Published on: Tuesday, January 8, 2019

Justice Sotomayor, joined by Justice Ginsburg and Kagan, dissented from the denial of certiorari in a Georgia death penalty case.  See Lance v. Sellers, No. 17-1382 (Jan. 7, 2018) (cert. denied).  Here are the opening and closing paragraphs of the Justices’ 11-page dissent:

Before deciding that petitioner Donnie Cleveland Lance should die as punishment for two murders he committed, a jury heard no evidence whatsoever to counterbalance the State’s case for the death penalty. Lance’s counsel bore responsibility for the one-sidedness of the sentencing proceedings; he inexcusably failed even to look into, much less to put on, a case for sparing Lance’s life. And we have since learned that Lance suffers from significant cognitive impairments that the jury could have weighed in assessing his moral culpability. In other words, there is a meaningful case to be made for sparing Lance’s life, but— because he lacked access to constitutionally adequate counsel—he has never had a chance to present it.

The Georgia Supreme Court concluded that this state of affairs was constitutionally tolerable because, in its view, Lance’s untold story stood no chance of persuading even a single juror to favor life without parole over a death sentence. The U. S. Court of Appeals for the Eleventh Circuit held that its conclusion was not unreasonable. I cannot agree. Our precedents clearly establish that Lance was prejudiced by his inability to inform the jury about his impairments. I therefore would grant Lance’s petition for review and summarily reverse.


Absent this Court’s intervention, Lance may well be executed without any adequately informed jury having decided his fate. Because the Court’s refusal to intervene permits an egregious breakdown of basic procedural safeguards to go unremedied, I respectfully dissent.

The briefing in Lance is available on the Supreme Court's website here. The Training Division provides resources to federal capital trial and federal habeas counsel through the Capital Defense Network