On Monday, the US supreme court issued an order in the pending execution of Robert Fratta, a former police officer from Houston who was sentenced to death for the 1994 murder-for-hire of his estranged wife.
Lawyers for the condemned man had petitioned the court in a last-ditch effort to save his life. They argued that critical evidence at his trial given by a key witness had been tainted, as she had been encouraged under hypnosis to change her testimony.
The supreme court’s order was brief and blunt, eviscerating in 23 words any hope of a reprieve: “The application for stay of execution of sentence of death presented to Justice Alito and by him referred to the court is denied.”
No explanation. No ambiguity. No way back.
On Tuesday, Fratta, 65, who had long claimed he was innocent, was injected with lethal drugs in Huntsville, Texas, and pronounced dead at 7.49pm.
The supreme court’s refusal to engage with Fratta’s last petition was more than a one-off. Since the court moved sharply to the right with Donald Trump’s appointment of three new justices, its default position has been to allow executions to proceed even in cases where serious constitutional issues are at stake.
While the new conservative super-majority has attracted outrage for its extreme decisions on abortion, the climate crisis and guns, its increasingly controversial stance on capital punishment has flown largely under the radar.
Yet death row prisoners and their lawyers are having to contend with a grim new reality – the nation’s highest court, which used to offer death row inmates the hope of a final review, has all but closed its doors to their petitions.
“It’s incredible what has become of the court,” said Bernard Harcourt, a death penalty lawyer and law professor at Columbia University. “It’s almost as if the conservative justices have become the nation’s executioners.”
Death penalty experts date the hardening of the court’s approach to 2019 when it effectively sided with the Trump administration in its rush to carry out federal executions for the first time in 16 years. By then, Trump had placed two hardline conservatives – Neil Gorsuch and Brett Kavanaugh – on the bench.
In December 2019, the prominent rightwing justice Samuel Alito issued a decision backed by Gorsuch and Kavanaugh that gave a nod to the Trump administration’s efforts to restart federal executions and called on lower courts to process cases with “appropriate dispatch”. The move was a critical stepping stone to what was to follow: the judicial killing of 13 federal inmates in the twilight of Trump’s presidency.
The move signaled the conservative justices’ growing impatience with federal courts – including their own – intervening in death penalty cases. Since that time the supreme court has declined to act as a brake on executions in every case that has been brought before it, other than where a religious principle was invoked.
In February 2021 the court stepped in to temporarily prevent Alabama executing Willie B Smith who was requesting that his pastor be present with him in the execution chamber (Smith was eventually put to death in October that year). In all other instances, the court’s rightwing majority was content to let the ultimate punishment take its course.
Robert Dunham, executive director of the Death Penalty Information Center (DPIC), has observed what he sees as a profound shift in the conduct of the court. “The supreme court is saying that the federal courts are no longer going to serve as a constitutional backstop in death penalty cases. It’s not just on votes on stays of execution, they are also declining to review very significant cases.”
Dunham said that over the past three years the court had repeatedly ignored case precedent and long-standing judicial practices “to reach what appear to be politically based outcomes in death penalty cases. Its aggressiveness in doing so is part of a broader pattern of decisions that has increasingly caused legal scholars and the public to question the court’s legitimacy.”
The majority’s intransigence is reflected in its refusal to hear cases that raise fundamental constitutional problems, including issues of racial discrimination and intellectual disability. The court voted by 6 to 3 in October to deny reviewing the case of Andre Thomas, a severely mentally ill Black man convicted of murdering his white wife, her white daughter and their biracial son, despite the fact that three of the jurors at his trial expressed hostility towards interracial marriage.
Last November, the court similarly declined to review the case of Kevin Johnson who was executed by Missouri days later. A special prosecutor who had revisited Johnson’s case had called for the death sentence to be revoked on grounds that two white jurors at his initial trial had made racist remarks, and had resisted him being given a life sentence.
“That the supreme court allowed Johnson’s execution to go ahead despite the special prosecutor’s request for the death sentence to be vacated shows that the court is not serious about redressing racial discrimination in capital cases,” Dunham said.
It is forbidden under the US constitution to execute anyone with an intellectual disability. Yet the majority refused last February to consider the case of Rodney Young, who was sentenced to death in Georgia in 2012 for killing his former fiancée’s son.
Young has consistently been identified as intellectually disabled since the age of 10. Georgia is the only state in the US that requires defendants to prove their intellectual disability beyond a reasonable doubt – the highest legal threshold which lawyers say is almost impossible to meet.
The conservative justices have also overturned stays of execution imposed by lower courts. Data compiled by DPIC shows that since Trump’s federal execution spree in late 2019, the supreme court has vacated stays of execution imposed by federal appeals and district courts no fewer than eight times.
In each case, the prisoner went to his or her death before their claims could be thoroughly weighed.
Harcourt expressed dismay at the court’s decision to overturn stays agreed by the 11th circuit court of appeals in two Alabama cases – Alan Miller and Kenneth Smith – who both went on to survive botched execution attempts. “It’s not easy to get a stay of execution from a federal court, and to have it upheld by the 11th circuit,” he said. “That’s rare, that’s hard. For it then to be lifted without explanation or reasoning by the supreme court is simply unconscionable.”
The alacrity with which the rightwing justices appear to be willing to green light executions has attracted increasingly searing rebukes from their liberal-leaning peers. Before he retired last June, Stephen Breyer dissented against the court’s decision to allow the execution to go ahead of Dustin Higgs, one of the 13 federal prisoners killed under Trump.
Breyer characterized the attitude of his conservative fellow justices as “hurry up, hurry up”, and opined that “that is no solution”. He pointed out that the court had overturned a stay of execution imposed by the fourth circuit appeals court even before it had heard oral arguments in the case.
“Given the finality and severity of a death sentence, it is particularly important that judges consider and resolve challenges to an inmate’s conviction and sentence,” he said.
The liberal justice Sonia Sotomayor also vigorously objected to the court’s complicity in what she called the Trump administration’s “expedited spree of executions” of the 13 federal prisoners.
“Over the past six months, this court has repeatedly sidestepped its usual deliberative processes, often at the government’s request, allowing it to push forward with an unprecedented, breakneck timetable of executions … There can be no ‘justice on the fly’ in matters of life and death,” she wrote.
Dunham fears that the outcome of the supreme court’s new hardline approach is that federal courts will no longer act as the overseer of last resort. “If a conviction or death sentence is going to be overturned, except in occasional extraordinarily grievous cases, it’s going to have to happen in state court,” he said.
And that in turn means that prisoners who under the law should be spared the ultimate punishment are likely to go to the death chamber regardless. “If a state court won’t enforce the constitution, and the federal courts won’t intervene, people who were unconstitutionally sentenced to death are going to be executed.”
