Rose French has this story for AP on the traditional practice of conducting executions at midnight. (Hat tip, SL&P). The article barely touches on the real problem of erroneous last-minute stays and does not mention the closely related problem of single-day warrants.
Traditionally, an execution warrant names a single day on which the execution must be carried out. The warrants are issued by judges in some states and the governor in others. Just getting the warrant issued is a big deal in some places. A standard weapon in the death penalty obstruction arsenal is to hold back an argument to be sprung on a court when the date has been set, then get a stay that remains in effect until the date is missed. See, e.g., Gomez v. United States District Court (Harris), 503 U.S. 653 (1992) (per curiam). If a warrant specifies a single day, and the execution is not scheduled until noon, a judge could issue an unsubstantiated stay at 11:55 a.m., and there would only be 12 hours left to get it vacated by a higher court and carry out the execution.
The best solution is for execution warrants to set a period longer than a day, such as 72 hours beginning at noon. Then if a lower court wrongly issues a stay, a higher court will be able to vacate it in the daytime, and the execution can proceed without restarting the warrant process.
Traditionally, an execution warrant names a single day on which the execution must be carried out. The warrants are issued by judges in some states and the governor in others. Just getting the warrant issued is a big deal in some places. A standard weapon in the death penalty obstruction arsenal is to hold back an argument to be sprung on a court when the date has been set, then get a stay that remains in effect until the date is missed. See, e.g., Gomez v. United States District Court (Harris), 503 U.S. 653 (1992) (per curiam). If a warrant specifies a single day, and the execution is not scheduled until noon, a judge could issue an unsubstantiated stay at 11:55 a.m., and there would only be 12 hours left to get it vacated by a higher court and carry out the execution.
The best solution is for execution warrants to set a period longer than a day, such as 72 hours beginning at noon. Then if a lower court wrongly issues a stay, a higher court will be able to vacate it in the daytime, and the execution can proceed without restarting the warrant process.
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