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November 4, 2016

Supreme Court (surprisingly?) grants last-minute stay of Alabama execution

As reported in this Washington Post article, the "Supreme Court stayed the execution Thursday night of an Alabama inmate who had been scheduled to die by lethal injection." Here is more about this interesting development and its context:

This marked the seventh time that Thomas D. Arthur — who was convicted of murder and is the second-oldest inmate on Alabama’s death row — had faced an execution date that was called off, according to the office of Alabama Attorney General Luther Strange. Arthur’s execution was scheduled for Thursday evening, but the uncertainty stretched into the night as officials in Alabama waited for the Supreme Court to consider his appeals.

Supreme Court Justice Clarence Thomas — the Supreme Court justice assigned to the 11th Circuit, which includes Alabama — said in an order shortly before 10:30 p.m. that he was halting the execution until he or the other justices issued another order. Thomas referred the case to the full court, and shortly before midnight, the justices issued an order granting Arthur’s stay request. The order included a statement from Chief Justice John G. Roberts Jr. explaining that while he did not believe this case merited a review from the Supreme Court, he had decided to vote for a stay anyway as a courtesy to his colleagues.

Roberts wrote that four of the other justices had voted in favor of staying the execution. “To afford them the opportunity to more fully consider the suitability of this case for review, including these circumstances, I vote to grant the stay as a courtesy,” he wrote. Roberts said Thomas and Justice Samuel Alito would have rejected the request; he did not explain why an eighth justice was not involved in the vote.

According to the court’s order, Arthur’s stay request would remain granted until the justices decide whether to consider the case. If they decide against it, the stay will be terminated. “We are greatly relieved by the Supreme Court’s decision granting a stay and now hope for the opportunity to present the merits of Mr. Arthur’s claims to the Court,” Suhana S. Han, an attorney for Arthur, said in a statement.

Arthur, 74, was sentenced to death for the 1982 killing of Troy Wicker, described in court records as the husband of a woman with whom Arthur had an affair. According to a summary of the case from the Alabama Supreme Court, Arthur was serving a life sentence for fatally shooting a relative of his common-law wife and, while on work release, had an affair with Wicker’s wife before killing Wicker. After three trials, Arthur was sentenced to death. One of his executions was called off after another inmate confessed to the killing, though a judge ultimately dismissed that inmate’s claim.

In appeals filed Thursday, Arthur’s attorneys argued that Alabama’s “deficient lethal injection protocol” would have had “torturous effects,” pointing to the state’s planned use of the sedative midazolam, which has been used in at least three executions that went awry. Last year, the Supreme Court upheld Oklahoma’s execution protocol in a case that hinged in part on that sedative.

Arthur’s court filings also argued that the state should execute him by firing squad, arguing that “execution by firing squad, if implemented properly, would result in a substantially lesser risk of harm” than the proposed lethal injection method. Strange’s office, in its response, noted that under Alabama state law, the Department of Corrections is only allowed to carry out executions by injection and electrocution.

Strange criticized the justices for their action late Thursday. “With all due respect to the Supreme Court, tonight’s order undermines the rule of law,” Strange said in a statement. “While I agree with Chief Justice Roberts that ‘This case does not merit the Court’s review,’ in my view, there is no ‘courtesy’ in voting to deny justice to the victims of a notorious and cold-blooded killer.”...

There have been 17 executions in the United States so far this year, according to the Death Penalty Information Center, and the country is on pace to have its fewest executions in a quarter-century. Arthur’s was one of four executions scheduled through the end of 2016, according to the center.

November 4, 2016 at 08:26 AM | Permalink


a "courtesy"---for whom? Certainly not the victim's family. This is yet another disgusting display and an appalling abuse of power by the Justices.

Arthur's execution date has been set for a while, and he's been at this for years. That the federal courts couldn't get their act together shouldn't be the problem of the State of Alabama. It appears that Alabama gave SCOTUS some courtesy by not executing at the appointed hour. It should not have waited.

Posted by: federalist | Nov 4, 2016 9:23:31 AM


More nonsense.

Posted by: federalist | Nov 4, 2016 9:36:13 AM

"Certainly not the victim's family."

If the family, as many are, was against the death penalty, would it be? Of course, maybe the family is split. Mine is on this and other issues.

I'm still wondering on the exact test regarding states (and others?) ignoring the rulings of the Supreme Court of the U.S., with special power to determine the "supreme law of the land." Is it some sort of objective test? What federalist thinks is bad? Things involving the death penalty? If some delay occurs after a span of years?

If the Chief Justice of the U.S., a member of the Reagan and Bush Administrations & appointed by Bush43 should be ignored, it surely isn't because judges appointed by Democratic judges made "bad" rulings. I personally think the best path there is to rely on the institutions in place, with justices appointed and confirmed by people "We the People" put in office and entrusted to make these decisions, sometimes likely to make mistakes.

I write this not merely to respond to one person but as a concern for others who support comparable civil disobedience. I went back/forth on this on another thread, so won't belabor the point. But, I think the matter will continue to be a matter of some concern the next few years given the strong opinions on both sides regarding who will win 11/8.

Posted by: Joe | Nov 4, 2016 10:48:47 AM

This is curious.

Roberts spoke of "four" justices wanting a stay, so you'd figure it's the four liberals, and Kennedy joining the majority in Glossip would make sense there. Roberts decides to be the "courtesy fifth" and then Alito and Thomas dissents on record. Kennedy remains silent.

