Supreme Court won’t hear appeal of Texas inmate who has been on death row for 30 years

By Mark Berman March 23

Lester Bower in a Texas prison. (Michael Graczyk/AP)

The Supreme Court said Monday it would not hear an appeal from an inmate who has been on death row in Texas for three decades. This decision lifts a stay that has been in place since last month and opens the door for Texas to schedule and try to carry out an execution of one of its longest-serving death row inmates.
Lester Bower, 67, was convicted of shooting and killing four men in an aircraft hangar in 1983. He shot one man while trying to steal an ultralight plane this man was trying to sell, then shot the other three when they unexpectedly arrived, according to the Texas Department of Criminal Justice.
Bower’s long tenure on death row was among the reasons his attorneys argued he should be eligible for a stay. They say that his execution has been scheduled six times since he arrived on death row, and he has come within hours of heading to the death chamber before.
“Executing Mr. Bower after he has served on death row for more than 30 years under these circumstances serves no penological purpose and constitutes cruel and unusual punishment,” his attorneys wrote in a filing to the Supreme Court.
Last month, five days before Bower’s scheduled lethal injection in Texas, the full Supreme Court granted his request for a stay while it considered whether to hear his case. No explanation was offered, but the court’s order said that if the justices decided not to hear the case, the stay would be lifted.
The court’s decision Monday not to hear the case comes weeks before the justices are scheduled to consider a different case involving capital punishment. The justices are going to hear a case focusing on Oklahoma’s lethal-injection procedure, which relies upon a controversial drug that has been involved in problematic executions. Executions in Oklahoma, Florida and Alabama have been delayed until after the court rules in that case.
[Related: Why the Supreme Court is considering lethal injection and what that could mean for the death penalty]
After the court said it would not hear the case after all, Justice Stephen Breyer argued in a dissent that the court should hear it because of an issue involving Bower’s sentencing. When Bower was convicted, the jury helping decide his sentence did not consider potentially mitigating evidence, something the Supreme Court later said was unconstitutional. As a result, Beyer says this should allow for a new sentencing hearing for Bower.

Justice Stephen Breyer. (Brendan Hoffman/Getty Images)

“I recognize that we do not often intervene only to correct a case-specific legal error,” Breyer wrote in the dissent, which was joined by Ruth Bader Ginsburg and Sonia Sotomayor. “But the error here is glaring, and its consequence may well be death.”
If Bower had been executed last month as scheduled, he would have been the oldest inmate executed in Texas history, according to the state’s Department of Criminal Justice. As it is, he has already spent three times as many years on death row as the average inmate in the state. The average death-row inmate nationwide has spent about 14 years under a death sentence, Justice Department figures show.
[Related: Ohio delays all executions scheduled for 2015]
A federal judge in California last year called that state’s death penalty system unconstitutional and “completely dysfunctional,” decrying a system he said was plagued by delays. U.S. District Judge Cormac J. Carney wrote this in an order vacating the death sentence of an inmate who was facing an execution nearly two decades after being sentenced, which Carney said violated the Eighth Amendment’s ban on cruel and unusual punishment.
Texas state officials argued against granting Bower a reprieve, saying that because Bower has been fighting his looming execution in the courts for so long, his lengthy tenure on row “is purely of his own making.”
“Bower’s claims are nothing more than a meritless attempt to postpone his execution,” the office of Ken Paxton, attorney general of Texas, said in a filing to the Supreme Court opposing a stay. “The families of the victims of Bower’s quadruple murder have been waiting to see Bower’s sentence carried out for over thirty years now.”
However, it is unclear when Bower may face the death chamber. Texas has half a dozen executions scheduled over the next three months and only one dose of its lethal injection drug left. As a result, if the state carries out its scheduled execution of Kent Sprouse on April 9, it will have no execution drugs left and five other executions on the calendar. States around the country are facing a shortage of lethal injection drugs, which has fragmented the way executions are carried out nationwide.
RELATED:
How the death penalty continued its slow, steady decline in 2014

Mark Berman is a reporter on the National staff. He runs Post Nation, a destination for breaking news and developing stories from around the country.