Analysis Shows Supreme Court’s Changing View of Death Penalty Cases

A recent analysis by Bloomberg Law concluded that death-sentenced prisoners have fewer avenues to relief at the Supreme Court than ever before. Bloomberg identified 270 emergency requests to stay executions since 2013 and found that the Court agreed to block an execution just 11 times. Since 2020, when the Court shifted to a 6-3 conservative majority following the death of Justice Ruth Bader Ginsburg and the appointment of Justice Amy Coney Barrett, the Court has granted just two stays of execution. One, for John Henry Ramirez, challenged not the execution itself but the protocols for religious advisors in the death chamber. The Court granted Mr. Ramirez’s requests, and he was executed in 2022. The other stay was granted to Richard Glossip of Oklahoma this past May pending the outcome of his current appeal, in which the State supports a new trial. The Court considered Mr. Glossip’s petition at its “long conference” on September 26 but has yet to announce whether it will take the case. 

Bloomberg Law found that the Court also intervened to set executions in motion when a lower court had granted a stay. In the past ten years, the Court has granted 18 of 21 emergency requests to vacate a stay imposed by a lower court—making the Court significantly more likely to order an execution to proceed than to block one from occurring. Half of those orders to vacate a stay have been decided since 2020. Kelley Henry, attorney for federal death row prisoner Lisa Montgomery, saw multiple stays granted by lower courts “picked off one by one” in the 48 hours before Ms. Montgomery’s scheduled execution on January 13, 2021. Ms. Montgomery was executed just one week before President Joe Biden took office, one of the last of a string of federal executions conducted during the Trump administration after a 17-year hiatus. The new Biden administration imposed a moratorium on federal executions shortly after. “You never know until you get the final call from the capital case staff attorney at the Supreme Court what’s going to happen,” Ms. Henry said.

The justices’ opinions reveal a division at the high court on how to treat emergency stays, with the conservative majority viewing such stay applications with suspicion. “Last-minute stays should be the extreme exception, not the norm,” Justice Neil Gorsuch wrote in 2019. “Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay.” Justice Sonia Sotomayor has contended that such efforts to narrow the avenues of relief for death-sentenced prisoners result in “illogical” rulings that favor procedure over meritorious claims. Justice Sotomayor dissented from the 6-3 denial of a stay for Johnny Johnson in August, writing that the Court “paves the way to execute a man with documented mental illness before any court meaningfully investigates his competency to be executed.”

On October 2, the same day the Court denied review to two high-profile death-sentenced men with innocence claims, the Court denied two stay applications for Michael Zack of Florida. Attorneys for Mr. Zack had argued that he was intellectually disabled due to his diagnosis of Fetal Alcohol Syndrome, making his execution unconstitutional under Atkins v. Virginia (2002). Mr. Zack is scheduled to be executed at 6:00 p.m. on October 3.