Supreme Court will hear oral arguments in Brumfield v. Cain. Kevan Brumfield was convicted of capital murder and sentenced to death in 1995, seven years before the Court’s ruling in Atkins v. Virginia banned the execution of individuals with intellectual disabilities. During Mr. Brumfield’s trial, the defense’s mitigation evidence focused on Mr. Brumfield’s difficult and abusive childhood. Mr. Brumfield’s defense experts made some ancillary statements about his intelligence, but Mr. Brumfield’s defense counsel did not argue that his life should be spared because he is intellectually disabled. Mr. Brumfield’s state post-conviction proceedings took place in the years after Atkins was decided. During those proceedings, Mr. Brumfield requested that the court hold an Atkins hearing to evaluate evidence of his intellectual disability and provide him with funding to obtain evidence of his mental capacity in advance of that hearing. The state court denied both of Mr. Brumfield’s requests and held that the passing comments about Mr. Brumfield’s intelligence made by experts at the trial level had definitively established that Mr. Brumfield could not prove a claim of intellectual disability. The federal district court disagreed, finding both that the state court’s decision was unreasonable and that it violated U.S. Supreme Court precedent. The district court subsequently held an evidentiary hearing and found that Mr. Brumfield is intellectually disabled. On appeal, however, the U.S. Court of Appeals for the Fifth Circuit reversed the district court’s decision. The Fifth Circuit did not dispute the district court’s finding of intellectual disability but rather found that the district court had “no reason” to conduct the evidentiary hearing. It held that the state court’s earlier decision was reasonable and consequently that it must disregard all evidence produced at that hearing. The Supreme Court will now review that decision and decide whether the state court’s denial of an Atkins hearing and funding to prepare for the Atkins hearing were unconstitutional.

Glossip v. Gross

In April, the U.S. Supreme Court will hear arguments in Glossip v. Gross, a case brought by four Oklahoma death row prisoners. The prisoners contend that Oklahoma’s lethal injection protocol violates the Eighth Amendment by posing an unacceptable risk of pain and suffering. The case specifically calls for a review of the efficacy of the drug midazolam, the first drug used in Oklahoma’s protocol. Cert was granted in this case after the original named plaintiff, Charles Warner, was executed on January 15, 2015, over the strong dissent of four justices. According to Supreme Court rules, only four justices are required to vote in favor of a grant of certiorari, but five justices are needed to grant a stay of execution. Since agreeing to hear Glossip, the Court has granted temporary stays for the remaining three Oklahoma death row plaintiffs. However, other states – including states whose execution protocols call for the use of midazolam, the drug at issue in Glossip – are continuing to move forward with scheduled executions.

Meredith Gallen, Staff Attorney