The Supreme Court considered a death row inmate’s case on Wednesday in which he is trying to pursue a second bid to avoid execution, claiming that because of a change in the standards for intellectual disabilities since his first attempt, he should be spared from capital punishment.
The high court heard oral arguments in Guerrero v. Johnson, which deals with Dexter Johnson’s effort to get a second conviction review of his death sentence using a narrow legal loophole. Under federal law, death row inmates are typically only allowed one round of post-conviction appeals over their sentence unless one of two exceptions applies, including if the second argument relies on a new constitutional rule that was not available when the inmate went through the first appeals process. Johnson has argued that he cannot be put to death due to the 2002 ruling in Atkins v. Virginia, which found that it is unconstitutional to execute intellectually disabled people, even though his first appeal came years later, because a change since then to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders has now categorized his IQ as intellectually disabled.
The U.S. Court of Appeals for the 5th Circuit sided with Johnson, leading Texas officials, with the support of the DOJ, to appeal to the Supreme Court. The high court grilled Johnson’s lawyer, Jeremy Schepers, and appeared skeptical of his claims that he should be allowed to pursue the second round of review.
Justices Clarence Thomas and Amy Coney Barrett grilled Schepers on whether he believed Atkins was considered a “new” constitutional rule when Johnson started his first round of appeals in 2007.
“We believe that Atkins was new based off of the character of the decision in 2002 and that it remains new now,” Schepers said, prompting further questions on the “newness” of the ruling.
Justice Brett Kavanaugh also expressed concern that Schepers’s arguments would open the door to additional review as standards for various disorders and other facts evolve, questioning what would happen when the APA released a DSM-6 or a DSM-7.
Texas Solicitor General William Peterson faced several sharp questions from the three liberal justices over his argument that the new APA standards do not mean that a new constitutional rule has emerged and opened the door for a second review. Justice Sonia Sotomayor questioned why the new rating from the APA would not be enough for Johnson to have a new claim that was previously unavailable.
“I don’t see what the difference is. If what we have said under Atkins is you cannot execute someone who is mentally ill, we have a certain way of determining that, and it doesn’t become ripe until the DM-5 makes it ripe,” Sotomayor said. “Now there’s a timing issue that’s separate that the court below may have dealt with right or wrong — I don’t know — but put that aside. If that wasn’t available during his first habeas petition because it wasn’t ripe yet, why isn’t it ripe now?”
Peterson pushed back on that assertion, noting that he could always make the claim that he was intellectually disabled, since Atkins predated his conviction, and therefore that he is not eligible for the second round of review.
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The Supreme Court could issue a ruling in the case as soon as early 2027 or as late as the end of June 2027, when the high court’s current term is expected to end.
Next month, the high court will hold oral arguments in several high-profile cases, including disputes about “assault weapons” bans and over the legality of President Donald Trump’s “third country” deportation policy.