Last June, Supreme Court Justice Stephen Breyer suggested that the death penalty might be close to its ultimate demise, reported The Marshall Project. “Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote in a dissent to Glossip v. Gross, to which Justice Ruth Bader Ginsburg added her name, “I would ask for a full briefing on a more basic question: whether the death penalty violates the Constitution.”
Attorneys for death-row inmates, generally a tight-knit group, immediately started talking about what to do next. While some urged caution — arguing that if the court upholds capital punishment it could set their cause back indefinitely — others sensed a rare opportunity. The most outspoken advocates for a more aggressive strategy have been the 8th Amendment Project, a group of lawyers who oppose the death penalty and are tracking cases that might allow the court to strike it down for good.
Today, the high court will discuss whether to hear a challenge to the death sentence of a Pennsylvania woman named Shonda Walter. Her case is one of several posed as direct responses to Breyer’s invitation to attack the death penalty head-on.
There is no way to know whether the justices will take any of these cases; for the court to take a case, four justices must agree, and aside from Breyer and Ginsburg, no other justices have indicated their views on whether to take such a challenge. If they do take a case, there is also no way of knowing which one they will position as the next potential landmark, the next Brown or Miranda or Roe. But each of those historic cases was preceded by numerous appeals of the sort that are now reaching the court. Death penalty abolitionists are braiding the details of these cases to the legal arguments they believe have the best shot at swaying the court.
Shonda Walter, whose case will be discussed in a conference of the judges on Friday, was convicted in 2005 of killing 83-year-old James Sementelli with a hatchet in the small, central Pennsylvania town of Lock Haven. She was 24 years old. Walter’s current defense team argues that her trial was unfair in part because her trial lawyer openly conceded her guilt to the jury (she tried to have a new lawyer appointed, but the judge refused). In an appeal, the trial lawyer made arguments that one judge described as “unintelligible.” Her new lawyers argue that Walter “emerged from an arbitrary process which fails to limit the death penalty to the worst offenders.”
Several independent groups have weighed in on Walter’s case with briefs that aim to tie it to broad arguments over the death penalty’s fairness as it is practiced around the country. In one, a group of social scientists declare that an “extensive body of academic literature” shows prosecutors pursue the death penalty disproportionately against blacks (Walter is black) and discriminate to keep blacks off capital juries. A brief by the group, Witness to Innocence, argues that innocent people are often sent to death row (and Walter’s own petition notes that the kind of bad lawyering that got her to death row is present in many of these wrongful convictions). A third brief, by several groups of French, British, and Irish lawyers, urges the court to follow the lead of other Western countries that have abolished the death penalty (they note that prior U.S. Supreme Court decisions limiting the death penalty’s use have cited foreign law).
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