“Last-minute stays should be the extreme exception,
not the norm, and ‘the last-minute nature of an application’ that ‘could have
been brought’ earlier, or ‘an applicant’s attempt at manipulation,’ ‘may be
grounds for denial of a stay,’” Gorsuch wrote in his 5-4 majority opinion in Bucklew v. Precythe.
Gorsuch’s two-page commentary at the end of his
majority opinion was “troubling dicta” that was “wholly irrelevant” to the
issue before the court, Sotomayor said in her dissent.
“I am especially troubled by the majority’s
statement that ‘last-minute stays should be the extreme exception,’ which could
be read to intimate that late-occurring stay requests from capital prisoners
should be reviewed with an especially jaundiced eye,” Sotomayor wrote.
The issue before the justices was not delays in
execution, but whether Russell Bucklew’s proposed alternative to execution by
lethal injection—nitrogen hypoxia—met the high court’s test of a feasible,
reduced risk of severe pain. The majority held it did not.
Gorsuch, joined by Chief Justice John Roberts Jr.
and Justices Clarence Thomas, Samuel Alito Jr. and Brett Kavanaugh, ended his
31-page opinion with two pages devoted to last-minute execution stays.
Gorsuch cited as an example the court’s decision on Feb. 7 in Dunn v. Ray, a denial of an
execution stay that would draw criticism from conservatives and liberals.
The divided court vacated a stay of execution
imposed by a federal appellate court that wanted to hear Domineque Ray’s
religious discrimination claims. Ray argued the prison’s refusal to allow an
imam to attend him during his final moments violated the First Amendment’s
establishment clause.
The high court, over the dissenting votes of
Justices Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor,
gave no reason for its unsigned ruling. The majority only cited a 1992 decision
holding that “a court may consider the last-minute nature of an application to
stay execution in deciding whether to grant equitable relief.”
The decision triggered widespread criticism, which
snowballed after the court, with Gorsuch and Thomas dissenting, on March
28 granted a stay of execution to a Texas inmate named
Patrick Murphy. In that case, Murphy challenged the prison’s refusal to allow
his Buddhist spiritual advisor to accompany him into the death chamber.
Kavanaugh joined the majority to block Murphy’s execution.
There was little significant difference between the
Ray and Murphy timelines in seeking stays of their executions, according to
their lawyers. Some court watchers suggested the court’s grant in Murphy’s case
may have been a reaction to the criticism the court received after
denying Ray a stay to allow his imam to be by his side.
In a lengthy footnote on Monday, Gorsuch did not
back down from the Ray decision. Gorsuch accused the Bucklew dissenters
of “seeking to relitigate” Dunn v. Ray. He laid out for the first time the
nature of the delay in Ray’s case that prompted the majority to vacate the
lower court stay.
Gorsuch claimed that a state statute had put Ray
“long on notice” that there was a question as to whether his adviser could go
into the execution chamber or had to remain outside.
“Yet although
he had been on death row since 1999, and the state had set a date for his
execution on November 6, 2018, he waited until January 23, 2019—just 15 days
before the execution—to ask for clarification,” Gorsuch wrote. “He then brought
a claim 10 days before the execution and sought an indefinite stay. This delay
implicated the ‘strong equitable presumption’ that no stay should be granted
‘where a claim could have been brought at such a time as to allow consideration
of the merits without requiring entry of a stay.’”
Before addressing what she described as Gorsuch’s
“skewed view of the facts” in the Ray case, Sotomayor, in her dissenting
opinion, wrote that Gorsuch’s comments on last-minute stays if “mistaken for a
new governing standard, they would effect a radical reinvention of established
law and the judicial role.” The courts’ equitable discretion in handling stay
requests, she said, is governed by “well-established principles.”
Sotomayor then went footnote to footnote with her
challenge to Gorsuch’s view of the Ray facts.
“Even today’s belated explanation from the majority
rests on the mistaken premise that Domineque Ray could have figured out sooner
that Alabama planned to deny his imam access to the execution chamber,”
Sotomayor wrote. And she quoted from Kagan’s dissent, which noted that “the
prison refused to give Ray a copy of its own practices and procedures”
that would have clarified the degrees of access by an imam or a Christian
spiritual adviser.
Justice Stephen Breyer, who wrote the main dissent
in Monday’s case, more briefly at one point took on Gorsuch’s use of the Ray
decision to address delays in executions.
“In the view of some of us, the prisoner’s
claim—that prisoners of some faiths were entitled to have a minister present at
their executions while prisoners of other faiths were not—raised a serious
constitutional question,” Breyer said. “And therein lies the problem. It might
be possible to end delays by limiting constitutional protections for prisoners
on death row. But to do so would require us to pay too high a constitutional
price.”
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3 comments:
Nice article..worth reading it!!
Very Nice article.
This is a very interesting and critical article on the Supreme Court's recent decisions on death penalty cases. I appreciate the author's analysis of the arguments and opinions of the justices, especially the clash between Gorsuch and Sotomayor over the issue of last-minute stays. I also agree with the author's implication that the court's majority is showing a disregard for the constitutional rights and dignity of the condemned inmates. I think this article is very important for anyone who cares about the fairness and humanity of the criminal justice system.
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