It’s a busy term for the death penalty at the United States Supreme Court. A total of six cases will be considered by the justices over the next two months. They primarily involve procedural questions and none appear to have the ability to abolish capital punishment entirely, a subject the justices were divided on last term.
Two cases out of Kansas were heard October 7. One dealt with sentencing requirements and jury instructions in consolidated cases. The Kansas Supreme Court overturned the death sentences of two brothers tried together saying the Eighth Amendment requires individual consideration of a defendant at capital sentencing hearings and that the court violated the requirement when it allowed a joint penalty proceeding.
The justices that day also reviewed a technical question about whether jury instructions for the penalty phase of a capital trial was consistent with the ban on cruel and unusual punishment. Lawyers for three inmates argued the jury instructions were ambiguous and the jurors were not allowed to properly consider mitigating factors that might have justified a sentence of life without parole.
The justices heard a Florida case on October 13 that will could decide whether judges can sentence someone to death without a unanimous determination by the jury. That state has one of the nation’s highest rates of death sentences and executions. But attorneys for inmates argue the way it sentences criminals is unconstitutional.
In most states, a 12-member jury must agree on all the aggravating factors that can lead to a death sentence. There are two states where only 10 of 12 must agree. But in Florida, only a simple majority is needed. In the case of Timothy Hurst, a judge sentenced him to death after jurors voted 7-5. His lawyer argues the system violates both the Sixth and Eighth Amendments.
In another case out of Louisiana, justices were asked to decide whether a 2012 decision barring mandatory sentences of life without parole for juvenile killers is retroactive. Henry Montgomery was 17 when he committed a crime is 69 now and seeking parole. He is one of 2,000 people serving sentences of life without parole for murders committed before the age of 18. Many of them automatically received the sentence.
In November, the justices will consider whether prosecutors in Georgia violated the rule against racial selection of juries by striking all four black prospective jurors in the case of Timothy Foster. Later in the term, the court will consider the case of Terrance Williams, a death row inmate who says an elected state judge who upheld his murder conviction should have recused himself from hearing a capital conviction appeal because of his prior role as a prosecutor in the case.