The grant is somewhat surprising. Roberts being the fifth is more so.

Posted by: Joe | Nov 4, 2016 11:12:42 AM

Joe, please re-read my comment. In that comment, all I said was that Alabama should not have waited--it should have executed at the appointed hour--which is decidedly not "civil disobedience"--an application for a stay without a court order does not operate as a stay. (By the way, not making service of the court order easy isn't "civil disobedience either.) Under no stretch of the imagination did my comment state that the Court's order should have been violated.

As for "civil disobedience" generally--as I've explained to you in the past--courts don't have a whole lot of options when people or groups with enough power to defy them. Thus, courts, in no small part, rely on the goodwill of the electorate etc. to ensure that people and groups will listen to them. Thus, the courts are vulnerable to demagoguery etc. So, when they do things that are lawless (or arguably lawless), they ratchet up their vulnerability.

You keep trying to discuss this issue in a legalistic manner--wrong--this is a matter of power. And while I'd prefer to live in a society where courts are respected, I don't think the polity is powerless in the face of courts that act lawlessly. And I don't have a lot of sympathy for the idea that well, we should just follow the courts no matter what.

If the Supreme Court abolishes capital punishment, in my view, it can and should be defied. In this particular case, to be blunt, I wouldn't care if Alabama executed in the face of a stay since the stay is utterly lawless, and if I were the POTUS, I would simply pardon all involved. And I suspect Joe, you'd be aghast--but why? I would simply have been acting within the bands of my authority--so what possible complaint would you have?

Posted by: federalist | Nov 4, 2016 11:28:44 AM

Oh, and the whole victims' family thing--i.e., that because some victims' families don't want executions so therefore the whole thing is a wash---we've been down that road before.

As I have explained, there is a reliance interest in the carrying out of death sentences. Victims' families are told that justice will be carried out at a certain time and date, and then some last-minute litigation upsets that. Fine, if there is some legitimate innocence issue--not fine if it's some courtesy nonsense because people take the position that Alabama has to offer a firing squad.

Remember, Joe, victims' families didn't ask to be the family member of a capital murderer. Where a death sentence is obtained, and where the criminal has had all normal avenues of appeal, when the state sets a date, it is cruel to those who simply want justice done to stay an execution without even so much as an explanation as to why the stay meets the standards for a stay. That people take the idea that a firing squad is feasible (since not authorized by Alabama law) seriously is, to be blunt, enough to bring the legal system into disrepute. That you are willfully blind to this says a lot about you.

Posted by: federalist | Nov 4, 2016 11:40:40 AM

federalist repeatedly references victims' families. They have various ideas of "justice." As I implied, those against the death penalty very well might not find this delay "cruel."

Families don't have any "one" stance on these things. They might disagree, e.g., with federalist on what sort of last minute appeals is proper. Or, various other things he cites as disrespecting them in various respects. They might accept the process in place, including the "rule of four" rule that becomes complicated if the case is mooted while the matter is being contemplated.

Appeals are immediately for the needs of the defendant. If the claim is a loser, it should fail, even if the victims' family signs a statement saying they should take the case. In some general way victims, the good of society etc. factor in somehow, but it is more emotionalism than the specific issue at hand to use victims this way. Both sides in some fashion can do that sort of thing and it would imho be wrong either way.

Posted by: Joe | Nov 4, 2016 12:19:51 PM

Joe, you're just being obtuse. Whether or not victims' families who don't support death penalty think a stay cruel to them is irrelevant to whether the stay is cruel to those who have patiently waited for justice.

Why don't we start by getting that right?

Posted by: federalist | Nov 4, 2016 12:23:49 PM

Who are "those who have patiently waited for justice" and what is "justice"?

You appeal to victims often. They have various opinions and some are against the death penalty. THOSE victims at least very well might not think "justice" is deprived when the death penalty is blocked. I simply don't know what the "victim's family," which isn't some united block in these cases, thinks. I'm willing to guess they disagree with their assumed advocate here in various cases. I think many, even if they want him dead, simply don't care THAT much given everything they have to deal with.

As to what is "cruel," the system in place in various ways that protect defendants causes some suffering for victims. Merely needing to testify can do that, especially for children. So, it ultimately is a matter of the strength of the claim and the overall system in place. In this case, the liberals are holding things up with a fifth vote. In a case a few months back, conservatives did with Breyer as a fifth vote. Big picture, the rule of four working in this fashion with courtesy fifths very well advances justice. It isn't just about the specific case.

Posted by: Joe | Nov 4, 2016 10:14:44 PM

Justice, as I am using the term here, is the enforcement of the state's criminal judgment. (You know this, but once again, you are being an annoying little twit.)

The point, Joe, is that the an execution date has been set. So then, near the appointed hour, the rug is yanked out from under those who have patiently waited. And why? Because the federal courts cannot get their act together. You can try to obfuscate the issue as much as you like. But the fact is that many people travel a long distance to witness the execution and want it to be carried out. To jerk them around because Ginsburg, Sotomayor, Kagan and Breyer "need more time" is just cruel. You know it; I know it, so I don't know why you insist on saying otherwise.

As for the courtesy fifth here--you're just sloganeering. If four votes for a stay is all we need, then we'll always have stays. Sorry, not going to bite there.

Posted by: federalist | Nov 5, 2016 3:57:45 PM

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