More Thoughts on Death Penalty Stays
I wanted to follow up briefly on my earlier post (here) regarding death penalty stays at the Supreme Court. As I wrote there, under current practice, if four Justices grant to vote cert., a “courtesy” fifth vote will be provided for a stay of execution. The point of this understanding among the Justices is to avoid the unseemly scenario in which the Court grants review in a case that subsequently becomes moot because the respondent kills the petitioner.
I thought it worthwhile to write to make clear that there remains one significant area of controversy with respect to stays. As I explained in my earlier post, if four Justices vote to stay an execution, no “courtesy fifth” will be provided. The four must actually vote to grant cert. A difficult dilemma arises when four Justices seek a stay in a late-presented case in order to consider the petition more fully and decide whether to grant review.
If the cert. process in capital cases were orderly and provided adequate opportunities for reflection, the distinction between stay and cert. votes would be immaterial. The four who vote to stay would have the time to decide whether to grant cert. But the cases in question are often rushed. The stay is required precisely because an execution is generally imminent. Although the Court’s staff works hard to collect the opinions and briefs in capital cases in advance of execution dates, the Justices may not receive the actual stay papers until shortly before the execution itself. Petitions sometimes arrive only hours beforehand, and (particularly during the summer recess) the Justices may be spread across the globe.
Justices thus sometimes vote for stay of execution in order to consider the case further. They don’t yet know whether they would agree to hear the case; they need the opportunity to study and reflect in order to make a decision. When there are four such votes to stay the case, a courtesy fifth vote is not automatically provided, however. The execution can go forward.
These cases present a terrible dilemma, to which there is no right answer. On the one hand, these cases frequently have been pending for many years, and it represents a substantial intrusion upon the State’s own prerogatives under the Constitution to forbid an execution at the last moment (sometimes in response to a fairly desperate last-minute filing by the prisoner’s lawyers) merely in order to study the case further. On the other hand, death is different; there is no taking back a mistake. Congress established procedures for seeking review in the Supreme Court and the execution moots that opportunity for review. The Court currently resolves the dilemma against a stay of execution.
In such a case, the Court schedules the consideration of the case for the next available Conference. But that Conference will often be held after the execution occurs and, in that circumstance, the petition will be dismissed (sometimes as moot) because the petitioner is by then dead.
The four Justices who would grant the stay can only keep the case “alive” only if they go ahead and vote to hear the case immediately. But this presents dilemmas of its own. The case may in fact not be certworthy. And the four - in the current Court, almost always Justices Stevens, Souter, Ginsburg, and Breyer - would likely hesitate before adopting a regular practice of protectively granting cert. in those circumstances, recognizing that the remaining five more conservative Justices might respond by stopping granting a “courtesy fifth” vote for a stay in such cases.
Is there a good reason why the Rule of Four applies only to cert grants, but not to procedural votes that come before a grant of cert and might have to come out a certain way for cert to later be granted. This isn’t limited to death cases; stays often are required, as a practical matter, if a case is going to remain a live controversy long enough for the Court to consider it. Why isn’t permitting four justices to grant a stay the right answer?
Now, perhaps this would be a hard change to enact in the current political environment on the Court, but I’m surprised it didn’t come up decades ago.
Comment by Roger Ford — October 19, 2007 @ 6:03 pm
Tom, thanks for this interesting post.
This is probably what Justice Powell talked about the abusing of the courtesy vote. But this really comes down to what is certworthy in terms of death penalty cases. In my opinion, the “liberal” wing of the court has a lower threshold in granting a cert in death penalty cases than the conservative wing. If more than 4 justices vote to grant cert, i think it’s almost a sure thing that the stay of execution would be granted.
One side is more concerned about executing the right man whereas the other side think this is the state’s right and finality of justice takes precedence. Frankly i’m on the fence, but i’m almost always haunted by Blackmum’s dissent “The execution of a person who can show that he is innocent comes perilously close to simple murder”.
In cases where the justices don’t have time to even look through the case involving death penalty, i believe there should be an automatic grant of stay of execution to review the case and then vote on whether to grant cert and if there is 4 votes for it, it’s up to the other 5 to decide if they want to withdraw their vote on the stay for execution.
I think the rule of 4 should instead be modify to rule of 5 then no cases would have to depend on the politics of “courtesy vote”.
Comment by Chee Foong Chew — October 20, 2007 @ 10:02 am
A committee headed by Justice Powell studied this problem a couple decades ago.
