The U.S. Supreme Court has stayed the exe­cu­tion of Tommy Arthur, who was sched­uled to be exe­cut­ed in Alabama at 6:00 p.m. Central Time on November 3. Around 10:30 p.m. Eastern, the Court first issued a tem­po­rary stay of exe­cu­tion through Circuit Justice Clarence Thomas ​“pend­ing fur­ther order” of the Court. Anticipating a sec­ond rul­ing by the Court, Alabama con­tin­ued prepa­ra­tions for the exe­cu­tion. Then, just before mid­night in Washington, the Court issued a full stay to per­mit it to con­sid­er a peti­tion for writ of cer­tio­rari Arthur had filed ear­li­er in the day. Arthur’s lawyers had filed two stay appli­ca­tions and peti­tions for writs of cer­tio­rari. One peti­tion sought review of the Alabama Supreme Court’s sum­ma­ry dis­missal of his chal­lenge to the con­sti­tu­tion­al­i­ty of Alabama’s death penal­ty statute under the Supreme Court’s January 2016 deci­sion in Hurst v. Florida. Hurst struck down Florida’s death penal­ty statute because it required a judge, rather than a jury, to find crit­i­cal facts that were a pre­req­ui­site to impos­ing the death penal­ty, and Arthur had argued that Alabama’s statute suf­fered from the same defect. The oth­er peti­tion sought review of the denial of Arthur’s lethal-injec­tion chal­lenge by a divid­ed 2 – 1 pan­el of the U.S. Court of Appeals for the Eleventh Circuit. In its opin­ion, that court had ruled that Arthur had not met the bur­den imposed by the Supreme Court’s 2015 deci­sion in Glossip v. Gross of show­ing that an alter­na­tive method of exe­cu­tion was avail­able to Alabama because the fir­ing squad — his pro­posed alter­na­tive — was not ​“read­i­ly avail­able” under Alabama law. The dis­sent wrote: ​“By mis­read­ing an Alabama statute, the Majority cre­ates a con­flict between the claim and state law. The Majority then resolves that faux con­flict in favor of state law, tak­ing the unprece­dent­ed step of ascrib­ing to states the pow­er to leg­isla­tive­ly fore­close con­sti­tu­tion­al relief. These mis­steps nul­li­fy count­less pris­on­ers’ Eighth Amendment right to a humane exe­cu­tion.” The Supreme Court grant­ed Mr. Arthur’s stay appli­ca­tion in the lethal-injec­tion case. Four Justices vot­ed to stay the exe­cu­tion, with Chief Justice Roberts pro­vid­ing the fifth vote ​“as a cour­tesy.” Justices Thomas and Alito dis­sent­ed. Without the time con­straints imposed by the death war­rant, the Justices can now con­sid­er whether to grant review in the case. This was the sev­enth time Mr. Arthur’s exe­cu­tion has been stayed.

(K. Faulk, ​“Tommy Arthur avoids exe­cu­tion 7th time: Supreme Court issues stay in Alabama mur­der-for-hire,” Birmingham News (AL​.com), November 4, 2016; M. Berman, ​“Supreme Court halts sched­uled exe­cu­tion of Alabama death row inmate,” The Washington Post, November 4, 2016; T. Connor, ​“Supreme Court Delays Inmate Tommy Arthur’s Seventh Execution Date,” NBC News, Nov. 4, 2016.) Read the Supreme Court order here. See Lethal Injection and U.S. Supreme Court.

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