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Wednesday, Sep. 04, 2002

Last week, the U.S. Supreme Court refused to stay the execution of Toronto M. Patterson, a Texas man who was convicted and sentenced to death for a crime he committed at the age of seventeen. Three Justices--John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer--dissented. They believed the Court should have delayed Patterson's execution in order to consider whether the death penalty can be constitutionally imposed for a crime committed by a perpetrator under the age of eighteen.

Should the full Court eventually take up that issue and invalidate the juvenile death penalty, Patterson will not benefit. Texas put him to death shortly after the Court's ruling.

Patterson's case thus highlights an unseemly oddity of our system of capital punishment. We permit the death penalty to be carried out, even when a third of the judges on the highest court in the land think that the petitioner has raised a sufficiently plausible claim to warrant a hearing.

A close look at Patterson's case also reveals a second, quite different, oddity: The three Justices who thought Patterson's youth at the time of his crime might warrant invalidation of his death sentence said nearly exactly the opposite a little more than two months earlier.

Toronto Patterson may or may not have deserved to die. Either way, however, his case should have been handled with greater care by the Supreme Court.

Getting a Case to the Supreme Court: The Rule of Four and the Rule of Five

With a small number of exceptions, the Supreme Court has control over its own docket. A party who loses his case in federal district court has an automatic right of appeal to the federal circuit court, but if he loses there or in a state high court, the only way he can have his case heard by the U.S. Supreme Court is to file a successful petition for a writ of certiorari--an order granting review. In only a tiny fraction of cases is review granted by the Court, which hears fewer than one hundred cases per year.

It takes only four votes to grant a petition for a writ of certiorari; a five-Justice majority of the nine Justices is not required. In most other matters, however, the Supreme Court operates by majority rule. As is well known, for instance, it takes at least five votes to win a case.

The "rule of four" that applies to certiorari petitions and the "rule of five" that applies to other Supreme Court actions have sometimes come into conflict. Suppose, for example, that four Justices want to review a lower court decision in a capital case. Under the rule of four, the petition for a writ of certiorari will be granted. However, unless a fifth Justice joins the four, no stay of execution will issue.

One of the five Justices who voted against hearing the case can usually be persuaded to switch sides and grant a stay in order to preserve jurisdiction, in deference to his or her colleagues. But that course has not always been followed.

The result when no Justice is willing to switch sides is that even though the case is sufficiently important and controversial to warrant review, the state is free to execute the petitioner before the Court has a chance to hear it. In the end, the case on which the Court granted review is dismissed as moot because one party--the state--has put the other party to death.

Not a Court of Error--Except in Capital Cases

That didn't quite happen in Patterson. There were only three votes to grant the certiorari petition and the stay of execution. Still, one might legitimately question a judicial system that permits people to be executed when--as in Patterson's case--a third of the members of the Supreme Court think that there is a substantial constitutional problem.

The core of the difficulty is that the Supreme Court's rules governing case selection are designed to enable it to function as a body whose job is to resolve legal questions of national importance, not to correct individual injustices. The Court is not, as lawyers like to say, "a court of error." If a lower court commits a factual or legal error, the Supreme Court will not grant a writ of certiorari simply to review that error. More must be at stake.

Except that in capital cases, the Supreme Court is--or should be--a court of error. When a person is sentenced to death, he appeals--first within the state system if, as in most capital cases, that is where he was convicted, and then by filing a habeas corpus petition in federal court. If the death sentence is upheld, the state will set an execution date. As that date approaches, the condemned's lawyers file last-minute petitions, seeking clemency from the governor or parole board, and ultimately returning to court. When all other avenues of appeal have been exhausted, the case comes to the United States Supreme Court. Only when the Supreme Court denies relief one final time does the call go out to the death chamber to throw the switch.

The Justices are well aware that their failure to stop an execution of dubious legality, in a real sense, causes that execution to occur. For that reason, most of them understand themselves to have a legal and moral duty to act like a court of error in death penalty cases. And while the official Supreme Court rules do not treat capital cases substantially differently from other cases, the Justices' practices reveal that they think of themselves as performing a different role in such cases.

