SCOTUS takes up Alabama case concerning competency to be executed while again turning away post-Hurst capital challenges
The US Supreme Court issued this order list this morning, and capital punishment followers will find a few SCOTUS cert decisions of note. First, the Court granted certiorari in Madison v. Alabama, No. 17-7505, and the docket number here is quite important because Vernon Madison had two notable cert petitions pending: Madison v. Alabama, 17-7505, which was granted raises asked whether Alabama may "execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense?"; Madison v. Alabama, 17-7535, which was denied raised the issue of whether Alabama could move forward with the execution of a defendant whose death sentence result from the state's now-abolished practice of judicial override.
The death sentencing procedural issue that the Supreme Court decided not to take up in Vernon Madison's case is, of course, yet another off-shoot of what I have long called the "post-Hurst hydra." After the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe the multi-headed, snake-like litigation destined to develop in various ways in various courts as state and federal judges tried to make sense of just what Hurst must mean for past, present and future capital cases. I am further reminded of that hydra because today's SCOTUS order list concluded with two short dissents from the denial of certiorari authored by Justices Breyer and Sotomayor in two Florida capital cases. Justice Sotomayor's dissent is a bit longer and joined by Justice Ginsburg and includes these passages:
Dale Middleton and Randy Tundidor were sentenced to death under a Florida capital sentencing scheme that this Court has since declared unconstitutional. See Hurst v. Florida, 577 U. S. ___ (2016). Relying on the unanimity of the juries’ recommendations of death, the Florida Supreme Court post-Hurst declined to disturb the petitioners’ death sentences, reasoning that the unanimity ensured that jurors had made the necessary findings of fact under Hurst. By doing so, the Florida Supreme Court effectively transformed the pre-Hurst jury recommendations into binding findings of fact with respect to the petitioners’ death sentences.
Having so concluded, the Florida Supreme Court continually refuses to grapple with the Eighth Amendment implications of that holding. If those then-advisory jury findings are now binding and sufficient to satisfy Hurst, petitioners contend that their sentences violate the Eighth Amendment because the jury instructions in their cases repeatedly emphasized the nonbinding, advisory nature of the jurors’ role and that the judge was the final decisionmaker. This Court has unequivocally held “that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell v. Mississippi, 472 U. S. 320, 328–329 (1985).
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