That's the title of another must-read Sidebar column by Adam Liptak in Monday's New York Times. LINK
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.”
Earlier coverage of Justice Stevens' comments on Emmett is here.
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