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Divided court allows Alabama execution to proceed

There was high drama at the Supreme Court last night, in the case of an Alabama death-row inmate who sought a last-minute stay of his execution, which was originally scheduled for 6 p.m. CST yesterday. Although the court would twice put a temporary hold on the executions, his flurry of filings was ultimately to no avail: The execution eventually began shortly after 10 p.m. CST, and he was pronounced dead roughly an hour later.

The inmate in the case was Ronald Smith, who in 1995 was convicted of capital murder for the shooting death of Casey Wilson, a convenience-store clerk in Huntsville, Ala. A majority of the 12-member jury recommended that Smith receive a sentence of life in prison, but the judge overrode that recommendation and sentenced Smith to death. Earlier this year, the Supreme Court struck down Florida’s death-sentencing scheme, holding that the Constitution “requires a jury, not a judge, to find each fact necessary to impose a sentence of death”; that ruling, Smith argued, should also render his death sentence invalid.

The drama began when Justice Clarence Thomas, who is responsible for emergency appeals from the geographic area that includes Alabama, initially issued an order to halt the scheduled 6 p.m. execution, presumably to give the full court a chance to weigh in before the execution was carried out.

A few hours later, a divided court vacated that temporary stay and allowed the execution to go forward. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan indicated that they would have blocked the execution. However, although a petition to review a case on the merits needs only four votes, a request to put a lower court’s ruling on hold – and, as here, to block an execution – needs five votes, which Smith apparently did not have.

To deal with situations like these, in which an inmate might be able to garner four votes to grant review but not five votes to stay his execution, a practice known as the “courtesy fifth” has developed: A fifth justice will provide the vote needed to stay the execution, even if that justice might not have otherwise been inclined to do so, so that an inmate will not be executed before the court decides whether to weigh in on the legal issues in the inmate’s case. However, the “courtesy fifth” practice has not always been used consistently in recent years. And so it was noteworthy when, last summer, Justice Stephen Breyer joined his four more conservative colleagues to stay a lower court’s ruling that would have required a Virginia high school to allow a transgender student who identifies as a boy to use the boys’ bathroom. In that case, Breyer indicated that he was providing the fifth vote to block the lower court’s ruling as “a courtesy” to preserve the status quo until the justices could decide whether to grant review on the merits.

Some court-watchers at the time suggested that Breyer’s vote was strategic, to encourage a return to the “courtesy fifth” practice in capital cases. And indeed, a few months later, Chief Justice John Roberts provided a “courtesy fifth” vote to put the execution of another Alabama death row inmate, Tommy Arthur, on hold.

There was no “courtesy fifth” for Smith last night. That prompted Smith’s attorneys to ask the justices to reconsider their denial of a stay. The attorneys argued that the court’s “inconsistent practices” on the “courtesy fifth” vote “clash with the appearance and reality of both equal justice under law and of sound judicial decision-making.” “Regardless of the technicalities of the” court’s rule for a “courtesy fifth,” the lawyers contended, “the Court should not permit executions in the face of four dissents. Where capital cases arrive here by certiorari, the Members of the Court should have as much time for consideration as they would in any other case.”

Thomas, acting alone, once again stayed Smith’s execution. But, once again, the reprieve was only temporary. The court denied Smith’s motion for reconsideration at approximately 10 p.m. EST, without any noted dissents. Smith’s attorneys returned one more time to the court, asking the justices to block Smith’s execution so that the court could review his argument that Alabama’s lethal-injection protocol violates the Constitution’s ban on cruel and unusual punishment. The court quickly denied that request as well.

Reports on Smith’s execution indicated that Smith “heaved and coughed for about 13 minutes” of the 34-minute execution. Alabama Prison Commissioner Jeff Dunn told reporters that the state had “followed our protocol.” The Supreme Court rejected a challenge to Oklahoma’s lethal-injection protocol in 2015, but inmates continue to raise questions about lethal injection. Among the cases that the justices will consider at their private conference today is a petition for review by an Ohio death-row inmate whose 2009 execution was halted when officials could not access a vein to start an IV line. The inmate, Romell Broom, argues that allowing the state to try to execute him again in light of those problems would violate the Constitution.

(Thanks to Chris Geidner and BuzzFeed News for making the filings in this case available online.)

Recommended Citation: Amy Howe, Divided court allows Alabama execution to proceed, SCOTUSblog (Dec. 9, 2016, 1:13 PM),