Deadly Judicial Math on Executions

As we view the proceedings of various courts, we have to wonder how fallible they are. First, there’s the Jena, Louisiana court where a black teen can be charged with attempted murder for a brawl with a schoolmate. Then there’s the Brownwood, Texas court, where a 15 year-old girl, again African American, can be sentenced for up to seven years for shoving a teacher’s aide.

Our courts are not always right. Sometimes the appeals a prisoner makes to a higher court are their only hope for real justice.

So keep this in mind while you think about a bizarre twist of appellate arithmetic. Despite the fact that an appeal of a prisoner’s death sentence can be taken up by the agreement of four Supreme Court justices to hear his case, that same prisoner can still be executed before his case is heard.

Adam Liptak writes about the fatal phenomenon in today’s NY Times:

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.

Legal carnage like the Williams execution will likely now become more reflective of the tenor of American justice. Some states are pledging to push forward with executions, even while a Supreme Court appeal, which would affect many condemned prisoners' method of execution, is now on the high court’s docket, awaiting argument.

Texas went so far recently as to execute a prisoner on time, while his lawyers, because of a computer failure, weren’t able to file a last-minute appeal by the court’s ordinary closing time of 5 PM. The Texas justice answering the defendants lawyer's call simply refused to wait for the documents.

There’s an air of vicious urgency about some courts’ desire to make the gears of death grind quickly, whether or not there’s a decent chance those same wheels would be stopped for good by a higher authority, if given a little time. Because of this, Justice Stevens wants the Supreme Court to make it a practice to stay all executions while it hears a defendant’s first petition for a writ of habeas corpus. Whether a majority will agree in these times is not at all certain.

It's more certain, however, that our system of executions will appear barbaric to future generations.