If Judge John Roberts Takes Sandra Day O'Connor's Seat, How Will the Supreme Court's Death Penalty Jurisprudence Change?

By ELAINE CASSEL
Tuesday, Aug. 16, 2005

BY ELAINE CASSEL

We have rightly heard a great deal of commentary on an important question: What would the confirmation of Judge John Roberts - who would take retiring Justice Sandra Day O'Connor's Supreme Court seat - mean for the right of privacy, and for Roe v. Wade?

In this column, I want to ask another important question: What would John Roberts's confirmation mean for the Supreme Court's death penalty jurisprudence?

My analysis suggests that it may mean a great deal.

Justice O'Connor's Recent Death Penalty Vote

In 2002, Justice O’Connor joined the majority in an important death penalty opinion, Atkins v. Virginia - which I discussed in detail in an earlier column. There, the Court held -- in a 6-3 vote -- that executing a defendant whom the jury finds to be mentally retarded is unconstitutional.

In this case, and in other recent cases that put limits on the death penalty, the Court majority cited evolving public “standards of decency” for its ruling, and based its assessment of those standards in part upon a survey of state and international death penalty law.

If Roberts takes O’Connor’s seat, a single vote could make it even harder to make further progress in this area.

As I will explain below, there is reason to think a Justice Roberts will be quite conservative on the death penalty. Yet, further progress is required if the mandate of Atkins, to take just one example, is not to be an empty promise.

How Would a Justice Roberts Vote on the Death Penalty?

The public knows little about what Judge Roberts thinks about the death penalty.

On one hand, he is a staunch Catholic and the Catholic Church has often taken a stand against the death penalty.

On the other hand, in a February 1983 memo written while he worked in the Reagan White House, Roberts depicted Supreme Court death penalty appeals as, put bluntly, an annoyance and waste of time. He pointed out that the Supreme Court could significantly reduce its caseload "by abdicating the role of fourth or fifth guesser in death penalty cases."

Roberts was correct that by the time a state death penalty case gets to the Court it may have been evaluated three or four times. The trial court has made legal rulings in the case. So, probably, has a state appellate court. Then, in a last ditch effort, a defense team may have filed a habeas corpus petition in federal court.

But unlike all these courts, only the Supreme Court can decide to overrule prior Supreme Court precedent - as it did in Roper and Atkins. (Atkins reversed Penry v. Lynaugh (1989), in which the Court found that execution of the mentally retarded was not per se unconstitutional.)

So Roberts is not right that the Supreme Court is merely fourth- or fifth-guessing determinations made by the prior courts. It is making one entirely original determination, on which no other court has yet ruled: Should prior Supreme Court death penalty precedent be modified under the particular set of facts before it?

Today, the Supreme Court's docket is only about half of what it was when Roberts was writing the memo. So if he was truly worried about overcrowding the courts' docket with death penalty cases, that worry ought to have disappeared (though it seems we shouldn't look to Roberts to expand the Court's death penalty docket).

But if Roberts's real point was the Court should not take very many death penalty cases, because they are typically reviewed multiple times anyway, he may close even further the already- narrow gate that lets only a few death penalty cases reach the Court each year.

Yet, behind each of these appeals is a human being for whom the Court's decision means the difference between life and death. Should this individual's plea for review be framed simply as a matter of docket control?

Judge Roberts's Ruling in a Criminal Case Suggests Little Concern for Fairness

As a D.C. Circuit judge, Roberts had few occasions to decide criminal cases. But one was a remarkable for its outrageous results.

Washington D.C. police made local headlines when they arrested a twelve-year-old African-American girl, Ansche Hedgepeth, in a D.C. subway station. Her crime? She'd put a single French fry into her mouth - violating a ban on eating on the Metro. For this, she was handcuffed, taken to the station in the back of a squad car, and ultimately convicted.

In Hedgepeth v. Washington Metropolitan Area Transit Authority, Roberts saw no constitutional violation - even though, anomalously, adults who committed the same offense, under the law, merely received a citation. Nor did he see any constitutional violation in the gross disproportion between what Ansche had done, and how she was treated by the police.

