Brief in Recess: August 22

Editor’s Note: Following this post’s publication Friday afternoon, the Supreme Court issued a press release stating that Justice Ginsburg has completed a three-work course of radiation therapy to treat a tumor on her pancreas. The tumor was found on July 31 after routine blood tests, and a biopsy confirmed it was a malignant, but localized growth. The release noted that Ginsburg “tolerated treatment well,” that there is “no evidence of disease elsewhere in the body,” and that she needs “no further treatment . . . at this time.”


We are just past the halfway point in the Court’s summer recess. Late last night, the Supreme Court denied a Florida inmate’s petition for a stay of execution. While there were no noted dissents, Justice Sotomayor penned a brief opinion respecting the denial. Here’s a quick brief about the case to get you up to speed.


In 1994, Gary Ray Bowles—nicknamed the “I-95 killer”—murdered six people between the states of Maryland and Florida. One of Bowles’ victims was his part-time roommate, Walter Hinton. Bowles without warning dropped a concrete block on Hinton’s head before stuffing toilet paper and a rag into Hinton’s mouth, suffocating him. In 1999, Bowles was convicted of capital murder in a Florida state court and sentenced to death.

Bowles has an IQ of 74, placing him on the precipice of intellectual disability. In Atkins v. Virginia (2002), the Supreme Court held that executing “mentally retarded” prisoners (in today’s lingo, “intellectually disabled” prisoners) violates the Eighth Amendment’s Cruel and Unusual Punishment Clause. The Court did not, however, specify what constitutes an intellectual disability, instead leaving each state to define it on their own terms.

Moving forward after Atkins, Florida enacted a law declaring that prisoners wanting to raise intellectual disability claims must first show that they have an IQ below 70. This law trundled its way to the Supreme Court, where it was struck down in Hall v. Florida (2014). Two years later, the Florida Supreme Court held that Hall applied retroactively—that is, capital inmates whose IQs are north of 70 and who were sentenced to death before Hall may now raise claims of intellectual disability (i.e., Gary Ray Bowles).

Armed with AtkinsHall, and Hall‘s retroactivity, Bowles returned to state court to argue that he cannot be executed because he has an intellectual disability. In a deflating order, however, the Florida Supreme Court dismissed his petition as untimely under state law. Bowles then appealed to the U.S. Supreme Court, petitioning for a writ of certiorari on a number of fronts, a writ of habeas corpus, and (most importantly) a stay of execution so as to allow his counsel time to review the lower court’s dismissal and get their ducks in a row.

But last night, at just past 10:00pm EDT, the Supreme Court denied Bowles’ petitions and declined to stay his execution. While there were no noted dissents, Justice Sotomayor filed a brief, two-page opinion respecting the denial. She applauded the Florida Supreme Court’s 2016 decision to apply Hall retroactively, but she quickly zeroed in on its practice of placing a time limit on an inmate’s ability to raise an intellectual disability claim after Hall‘s retroactivity. The Florida Supreme Court has dismissed inmates’ Atkins petitions when they were not filed before 2004. Since Bowles raised his intellectual disability claim in 2016—twelve years after the deadline—the Florida Supreme Court held it dismissed it as untimely.

Notice the Florida Supreme Court’s paradoxical set of circumstances: Pre-Hall inmates have a right to raise Atkins claims, as long as they do so prior to 2004—even though Hall was decided in 2014 and applied retroactively in 2016. This “Kafkaesque procedural rule,” as Sotomayor calls it, effectively bars any pre-Hall Florida inmates from raising Atkins claims, despite the fact that the Florida Supreme Court said they can. That is utterly bass-ackwards. This procedure also butts heads with another Florida rule, one that requires an inmate’s counsel to have a “good faith” belief that the inmate has an intellectual disability before raising an Atkins claim.

If a case presented appropriate questions under the Court’s decision in Montgomery v. Louisiana (2016), Sotomayor “would be prepared to revisit a challenge to Florida’s procedural rule.” But Bowles’ case did not do that here, instead focusing on the Eighth Amendment. Therefore, Sotomayor “does not disagree” with the denial of Bowles’ petitions.

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