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.