« How can and should Ohio's justice system deal with merciful elderly aggravated murderer? | Main | SCOTUS grants cert to clarify required intent for federal bank fraud »

December 13, 2013

Splitting 5-4 along party lines, SCOTUS vacates stay to allow Mizzou to complete novel execution

Distracted by other stories yesterday, I only now discovered that the US Supreme Court issued late Wednesday night this order (which, as I will explain below, strikes me as a pretty big deal):

The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eighth Circuit on December 9, 2013, presented to Justice Alito and by him referred to the Court, is granted.

Justice Ginsburg with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting. 

I would deny the application to vacate the stay of execution entered by the Court of Appeals.  See Bowersox v. Williams, 517 U.S. 345, 347 (1996) (GINSBURG, J., dissenting) (“At the very least, before acting irretrievably, this Court might have invited prompt clarification of the Court of Appeals’ [stay] order.  Appreciation of our own fallibility, and respect for the judgment of an appellate tribunal closer to the scene than we are, as I see it, demand as much.”).

The start and end of this lengthy AP article about the execution which followed this SCOTUS ruling accounts for why I think this order is a pretty big deal:

Allen Nicklasson once recalled the "euphoria" he felt after fatally shooting a kindly businessman who stopped to help when he saw Nicklasson's car stalled on Interstate 70 near Kingdom City, Mo., in 1994.

Late Wednesday night, Nicklasson was put to death for Richard Drummond's killing — nearly 23 hours after he was originally scheduled to die. It was the second execution in Missouri in three weeks after a nearly three-year hiatus. Racist serial killer Joseph Paul Franklin was executed Nov. 20.

The executions also were the first since Missouri switched from a three-drug protocol to use of a single drug, pentobarbital. Nicklasson, 41, was pronounced dead at 10:52 p.m. Wednesday, eight minutes after the process began.  His eyes remained closed throughout and he showed little reaction to the drug, briefly breathing heavily about 2 minutes into the process. He offered no final words....

Nicklasson's execution was originally scheduled for 12:01 a.m. Wednesday.  But an appeals court panel granted a stay of execution Monday, citing concerns about his counsel at trial and sentencing in 1996.

When the full appeals court refused to take up the case Tuesday, Missouri Attorney General Chris Koster appealed to the U.S. Supreme Court.  It did not return its 5-4 decision to vacate the stay until 10:07 p.m. Wednesday, with Justices Ruth Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissenting.  Gov. Jay Nixon refused to grant clemency.

Missouri previously used a three-drug method for executions but changed protocols after drugmakers stopped selling the lethal drugs to prisons and corrections departments.  The pentobarbital used in Missouri executions comes from an undisclosed compounding pharmacy — the Missouri Department of Corrections declines to say who makes the drug, or where.

My general sense and understanding is that it is relatively rare for the Supreme Court, especially at the last minute, to vacate a lower court's stay in a capital case, especially if and when that stay was entered by a circuit which does not have a long history of getting in the way of state executions.  Moreover, in addition to the legal issues that led to the stay, I think the defendant here was also seeking a stay in order to be able to question and assail Missouri's new lethal injection drugs and method.

Given that the four more liberal Justices were obviously eager to allow the stay of this execution to remain in place, I find it notable and seemingly important that the more conservative Justices were able to get swing Justice Kennedy to vote to vacate the stay and enable the Mizzou execution to be carried out.  Particularly given that, over the last few years, aggressive lower-court litigation has probably played more of a role in reducing the total number of executions than many other factors, I cannot help but wonder if this decision represents a kind of (indirect?) statement by a majority of the Supreme Court that, at least for brutal killers who've already gotten to live on death row for decades, enough is enough.

Especially because this SCOTUS order is only an order and has not generated much attention at all, I may be guilty of trying to make this decision more of a big deal than it is.  Nevertheless, especially as another year filled with capital habeas litigation winds to a close, I cannot help be think this may be an interesting and telling sign of future SCOTUS capital rulings to come.

December 13, 2013 at 12:16 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Splitting 5-4 along party lines, SCOTUS vacates stay to allow Mizzou to complete novel execution:


I hadn't heard about this order at all, though I had heard about the 8th Circuit's stay. Thanks for the update, Professor Berman!

