In Death Penalty Cases, Sotomayor Is Alone in 'Bearing Witness'

WASHINGTON -- The terse Supreme Court rulings arrived in the evening, in time to allow an execution later that night. There were three rulings in the last month or so, at 5:52 p.m., at 7:01 p.m. and at 10:13 p.m. They were bland and formulaic, saying only that the court had denied an "application for stay of execution of sentence of death." The inmates who had filed the applications were put to death within hours. In all three cases, only one member of the court bothered to write an opinion, to give a hint about what was at stake. That was Justice Sonia Sotomayor, who maintains a sort of vigil in the capital cases other justices treat as routine. She described shortcomings in the trials the inmates had received and oddities in the laws the courts below had applied. "She's bearing witness," said Douglas A. Berman, a law professor at Ohio State University. On Wednesday, for instance, she wrote about the trial of Robert Sparks, in Texas in 2008. One of the bailiffs had worn a black tie embroidered with a white syringe, later admitting that he wanted to express his support for the death penalty. "That an officer of the court conducted himself in such a manner is deeply troubling," Sotomayor wrote. But, with seeming reluctance, she said the Supreme Court was right not to intervene in the case. A lower court considering a challenge to Sparks' death sentence, she wrote, "did not find sufficient evidence to conclude that the jury saw the tie." Still, Sotomayor said the trial judge should have done more. "Presiding judges aware of this kind of behavior would see fit to intervene in future cases by completely removing the offending item or court officer from the jury's presence," she wrote. "Only this will ensure the 'very dignity and decorum of judicial proceedings' they are entrusted to uphold," she wrote, quoting an earlier decision. "The stakes -- life in this case, liberty in many others -- are too high to allow anything less." There is a precedent for Sotomayor's attention to capital cases, said Jordan M. Steiker, a law professor at the University of Texas and an author, with Carol S. Steiker, of "Courting Death: The Supreme Court and Capital Punishment." "Justice Sotomayor is carrying forward the tradition of Justices Brennan and Marshall," Steiker said, referring to Justices William J. Brennan Jr. and Thurgood Marshall, who came to adopt a practice of dissenting in every death penalty case. Earlier in September, Sotomayor indicated that the 5th Circuit U.S. Court of Appeals, in New Orleans, had read a Supreme Court precedent too narrowly in rejecting the possibility that some challenges to death sentences could ever be reopened in light of changes in the law. But she said the appeals court's decision had not turned on that point and she did not dissent from the Supreme Court's decision not to intervene. Instead, she looked forward. "In an appropriate case," she wrote, "this issue could warrant the court's review." She made a similar point in August, criticizing a "Kafkaesque procedural rule" in Florida. The rule, she wrote, served to thwart a 2014 Supreme Court decision, Hall v. Florida, that struck down as too rigid the IQ score cutoff Florida used to decide which intellectually disabled individuals must be spared the death penalty. Sotomayor wrote that the state's highest court had performed a strange two-step in enforcing the Hall decision. "With one hand, the Florida Supreme Court recognized that such intellectually disabled prisoners sentenced before Hall have a right to challenge their executions," she wrote. "With the other hand, however, the Florida Supreme Court has turned away prisoners seeking to vindicate this retroactive constitutional rule for the first time, by requiring them to have brought their Hall claims in 2004 -- a full decade before Hall itself was decided." Here, too, though, she stopped short of dissenting. "In an appropriate case, however," she wrote, "I would be prepared to revisit a challenge to Florida's procedural rule." In other capital cases, Sotomayor dissented outright, again writing only for herself. In May, she said the court should have heard a case from Tennessee in which condemned prisoners sought to show that the chemicals the state aimed to use in their executions would cause excruciating pain. The inmates faced two hurdles, Sotomayor wrote. First, the Supreme Court had required them to propose a less painful alternative method of execution. This was, she wrote, "perverse." Second, she wrote, there was "the added perversity of the secrecy laws that Tennessee imposes on death-row prisoners," denying them access to information that could help them make their cases. "Because I continue to believe that the alternative method requirement is fundamentally wrong -- and particularly so when compounded by secrecy laws like Tennessee's -- I dissent," she wrote. Sotomayor's sustained attention to the capital justice system, Steiker said, was part of an effort to speak to many audiences. "She recognizes the institutional limits of the court in correcting every injustice or every misreading of federal law, yet she wants to communicate the wrongness of those injustices and misreadings despite the court's inability to intervene," Steiker said. "Justice Sotomayor is speaking to institutional actors -- judges, prosecutors, defense lawyers -- to make clear that the court, or least some portion of it, is keenly aware of problems that it is not presently able to correct."This article originally appeared in The New York Times.(C) 2019 The New York Times Company