The current U. S. Supreme Court term is barely a month old, but the justices have already heard argument in four death penalty cases — and will hear a fifth on Monday — making the term the most important for capital punishment issues in decades, legal experts say.
The justices themselves fueled speculation near the end of last term that the court might finally address the death penalty’s viability under the Eighth Amendment, with Justice Stephen Breyer (joined by Justice Ruth Bader Ginsburg) opining in Glossip v. Gross that it was “highly likely that the death penalty violates the Eighth Amendment.” And Justice Antonin Scalia last week told an audience at the University of Minnesota Law School that he “wouldn’t be surprised if the Supreme Court eventually strikes down capital punishment.”
That question has not yet been squarely put before the high court, but the term is young and with five death penalty cases already under their collective belt, the justices still have plenty of time to take it on.
Monday’s case, Foster v. Chatman, raises an issue well known to North Carolinians — racial bias in juror selection in capital cases — and comes at a time when the state Supreme Court itself is grappling with cases arising under the now-repealed Racial Justice Act.
As described by Rory Little at SCOTUSblog:
Foster, an eighteen-year-old African American at the time, was convicted of killing an elderly white woman during a burglary in Georgia. During jury selection, the prosecutor struck all four black potential jurors, and Foster was convicted and sentenced by an all-white jury. When an objection was raised under the Court’s 1986 decision in Batson v. Kentucky, the prosecutor offered “race neutral” reasons for striking the black jurors, while protecting his file from discovery.
Some nineteen years later, the prosecutor’s jury selection notes — produced pursuant to an Open Records Act request — revealed a direct targeting of black jurors, but state courts refused to entertain Foster’s request for relief.