Also, I have been unable to find the 2-1 split in the 8th Circuit. Does anyone know who was on the three-judge panel and how they split?

Posted by: Knudson | Dec 13, 2013 2:05:03 PM

"Splitting 5-4 along party lines"

" Nancy Pelosi on deal: 'Embrace the suck' "
It wouldn't have even split at all had Libs followed their wise one.

"House Minority Leader Nancy Pelosi told Democratic House members at a meeting Thursday morning to “embrace the suck”
and encouraged enough members to back the budget deal on the floor..."


Posted by: Adamakis | Dec 13, 2013 2:36:05 PM

I see it as being a fairly big deal if SCOTUS is going to start enforcing the requirement that in federal court when challenging a state court conviction the burdens are upon the offender.

Posted by: Soronel Haetir | Dec 13, 2013 2:42:07 PM

They assigned the case to the same panel which denied Nicklasson's appeal in June 2007. Wollman, Melloy and Beam.

Beam was the dissenter. The other two judges wanted to brief it and argue in January mainly on Martinez issues.

The two recent executions in Missouri obviously show a confusion in the district and circuit courts on when to grant a stay. I was surprised when Wollman and Melloy issued the stay and surprised even more when the full court didn't vacate it. As Doug said, the 8th circuit has never given any of the states a difficult time carrying out executions.

Posted by: DaveP | Dec 13, 2013 3:08:25 PM

So, if it wasn't a "brutal killer," Kennedy might have "at the very least, before acting irretrievably, this Court might have invited prompt clarification of the Court of Appeals’ [stay] order"?

As to length of time, 1996 is not quite "decades" -- for good or ill, actually, hasn't he really been in prison for a median amount of time as these things go? This isn't a case that was tried over twenty years ago, like some cases.

I agree a message might be being sent. Somewhat opaquely though. Might it have been better to request the clarification and write a dismissive per curiam that if anything sent a larger message? I guess YMMV there.

Posted by: Joe | Dec 13, 2013 4:08:04 PM

Well, welcome back Joe. I missed your defenses of last minute stays. Here you're just nibbling around the edges.

Let's start from the top--the Eighth Circuit is responsible for a pretty egregious stay a few years back on a Ring issue. The Supreme Court meekly refused to step in. We'll see how the 8th Circuit handles the flood of dates coming from Missouri and likely Arkansas.

Second, Ginsburg's position is laughable. Apparently, Justice Ginsburg thinks that it's acceptable that federal courts stay. executions on last minute motions without setting forth any reasoning. The 8th Circuit panel majority didn't bother to describe how Nicklasson deserved a stay and didn't resolve the state's interest in enforcing its judgment. The stay was particularly egregious--the denial of Nicklasson's federal habeas petition became final in 2007. Even if you accept the idea that Martinez is a valid reason for ripping open a federal habeas denial--Martinez didn't happen yesterday. (Note: a change in the law doesn't excuse non-filing of a claim. Why this rule is not enforced against litigants who should get the least succor federal courts is beyond me. It is, of course, axiomatic that capital murderers who have no innocence claims and who have exhausted federal habeas remedies should have the least claim on special treatment.)

Of course, the braintrust who actually writes Justice Ginsburg's opinions apparently forgot that the federal trial court, much closer to the action than the federal court of appeals, denied the stay. So apparently, proximity to the action only cuts one way for Justice Ginsburg. Even without that miss--Ginsburg's brief explanation of her vote to deny the motion to lift the stay is weak. Apparently, Ginsburg and the rest of the crew believe that the state (and victims' families) ought to bear the risk of an appellate court not explaining itself when it overturns a discretionary decision by the trial court (i.e., the court with the best view). I thought "our Federalism" was made of sterner stuff.

Funny how, in an attempt to be snide, Ginsburg embarrasses herself--guess that's what happens when a Justice decides to base a decision on a visceral dislike for a clearly constitutional punishment.

My sense is that Joe isn't going to try to defend Ginsburg here. He turned tail and ran on other threads. You'll see him stay on the porch in this thread.

By the way, it is funny how all those supposedly super smart lib clerks missed the obvious fact that the court with the best seat in the house called it for the state. I guess those Harvard and Yale trolls missed the day in law school when they taught that the procedural history of a case may be important. Instead, they tried to be snide--and they look like fools.