For instance, on the night of a scheduled execution, they leave instructions with their law clerks about how to reach them so that they can learn of any last-minute developments. They often decide whether to grant or deny a stay of execution in the wee hours of the morning. The level of attention the Justices pay to these cases reveals that the Court is not just looking for issues of national importance to resolve; it is also trying to ensure that the particular capital defendant does not suffer an injustice.

Yet devices like the rule of four and the rule of five do not permit the Court to treat capital cases all that differently from other cases. Nor does the Court have the time or resources to review every aspect of every capital case in the country in which a constitutional error has arguably occurred--meaning that even among death cases, the Justices must focus on the gravest errors. Thus, despite their commendable efforts to act like a court of error, they sometimes permit individual capital cases to fall through the cracks.

The Curious Reasoning in the Patterson Case

Was Patterson one of the cases that fell through the cracks? Perhaps not. Instead, maybe the three Justices who would have granted the petition and the stay were unable to attract additional votes because the reason they provided for their dissent contradicted what those very same Justices had said only a few months earlier.

To see why this might be so, a bit of background is necessary.

In June of this year, the Supreme Court decided Atkins v. Virginia. By a 6-3 margin, in that case the Court ruled that execution of the mentally retarded is cruel and unusual punishment because it violates the "evolving standards of decency that mark the progress of a maturing society." Although the Court pointed to a number of factors in support of this conclusion, it placed principal reliance on a legislative trend towards abolition of capital punishment for the mentally retarded since the Court's 1989 decision in Penry v. Lynaugh, which permitted the practice.

To underscore the reality of the trend toward abolition of execution of the mentally retarded, Justice Stevens, the author of the Atkins opinion, drew a contrast with developments regarding execution of persons who committed their crimes while under the age of eighteen. In Stanford v. Kentucky, Justice Stevens wrote, the Court had "held that there was no national consensus prohibiting the execution of juvenile offenders over age 15." The contrast between Stanford and Atkins, Stevens continued, "is telling. Although we decided Stanford on the same day as Penry, apparently only two state legislatures have raised the threshold age for imposition of the death penalty."

In short, Justice Stevens argued in his Atkins opinion that a consensus had emerged against execution of the mentally retarded but not against youthful offenders. And yet, last week, in his dissent in Patterson, Justice Stevens wrote that now there is an "apparent consensus . . . among the States and in the international community against the execution of a capital sentence imposed on a juvenile offender." He seemed, in other words, to directly contradict himself.

Justice Ginsburg, writing for herself and Justice Breyer in dissent to the denial of the stay in Patterson, agreed with Justice Stevens's new view that a consensus against executing minors was, after all, emerging. The Atkins decision, she wrote, "made it tenable for a petitioner to urge reconsideration of Stanford v. Kentucky."

There was no national consensus in June, but now--despite no intervening legislative changes--there is? How did Atkins--which drew a contrast between mental retardation and youth--make Patterson's claim more rather than less tenable than it otherwise would have been? What is going on here?

Blame the Clerks or the Justices?

Perhaps the three dissenting Justices in Patterson simply forgot what they had said about youthful offenders in Atkins. The point only appeared in a footnote, after all.

Moreover, the Court is not formally in session now, so the Justices may have had to rely to a greater extent than usual on their brand new clerks. Last term's clerks--the ones who would have remembered Atkins most clearly--departed over the course of the summer. One would hope this term's clerks would have read last term's cases, but again, the point was in a footnote they might have missed.

Even more disturbing than "the clerks did it" theory, however, is the possibility that Justices Stevens, Ginsburg, and Breyer never really did care about a national consensus in the first place. Maybe they think that the international consensus is a sufficient basis for challenging the juvenile death penalty. Or maybe they believe, on subjective moral grounds, that executing youthful offenders is simply wrong.

Either of those positions would be defensible. There really is an international consensus. Other than the United States, only Iran, Nigeria, Pakistan, and Saudi Arabia execute juveniles. Likewise, if there is any provision of the Constitution that would appear to license judges to look to their own sense of morality, it would seem to be the open-ended prohibition on "cruel and unusual punishments."

But if the three dissenting Justices are motivated by factors other than their estimate of a national consensus, they should not pretend otherwise. Doing so--as with the pretense that they do not sit as a court of error in capital cases--only undermines the Court's credibility and disserves justice.

Michael C. Dorf is Professor of Law at Columbia University.

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