Death Penalty Math at the Supreme Court
The always excellent Adam Liptak writes about a ‘quirk’ of United States Supreme Court death penalty jurisprudence: the fact that it takes 4 justices to grant review, but 5 to stay an execution leads to the execution of defendants before their cases can be heard.
From ‘Going to Court, But Not in Time to Live”:
It is possible, then, for a death row inmate to persuade the court that his case is so important that it deserves a place on the court’s tiny docket of roughly 80 cases a year — but not so important that he should be allowed to stay alive in the meantime.
Consider the case of Luther J. Williams, who was put to death on Aug. 23 in Alabama. Four justices had voted to stay the execution.
Mr. Williams’s appeal included a challenge to the constitutionality of the chemicals used in lethal injections, which have the potential to cause excruciating torture if administered improperly. A month after his execution, the court agreed to hear that question in another case.
When you hear death penalty advocates insist that all defendants have had full access to the courts… remember that this is the definition of full access.
Supreme Court math used to yield different results. As Justice Lewis F. Powell Jr. wrote in a 1986 decision, “the court has ordinarily stayed executions when four members have voted” to hear an appeal.
But Justice Powell, who was in those days often the swing vote, grew testy about the practice. It “illustrates how easily the system is manipulated in capital cases,” he wrote to the other justices after providing the fifth vote for a stay as a courtesy in a 1985 case.
By 1990, things had changed. “For the first time in recent memory,” Justice William J. Brennan Jr. wrote, “a man will be executed after the court has decided to hear his claim.” The man was James E. Smith, and he was put to death in Texas the day the stay was denied.
This is one of those situations where there’s a clear injustice, and a simple solution.
#1) The reason it doesn’t take 5 justices (out of 9 total) to grant a petition to hear a case in the Supreme Court is that they haven’t actually heard the case yet, so they don’t know how many total votes for reversal there might be. 4 out of 9 to grant review is perfectly reasonably. That fifth vote to reverse is frequently there.
#2) Requiring 5 out of 9 to grant a stay of execution is ridiculous, in light of #1.
#3) The current rules lead to absurd (never mind unfair, immoral, illogical, etc.) results. So change the rule. Make it 4 out of 9. Simple – ‘nuff said.
Gosh, next thing you know, ‘full access to the courts’ will mean they’ll be executing people because some lawyer forgot to file a petition on time, rather than on the basis of actual guilt. Or that executing the actual innocent defendant doesn’t rise to the level of cruel and unusual punishment.
Oh wait…