The right answer is to (1) have an automatic stay for the first round of federal review, lasting through denial of certiorari, (2) conduct that round with reasonable dispatch, and (3) not have a second round, except in cases with strong evidence of actual innocence (which is a very small fraction of the cases).
If we can finally get Chapter 154 of Title 28, U.S.C. enforced, 11 years late, we might actually achieve something along those lines.
Comment by Kent Scheidegger — October 21, 2007 @ 7:56 pm
Is there a good reason why the Rule of Four applies only to cert grants, but not to procedural votes that come before a grant of cert and might have to come out a certain way for cert to later be granted.
I suspect the reason is that a cert. grant is merely a decision to take a closer look (by accepting briefs and scheduling oral argument), but a stay is substantive: it actually provides relief to the requesting party, albeit temporarily. And decisions that provide relief require a majority.
Comment by Marc Shepherd — October 22, 2007 @ 11:23 am
Kent –
Powell was off the bench before we knew about DNA tests and cruel and unusual cocktail claims. You have to admit that politicians have been playing politics (what else) with prison terms (prisoners being a minority who can be counted on not to vote) to the point that we have the most punitive criminal justice system in the world. It is for this that we have judicial independence in the federal courts. Congress may try to AEDPA this away, but to have rights without remedies is as much like the Soviet Union as to have rights without an independent judiciary, which Roberts is quick to condemn.
Comment by Roger Friedman — October 22, 2007 @ 7:06 pm
Having a case reviewed by the state courts on appeal and the state courts on habeas and one full round of federal habeas review is “like the Soviet Union”? Get real.
Comment by Kent Scheidegger — October 22, 2007 @ 7:30 pm
AEDPA review, in which a decision that is almost certainly erroneous that still isn’t an unreasonable application of clearly established SCOTUS precedent will be upheld, isn’t excatly a “full” round of review. And in states where the judges have to run for reelection, there cannot be said to be real independence of the judiciary. Coutless studies of sentencing judges have shown a far greater likelihood of them handing out death sentences close to elections, and there is no reason to believe that the state supreme court justices, who face much more high profile elections, are any more indpendent. The Soviet Union metaphor is hyperbola, but I have no doubt that the innocent man in John Grisham’s “Innocent Man” would have been executed had federal courts applied AEDPA to his case with the rigidity that you constantly advocate.
Comment by Jacob Berlove — October 22, 2007 @ 11:58 pm
Jacob,
I agree with you that both judges in state court and state supreme court can be biased and not fully independent. But it is not justices role to change law as they see fit, it’s up to the people and legislature. People may be in favour executing the people who commited horrible crimes, but people will not agree with a system that executes the wrong person.
Another problem for AEDPA and all the appeals that it accords is the lawyers itself. Not all lawyers will try their best to help their clients, they can do minimal work and leave it as it is. With AEDPA, the first habeas is critical because the second requires clear and convincing evidence which is difficult to find years after the crime.
So if you had a substandard lawyer on the first appeal, your life is almost over even if you’re innocent.
Comment by Chee Foong Chew — October 23, 2007 @ 4:47 am
Having observed both the state and federal courts in capital cases here on the Left Coast for the last two decades, I can say without hesitation that the assumption that the federal courts are necessarily better is false.
Comment by Kent Scheidegger — October 23, 2007 @ 3:40 pm
Comment to “More Thoughts on Death Penalty Stays”
As someone who has litigated Federal habeas corpus petitions for over 30 years I find Ken Scheidegger’s October 21, 2007 plea “if we can finally get Chapter 154 of Title 28, USC enforced, 11 years late…” singularly peculiar. The exceptionally restrictive provisions of the AEDPA are in fact being very enthusiastically enforced by the Federal courts, to the detriment of the spirit of habeas corpus. Combined with the courts’ virtually unfettered and unreviewable discretion to preemptively preclude appellate review of demonstrably meritful issues by the simple expedient of refusing to grant a certificate of appealability, the AEDPA’s severe constraints have rendered Federal habeas corpus review little more than a rubber stamp affirming a state court review. Those of us battling in the trenches - and I speak from death row with a cert petition currently pending - know from experience, rather than from an abstract, academic perspective, how the AEDPA is routinely utilized to deny relief in even the most egregious cases.
Comment by william van poyck — November 5, 2007 @ 10:53 pm