Justice Sotomayor’s Death Penalty Dissent

This week is a quiet one at the Supreme Court. The justices will not hear any oral arguments and yesterday they released an Order List that included no new cases for the term’s docket. There was, however, one thing notable about this otherwise routine Order List: Justice Sotomayor, joined by Justice Ginsburg, issued a relatively rare dissent from a denial of certiorari.

Justices Sotomayor and Ginsburg took issue with the Court’s refusal to grant review in Elmore v. Holbrook, a capital case that came out of the 9th Circuit and had been relisted for conference since April 22, 2016. The case involves petitioner Clark Elmore who, after pleading guilty to charges of rape and aggravated murder, was sentenced to death. Elmore’s appointed counsel advised his client to plead guilty to the crimes in order to increase his chance at receiving a life sentence and then presented only a limited defense at sentencing. He chose to not pursue other mitigating factors in order to avoid potential rebuttals, and failed to object when Elmore was first introduced to his jury wearing shackles. The Washington Supreme Court and the lower federal courts all refused Elmore’s post-conviction appeal on the grounds of inadequate counsel.

“The Constitution demands more” than the defense Elmore’s attorney provided,. Justice Sotomayor wrote in her fifteen-page dissent. “His lawyer acted deficiently in choosing a mitigation strategy without fully exploring the alternatives and in failing to investigate the mitigation strategy that he did choose to present.” She wrote that she believes the Court should grant certiorari and reverse Elmore’s death sentence because his Sixth Amendment right to effective assistance of counsel had been violated.

In concluding her dissent, Justice Sotomayor noted the chorus of voices who believe the death penalty itself may be constitutionally infirm–including her colleague Justice Breyer in a 2015 opinion joined by Justice Ginsburg (but not Justice Sotomayor). She made clear that this case does not raise this fundamental issue, but then added that she believes “that whatever flaws do exist in our system can be tolerated only by remaining faithful to our Constitution’s procedural safeguards.”

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