In 1972, the Supreme Court ruled that the death penalty violated the Eighth Amendment ban on cruel and unusual punishment because it was used in a discriminatory manner against the poor and minorities. However, in 1976, it ruled that the death penalty per se was not unconstitutional because it could serve the social purposes of retribution and deterrence. In 2002, the Court ruled that decisions must be guided by the particular circumstances of the offender. This can be read as requiring sentencing courts to give due consideration to mitigating evidence such as a prisoner’s background of child abuse and neglect, extreme poverty or mental illness. However, a number of such prisoners have been executed because many of the decisions in lower (state) courts failed to take account of these considerations and simply ignored the Supreme Court’s rulings. Research by Cornell Law School found that, since the death penalty was re-introduced in 1976, one in every seven of the 1,500+ executions carried out to date should not have been, if proper consideration had been given to mitigating factors. The worst offender is Texas.
In the latest Texas case, the Supreme Court ruled that the lawyer of Terence Andrus had failed to present a mountain of mitigating evidence that could have saved his life. He had experienced horrific abuse and neglect at home from both his drug-addict single mother and several of her violent partners; in juvenile detention, suffering from PTSD, he was forcibly treated with massive doses of psychotropic drugs and placed in solitary confinement almost 80 times. The court ruled that his counsel’s representation fell below the constitutional minimum (as guaranteed in the Sixth Amendment) and sent the case back to the Texas Court of Criminal Appeals. Yet, instead of following the Supreme Court’s directive, the Court decided that Andrus’ lawyer had not been incompetent and upheld the death sentence. In a further twist to this story, Terence Andrus appealed again to the Supreme Court but – now made up of more conservative justices – the Court also denied his petition despite three of the judges’ panel writing a scathing rebuke of the decision. Justice Sonia Maria Sotomayor, for example, wrote that that Texas court’s decision is ‘irreconcilable with this court’s prior decision’ and shows ‘disdain for this court’s conclusions’. She went on to write that it is ‘particularly vital that this court act when necessary to protect against defiance of its precedents’ and this was necessary to prevent erosion of ‘confidence in the functioning of the legal system.’ Many now fear the brake on executions by the Supreme Court will be further eroded and states like Texas will carry out even more death penalties.