New York Times

October 8, 2007

Sidebar

Going to Court, but Not in Time to Live

By ADAM LIPTAK
Let us consider the arithmetic of death.

There are nine justices on the Supreme Court. It takes four votes for the court to agree to hear a case. But it takes five votes to stay an execution.

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.

“They knew they were going to consider the issue and let a man die,” Joel L. Sogol, who represented Mr. Williams, said of the justices. “May he haunt their nights for the rest of their lives.”

Mr. Sogol acknowledged that smart lawyers could distinguish between the two cases, but he said the central issue was the same. In any event, he said, he got four votes for a stay, which suggested he would have had four votes to hear the case had his client lived.

Since the Supreme Court accepted the new lethal-injection case last month, even the most pro-execution states seem to have begun an informal death-penalty moratorium. But Mr. Sogol said he was so angry he could not bear to read about those developments.

“It doesn’t make any sense to me that an issue is important enough that there are four votes to take it up,” he said, “but let’s execute him anyway.”

Last Monday, in terse legalese, the court denied Mr. Williams’s now posthumous request that it consider his case. “The petition,” the docket entry said, “is dismissed as moot.” Moot, in other words, because the petitioner is dead.

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.

At his Supreme Court confirmation hearing two years ago, Judge John G. Roberts Jr. was asked what he would do “if you had four other justices now voting for a stay of execution?”

“Do you feel, as chief, you should do the courtesy,” Senator Patrick J. Leahy, Democrat of Vermont, asked, “and kick in the fifth one?”

“I don’t want to commit to pursue a particular practice,” Judge Roberts said. “But it obviously makes great sense.”

“You don’t want to moot the case by not staying the sentence,” he added.

The available information is sketchy, and the court seldom issues explanations for why it declines to hear cases or issue stays. But it does not seem that Chief Justice Roberts has consistently adopted the practice he had tentatively endorsed.

Last Monday, Justice John Paul Stevens issued an unusual statement in the case of Christopher S. Emmett. The court had been set to consider Mr. Emmett’s appeal on Sept. 24 after returning from its summer break. “Nevertheless,” Justice Stevens wrote, “Virginia set an execution date of June 13.”

Four justices voted in favor of a last-minute stay of execution, but that was not enough. Two hours before Mr. Emmett was to die, Virginia’s governor, Tim Kaine, a Democrat, stepped in to do what the court would not.

“Basic fairness demands that condemned inmates be allowed the opportunity to complete legal appeals prior to execution,” Mr. Kaine said in a statement. “The irreversibility of an execution and the fact that four justices of the court believe a stay is needed to consider the appeal warrant my intervention in this case.”

In the end, the court turned down Mr. Emmett’s appeal, which had been based on a claim of ineffective counsel. He is now scheduled to be executed in October, and his lawyers are working on a stay or reprieve based on the lethal-injection case.

Justice Stevens drew a lesson from the experience. Both justice and efficiency would be served, he wrote, by routinely staying all executions until the court can hear a condemned inmate’s first petition for a writ of habeas corpus. That would “accord death row inmates the same, rather than lesser, procedural safeguards as ordinary litigants.”

Justice Stevens said he hoped a majority of the court would “eventually endorse” his thinking. But only Justice Ruth Bader Ginsburg joined his statement.