This decision, and Roberts's view that death penalty cases waste the Court's time, bode ill for any hope that Roberts might be more like Justice Kennedy than Justice Rehnquist (who dissented in both Roper and Atkins), when it comes to death penalty cases.

After all, Roberts clerked for Rehnquist. Perhaps he shares Rehnquist's view - expressed in his dissent in Atkins -- that the only inroads in the death penalty ought to be those made by state laws and state juries. In other words, according to this view, the Court should in effect abandon scrutiny of the death penalty on Fourteenth Amendment grounds and leave every state to its own standards of due process and cruel and unusual punishment.

In light of Roberts's likely role on the Court if confirmed, perhaps the conjunction of two impromptu remarks made last week by 85-year-old Supreme Court Justice John Paul Stevens was no coincidence. Speaking to the American Bar Association, Justice Stevens expressed dismay over the "serious flaws" in the country's use of the death penalty. He also mentioned that the retirement of Justice Sandra Day O'Connor was a "very, very wrenching experience" for him.

The First Reason Why Staying the Course Is Not Good Enough: Technology Cuts Against the Death Penalty

Readers may ask: Given that Atkins and Roper were significant advances in the Court's death penalty jurisprudence, will it matter very much if a more closely divided Court now does little in this area for a while?

The answer is: Absolutely. Though some progress was made on the unfair application of the death penalty in the last 30 years, more is needed.

Why? Justice Stevens pointed out two of the reasons in his speech to the ABA. And there are many more to add to these; I'll explore just one more, in this column.

First, as the Justice noted, we've increasingly seen death row inmates exonerated as innocent by DNA analysis. Now, granted, in some cases, DNA analysis may be able to prevent such mistakes from ever occurring again - mooting this issue for the future. But in many other cases, the possibility of future DNA analysis may be a compelling reason to keep the defendant alive -- for he may be exonerated in the future when DNA that currently matches neither his DNA, nor anyone else's in the system, is matched to a new arrestee. And of course, this can always happen with fingerprints; because not everyone's prints are in the system, unmatched fingerprints can always be matched to a new arrestee.

Our terrific technology, for these reasons, is a reason to wait until we know the truth - not a reason to kill now and ask questions later. America's technological excellence can and should mean a better quality of justice for its citizens.

The Second Reason Why Staying the Course Is Not Good Enough: "Death-Qualified" Guilt Phase Juries

Second, as Justice Stevens remarked, the Supreme Court allows prosecutors to control the jury in capital cases and seat only "death-qualified" fact-finders. That means that at both the "guilt" and "penalty" phases, judgments are made exclusively by jurors willing to impose the death penalty.

The Supreme Court has ruled, conversely, that the defendant is not allowed, over a prosecutor's obvious objections, to seat jurors who have qualms about capital punishment.

Behavioral science research into jury behavior has consistently found that jurors who are "death-qualified" and likely to impose the death penalty are also more likely to convict the defendant.

That's a violation of the Sixth Amendment's fair trial guarantee, and the Court should say so. At least the "guilt" stage jury - at the very minimum -- should be empanelled without regard to their respective views on capital punishment. To continue the current practice is a gross infringement of fundamental fairness.

The Third Reason Why Staying the Course Is Not Good Enough: The Supreme Court Needs to Further Refine Its Mandates

There is also a third area where progress is needed, though Justice Stevens did not explore it in his speech: The Court sometimes needs to revisit cases in order to give further direction as to how states carry out its rulings. To see why, it's helpful to look more closely at the case of Daryl Atkins - and what happened when it was sent back to Virginia.

Surely that ruling meant that Atkins received more justice in his second "sentencing phase" trial, back in Virginia state court?

Not exactly. On August 5, a Virginia jury delivered its finding in the resentencing of Atkins. It found, once again, that he was not mentally retarded, and thus could and should be executed.

Two possible reasons exist for this finding: the first, discussed above, that jurors are primed for the death penalty. The second has to do with the proof required to prove mental retardation.

