The Supreme Court announced this morning they will not to hear arguments in Walter v. Pennsylvania, a case challenging the death penalty on Eighth Amendment grounds.
Attorneys for Shonda Walter, the last woman on Pennsylvania's death row, filed a writ petition with the court in November. Walter was convicted of murder and sentenced to death in 2005 after a trial and sentencing laden with problems. Her lawyers were ineffective and the state relied in large part on testimony from witnesses that were suspected to be involved but received significantly lesser sentences for testifying against Walter.
In the writ petition filed by Walter’s attorneys they argued that not only her conviction but all death row convictions violate the Eighth Amendment, which says, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The conclusion that the death penalty, in all cases, violates the Eighth Amendment is compelled for two reasons. First, our standards of decency have evolved to the point where the institution is no longer constitutionally sustainable. A number of objective indices show that this consensus has now been reached. Since 2004, seven states have legislatively or judicially rejected the death penalty, four are currently under a moratorium, and in several more its use has been negligible over the last ten years. New death sentences have consistently trended downward, as have executions. The result is that the death penalty is now truly infrequent in practice, and confined largely to just a handful of states.
Second, the assumptions underlying this Court’s reinstitution of the death penalty after [Furman vs. Georgia] have proved wrong, flawed, or illusory. Heightened protections have not achieved the reliability needed to eliminate wrongful executions, the [Gregg v. Georgia] guided discretion formula has not significantly limited arbitrariness, and racial discrimination remains pervasive.
In 1972’s Furman v. Georgia found that the death penalty did violate the Eighth Amendment, but on procedural due process grounds. In other words, the actual execution wasn't the problem, it was the way it was being carried out. The ruling effectively ended capital punishment in America for a short time. But, in 1976, Gregg v. Georgia brought it back again, upholding Georgia's reformed death penalty standards as constitutional in 1976. Gregg said the death penalty didn’t violate the Eighth amendment as there were some rules applied: First, there had to be objective and "particularized" criteria for eligible crimes, and second, defendants should have the opportunity to present mitigation evidence in their defense. These factors were supposed to make the punishment "suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action."
Walter and her attorneys, though, believe the death penalty remains unconstitutional. Petitioners argued against the punishment itself—raising concerns about the controversial methods of execution, and noting the national and international movement toward abolition. They also, of course, raised procedural objections—the risk of executing someone wrongfully convicted, the lack of consistency even post-Furman and Gregg, and the persistent racial gap in executions. From the filed writ petition:
There is no dearth of scholarship on race effects in the administration of the death penalty. Some of the most rigorous social science research of the last few decades has been devoted to examining how well the system respects our notions of equal justice. Virtually all tell the same story: White lives matter most. These studies consistently reveal, even after accounting for legitimate, non-racial, case characteristics, that offenders who kill whites have a significantly higher chance of receiving a death sentence—and the highest probability of all is reserved for blacks who kill whites.
Walter’s legal team aren’t the only ones who thinks capital punishment is a constitutional violation across the board. Just last week, Justice Breyer objected to the court's denial of Christopher Brook's application for stay of execution in Alabama. Brooks was executed on Thursday night.
From Buzzfeed:
Breyer objected — noting in a short, two-paragraph statement that he would have granted the request.
Breyer went further, though, stating that the treatment of Brooks’s case "underscores the need to reconsider the validity of capital punishment under the Eighth Amendment."
Attorneys in Walter v. Pennsylvania agreed, stating in their petition:
The death penalty has outlived any conceivable use. It is imperfect in application, haphazard in result, and of negligible utility. The arc of historical events and trends since Gregg leaves but one conclusion: Our sensibilities regarding this severe punishment have evolved to the point where it is no longer constitutionally sustainable.
However, the court has decided not to answer that question in this case. Breyer will have to wait and for now, the death penalty lives on. James Freeman, Texas inmate, is scheduled to die on Wednesday of this week.