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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.