Atkins left it to each state to define mental retardation. States have uniformly adopted the American Psychological Association's diagnostic criteria for mental retardation, drawn from The Diagnostic and Statistical Manual of Mental Disorders (DSM). And the current DSM requires that in order to be diagnosed as mentally retarded, a person must currently (1) score below 70 (with 100 being average) on one of the major standard intelligence assessments and (2) have functional impairments that are apparent in daily life, work, and/or educational settings to a degree consistent with the level of retardation diagnosed (there are four levels, ranging from mild to severe). Further, these factors must have been apparent before the individual reached the age of 18 years. The defendant has the burden of proving his mental retardation by a preponderance of evidence.

The difficulty in proving that last requirement is very often what sends mentally-retarded defendants like Atkins to their death. It forces them to prove their impairment is a developmental disorder, and not one that was caused by adult-onset factors like head injuries, accidents, or other processes that cause cognitive decline. Practically speaking, such evidence is hard to come by.

Few defendants will have been tested for IQ while a juvenile. Today, IQ tests are not done on public school students unless the students are being assessed for special education classes - a process that often results from teacher observation of the student over a significant portion of the school year, and from parental involvement. Many, if not most, capital defendants drop out of school or attend school erratically. Fewer grew up in families with the resources to track their educational and social needs.

Moreover, even if defendants were IQ-tested, or tracked into special-education courses as juveniles, records from year ago--20 years in the case of Daryl Atkins-- may not be available. Impressively, Atkins's team found several witnesses, including a schoolteacher who testified that she did not think that Atkins functioned on a "normal" IQ level. But there was no IQ test from his school years.

Finally, even the first requirement, a current IQ below 70, may be hard for genuinely mentally retarded defendants to meet. The Atkins case shows why.

At his first sentencing, Atkins had introduced expert evidence that his IQ score was significantly below 70-- it was 59, bordering between mild and moderate retardation. At that sentencing, the prosecution's expert, who did not administer an IQ test, said that he could tell from talking to him that Atkins was not retarded. The Supreme Court agreed with the Virginia Supreme Court in finding the prosecution expert's opinion "incredulous."

In preparation for his resentencing, Atkins scored between 70 and 74 on IQ tests administered by defense and prosecution experts, a score that put him clearly out of the diagnostic range for mental retardation. Ironically, Atkins's attorney and psychologist noted that his higher scores may be attributable to repeated testing, something they argued in sentencing.

The Unfulfilled Promise of Atkins and Similar Cases

A jury wanting to spare Atkins life--one not primed for death-- could have and maybe would have. But not this York County jury. Although his co-defendant had long ago been given life in prison, Atkins once again was sentenced to die.

Perhaps the Supreme Court needs to revisit Atkins's case, or another capital case involving a mentally retarded defendant, and scrutinize the methods by which states make findings of mental retardation. Maybe the criteria being used are unfair to defendants like Atkins who may be retarded but cannot prove it under existing standards. (The Court has often heard cases involving the same defendant, with different issues, in order to refine its death penalty jurisprudence.)

The Court might mandate that states do what some (those that are not as death-happy as Virginia) have already done, and require that a judge make a finding of mental retardation, not a death-qualified jury. Once a judicial finding is made, the death penalty would not be an option for the prosecution.

In the meantime, the trial judge ordered that Atkins be executed on December 2. His attorneys may try to bring his case before the Court once again, perhaps to challenge some of the issues I have raised.

If so, would a Justice Roberts vote against reviewing Atkins's case yet again? Most likely. It is safe to assume that Daryl Atkins, and defendants in similar positions, will find one less justice willing to grapple with what Justice Stevens called the "serious flaws" in the death penalty.


Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. She is the author, with Douglas Bernstein, of an upper-level textbook in criminal psychology, Criminal Behavior (2nd edition, in press, Erlbaum Publishers).She is the author of The War on Civil Liberties: How Bush and Ashcroft Dismantled the Bill of Rights (Lawrence Hill Books 2004). She maintains a web site devoted to civil liberties issues, Civil Liberties Watch.