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Supreme Court turns away closely watched criminal justice disputes

The justices mostly agreed the appeals at issue could not be heard, but members of the court’s liberal wing offered warnings about a lack of judicial oversight for some high-profile criminal justice issues.

WASHINGTON (CN) — Liberal members of the U.S. Supreme Court used the opening of the 2021 session Monday to push back on the denial of appeals involving the death penalty, qualified immunity and sentencing enhancements.

In an opinion separate from the high court's first orders list of the new term, Justices Stephen Breyer highlighted the case of Carl Wayne Buntion, a 77-year-old man convicted of murder in Texas in 1991 and sentenced to death. He’s been in solitary confinement for most of the last 30 years.

This unjust confinement, Buntion’s age and the “uncertainty of waiting in prison under the threat of execution,” Breyer wrote, shows the judiciary needs to act.

“His lengthy confinement, and the confinement of others like him, calls into question the constitutionality of the death penalty and reinforces the need for this court, or other courts, to consider that question in an appropriate case,” the Bill Clinton appointee said. 

However, Breyer acknowledged there are "procedural obstacles that make it difficult for the court to grant certiorari in Buntion’s case."

In another opinion, Justice Sonia Sotomayor wrote to express concern at the Eighth Circuit’s reversal of an Arkansas federal court ruling that recognized issues in the death penalty trial of Mickey Thomas. 

While the trial court accepted Thomas’ argument that his original attorney failed to properly investigate and present mitigating evidence during his trial, the St. Louis-based appeals court reversed on procedural grounds without rebuttal from the defendant, much to Sotomayor's dismay. 

Like Breyer in the Buntion case, Sotomayor acknowledged procedural issues prevented the high court from hearing the appeal, but she still criticized the appellate court for not giving Thomas the chance to argue against a procedural denial. 

“A court of appeals should at a minimum afford a capital petitioner the opportunity to respond and be heard before adopting an argument on the state’s behalf,” the Barack Obama appointee wrote. 

Meanwhile, Arkansas Attorney General Leslie Rutledge hailed the high court for denying the appeal.

“After more than 16 years following [Thomas'] conviction for capital murder, I look forward to seeking justice for the families of Mona Shelton and Donna Cary,” Rutledge said in a statement.  

Sotomayor also offered a full-throated dissent in a qualified immunity dispute stemming from the shooting death of Willie Gibbons at the hands of a New Jersey state trooper.

She said the facts — including Gibbons' history of mental health issues and him holding a gun to his own head moments before he was shot during the brief encounter with police — should have created enough grounds to at least allow for some discovery before granting the police officer qualified immunity.

The district court found as much, but the Third Circuit “took a different view of the facts,” Sotomayor wrote. 

“Qualified immunity properly shields police officers from liability when they act reasonably to protect themselves and the public,” she wrote in the two-page dissent. “It does not protect an officer who inflicts deadly force on a person who is only a threat to himself.”

A spokesperson from the New Jersey Attorney General’s Office declined to comment on the dissent or the court's denial of certiorari.

In a fourth opinion released separate from the order list, Sotomayor also hit the majority for failing to take up a Tennessee-based Armed Career Criminal Act dispute that could clarify whether “generic burglary” qualifies as an intentional crime under the sentence-enhancing law’s prerequisites.

While she respected the high court's denial of Samuel Gann’s appeal of his 15-year sentence for being a felon in possession of a firearm, Sotomayor said she hopes the Sixth Circuit will give the issue "full and fair consideration in a future case” instead of rejecting the appeal as it did in Gann's case.

Notably, there were no new grants of certiorari in Monday's order list. But criminal justice watchers are already weighing in on what’s sure to be a significant Supreme Court term.

Abraham Bonowitz, executive director of Death Penalty Action, was disappointed at the denial of Buntion's death penalty appeal, but he suggested the high court’s hard shift in favor of capital punishment will backfire. 

“People hear about these things and say ‘that’s messed up’ and they realize this is government run amok,” he said in a phone interview as he was waiting to board a plane to Oklahoma, where he will attend the clemency hearing for a death row inmate who experienced extensive child abuse while growing up in the state’s child welfare system. 

Between the poorly defined standard for executing those with reduced mental capacity and the number of former President Donald Trump’s conservative judicial appointees reversing lower court rulings in favor of those on death row, Bonowitz said pro-death penalty efforts have “greased the rails to the execution chamber.” 

“Every time they execute someone with valid concerns, people wake up,” he said.

David Safavian, director of the Nolan Center for Justice at the American Conservative Union Foundation, similarly expressed some concerns about the conservative majority’s handling of the cases the liberal justices offered comment on.

“Breyer is rightfully questioning the delays and we’d like to take a step back and question whether it creates a deterrent or not,” he said, noting such delays are emblematic of an already problematic system under which about 12% of capital convictions get reversed in the wake of DNA evidence.

The member of the conservative criminal justice reform group was also a bit concerned about the failed qualified immunity appeal, pointing to the 11 similar rejected appeals from last year’s session.

“No new case law is made because so many cases are swept up by other qualified immunity claims,” he lamented, before hoping the Supreme Court will take up a similar case in the future. 

The denial of the sentencing enhancement case was similarly unsurprising to Safavian, but he noted the justices heard another Armed Career Criminal Act appeal, Wooden v. U.S., on Monday. In that dispute, James Wooden was convicted in 1997 of 10 counts of burglary after breaking into 10 storage units in a single criminal act. Eighteen years later, after police found him in possession of a firearm, he’s facing an enhanced sentence despite the earlier offenses being linked to that single incident.

Safavian said he had little love for the ACCA as Congress wrote it and argued its frequent appearance in appeals at the Supreme Court and lower courts speaks to bigger issues with the law. 

“Congress tried to be clever, creating a repeat offender statute that leverages state law, but state law isn’t precise enough for the enhancement,” he said, noting what's considered a violent crime varies from state to state.

The opening day of the Supreme Court's new term was a busy one, with the justices hearing arguments in two cases after releasing the orders Monday morning.

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