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The Supreme Court agreed Monday to hear two new death penalty cases, including one that will test the constitutionality of spending decades on death row.(Photo: Jacquelyn Martin, AP)
WASHINGTON — The Supreme Court agreed Monday<span style="color: Red;">*</span>to decide whether executing a condemned prisoner after decades on death row constitutes cruel and unusual punishment,<span style="color: Red;">*</span>bringing the justices ever closer to addressing the overall constitutionality of capital punishment.
As part of the same<span style="color: Red;">*</span>case, the justices also will<span style="color: Red;">*</span>consider how Texas — the state that leads the nation in executions — determines who is mentally competent enough to die.
The Texas case of Bobby James Moore dates back to 1980, when he shot and killed a grocery store clerk during a botched robbery.<span style="color: Red;">*</span>His attorneys now<span style="color: Red;">*</span>say Moore's mental competency was gauged using a decades-old definition of intellectual disability, rather than current medical standards. They also say executing someone after so long on death row constitutes cruel and unusual punishment.
"Prolonged confinement for many decades under sentence of death represents a sword of Damocles perpetually hanging just above the condemned individual’s head," Moore's lead attorney, Clifford Sloan, argued in court papers.
Texas leads the nation in executions with 537 since 1976, nearly five times the total of any other state.
In a separate Texas death penalty case, the justices also agreed to consider whether a condemned inmate can appeal his sentence<span style="color: Red;">*</span>because his original trial attorney allowed<span style="color: Red;">*</span>testimony that he was more likely to be dangerous in the future because he is African American.
The death penalty has divided the court for decades. That was most evident last June, when the<span style="color: Red;">*</span>justices ruled 5-4 that states could continue to use<span style="color: Red;">*</span>a controversial sedative as part of their lethal injection<span style="color: Red;">*</span>protocols. Four justices spoke up —<span style="color: Red;">*</span>two in favor, two against —<span style="color: Red;">*</span>and Justice Stephen Breyer said the court should consider the overall constitutionality of the death penalty.
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Breyer raised four issues —<span style="color: Red;">*</span>the potential for mistakes,<span style="color: Red;">*</span>racial and other disparities, decades-long delays, and increasing numbers of states and counties abandoning capital punishment. Justice Ruth Bader Ginsburg signed on to his dissent.
"Rather than try to patch up the death penalty's legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution," Breyer wrote.
The execution chamber at Oklahoma State Penitentiary in McAlester, Okla.<span style="color: Red;">*</span>(Photo: Sue Ogrocki, AP)
Since then, the court has refused to take on a case testing whether capital punishment remains constitutional. But viewing Breyer's dissent as an invitation, lawyers for death-row inmates continue to send up new cases.
In response to Moore's<span style="color: Red;">*</span>claims,<span style="color: Red;">*</span>Texas notes in court papers<span style="color: Red;">*</span>that lengthy periods of confinement have much to do with defendants' many appeals. "Because any such delay is largely of the defendant’s own making, no court — state or federal — has held that a lengthy stay on death row renders his sentence unconstitutional under the Eighth Amendment," the attorney general's office said.
The case is likely to be scheduled for the fall, when the court still may be shorthanded following the death in February of Justice Antonin Scalia. Depending on how all four of the court's more liberal members vote, the key vote may belong to Justice Anthony Kennedy, who has been<span style="color: Red;">*</span>the court's most outspoken justice on solitary confinement. Last year, he<span style="color: Red;">*</span>told a congressional panel that it "literally drives men mad."
Kennedy also has voted with the liberals on cases<span style="color: Red;">*</span>involving intellectual disability, including a landmark<span style="color: Red;">*</span>2002 Virginia decision<span style="color: Red;">*</span>that ended capital punishment for people with intellectual disabilities<span style="color: Red;">*</span>and a 2014 ruling he wrote that barred states from using only a strict IQ standard to determine a prisoner's competency.
The Texas case could tighten up standards further. Moore's<span style="color: Red;">*</span>attorneys say his mental competency was gauged using a 23-year-old definition of intellectual disability, rather than current medical standards.
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