In Death Penalty Cases, Sotomayor Is Alone in ‘Bearing Witness’

Instead, she looked forward. “In an appropriate case,” she wrote, “this issue could warrant the court’s review.”

She made a similar point in August, criticizing a “Kafkaesque procedural rule” in Florida. The rule, she wrote, served to thwart a 2014 Supreme Court decision, Hall v. Florida, that struck down as too rigid the I.Q. score cutoff Florida used to decide which intellectually disabled individuals must be spared the death penalty.

Justice Sotomayor wrote that the state’s highest court had performed a strange two-step in enforcing the Hall decision.

“With one hand, the Florida Supreme Court recognized that such intellectually disabled prisoners sentenced before Hall have a right to challenge their executions,” she wrote. “With the other hand, however, the Florida Supreme Court has turned away prisoners seeking to vindicate this retroactive constitutional rule for the first time, by requiring them to have brought their Hall claims in 2004 — a full decade before Hall itself was decided.”

Here, too, though, she stopped short of dissenting. “In an appropriate case, however,” she wrote, “I would be prepared to revisit a challenge to Florida’s procedural rule.”

In other capital cases, Justice Sotomayor dissented outright, again writing only for herself. In May, she said the court should have heard a case from Tennessee in which condemned prisoners sought to show that the chemicals the state aimed to use in their executions would cause excruciating pain.

The inmates faced two hurdles, Justice Sotomayor wrote. First, the Supreme Court had required them to propose a less painful alternative method of execution. This was, she wrote, “perverse.” Second, she wrote, there was “the added perversity of the secrecy laws that Tennessee imposes on death-row prisoners,” denying them access to information that could help them make their cases.


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