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Sentencing Law and Policy
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Another SCOTUS capital case grant that has me wondering

By Douglas Berman

As detailed here at SCOTUSblog, the Supreme Court today added four new cases to its docket in the current Term, “including a test of federal courts’ authority to overturn a state trial judge’s decision to remove a juror from a capital trial because of that juror’s views about capital punishment.”  Here’s Lyle Denniston’s description of new capital case, Uttecht v. Brown (06-413):

During jury selection in this Washington State murder case, the trial judge dismissed a juror because of equivocal statements about the death penalty.  After the Washington Supreme Court upheld that dismissal, the case went to federal habeas court, leading to a Ninth Circuit ruling that barring a juror is allowed only if it is clear that that juror would not follow the law.

Regular readers know that I am aggravated that the Supreme Court spends so much time on death penalty cases (especially now that only a few states in the entire nation have a truly functioning death penalty).  Brown adds to my aggravation, in part because it is not clear what broader jurisprudential issues are at stake to justify its place on the Supreme Court’s incredibly shrinking docket.  So, the grant in Brown has me wondering….

1.  Has SCOTUS essentially decided that, in all capital cases, it will be in the business of error correction (at least when a federal court appears to have wrongfully overturned a state death sentence)?

2.  Especially if SCOTUS plans to be in the business of capital error correction, what’s happened to the device of summary reversal?  In Brown, notably, the petition requests a summary reversal.  Though I’ve not checked the data, I think we’ve seen fewer summary reversals this Term along with fewer cert grants.

3.  Even if the Court cannot resist the lure of capital cases, why not tackle cases with broad impact like the standards for lethal injection or the procedures for implementing Atkins?

4.  Does the Court realize that, because only a few states in the entire nation have a truly functioning death penalty, its ultimate decision in Brown, whatever it is, likely won’t impact more than a handful of cases in a handful of states?

5.  Is the cert grant in Brown yet more evidence, along with all the other recent docket struggles, that it is time for Chief Justice Roberts to drain the cert pool and start seriously exploring other case selection protocols?