Posted by: federalist | Dec 13, 2013 11:39:07 PM

Having been a former citizen of the State of Mizzou, I can tell you that they like to kill inmates out there but that they will usually back it up with good reasons why this guy deserves it. What gets me is the number of people locked up for small potatoes. It is very expensive to lock these guys up for life. Maybe kill more of em or let more of em go. Or do both.

Posted by: Liberty1st | Dec 14, 2013 1:27:30 PM

Any response from the libs defending the panel majority or Ginsburg's opinion? Beuler?

Posted by: federalist | Dec 15, 2013 10:57:00 AM

One should keep in mind that the Supreme Court spent most of two days debating whether to overturn the stay and only did so a couple of hours before the warrant directing the execution expired. This suggests the fifth vote was very conflicted about the issues. Justice Ginsburg's opinion is also intriguing for the opinion she cites. The majority in that opinion chastises the issuance of stays without setting forth reasons to do so - exactly what the Eighth Circuit panel did in this case.

Of more interest is that the preceding execution in Missouri involved a systemic attack on the execution protocol used in Missouri. That issue did not generate a stay from the Eighth Circuit, which had previously suggested in an opinion that if Missouri went to a single drug pentobarbital protocol, which it did, that that court would likely approve it.

Posted by: Ashland | Dec 16, 2013 9:08:43 AM

Ashland, interesting thoughts. IIRC, the Court was busy that day, and the Justices may have spent a lot of time looking at the record.

The real issue, I think, is that there is simply no justification for the 8th Circuit's actions here. So Ginsburg's opinion, aside from the obvious flaws, has a bit of surreality to it. What could the 8th Circuit have possibly said--that it was going to endorse the last minute nature of the Rule 60(b) motion seven years after the habeas denial became final? That the District Court abused its discretion in denying the stay? Ginsburg certainly knows this, as does Breyer, Kagan and the "wise [sic] Latina" (giving her a generous benefit of the doubt. So why does she serve up this snide drivel? Does she just hate the death penalty and is giving voice to her hatred? Does she just think that, notwithstanding AEDPA, death cases simply deserve endless scrutiny?

Since none of the libs who regularly post in here will step up, I suspect that deep down they agree that this is just lawlessness. That, of course, begs the question about what else these Justices are lawless about.

In my mind, Ginsburg, Breyer, Kagan and Sotomayor deserve the deepest contempt over this nonsense. The snide remark is flawed and indefensible. And the sad thing is--everyone who thinks about it even slightly knows it's true. Has the hero worship of the judiciary in our legal culture gotten so bad that these sorts of "emperor has no clothes" moments pass unremarkably? I am reminded of the Sotomayor nomination as well. Let's face it--she looked pretty silly at times. And in one prepared moment, she asserted that Ginsburg's dissent would have affirmed the Second Circuit in the Ricci case. This was pretty dumb--even for the standards of the "wise [sic] Latina." (It seems that someone on the federal bench for 17 years would be able to figure that out.) Yet no one called her out. No one wonders whether it's a good idea to have such an obviously intellectually challenged member of the Court--other than Lawrence Tribe. (And when I say "intellectually challenged" I mean as compared to the average federal judge.)

Posted by: federalist | Dec 16, 2013 10:27:07 PM

"Given that the four more liberal Justices were obviously eager to allow the stay of this execution to remain in place, I find it notable and seemingly important that the more conservative Justices were able to get swing Justice Kennedy to vote to vacate the stay and enable the Mizzou execution to be carried out."

That is one way to look at the order. However there may be another explanation that is reasonable. They may have decided that they should overturn the stay since the 8th Circuit provided no reasoning and the full court refused to take action. However, like Congress, they may have voted along their ideological lines (at least as perceived outside the Court) with the swing Justice making the 5th vote of the opinion. Thereby allowing a dissent from the Justices more concerned with the application of the Death Penalty yet not interfering with an appropriate execution sentence.

BTW: I'm an older retired military that is interested in the legal process, especially SCOTUS, and how the decisions affect our lives as citizens since I spent 22 years under the UCMJ which affects an individual differently.

Posted by: FlameCCT | Dec 17, 2013 1:28:07 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB