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Missouri Execution Stay

Today's News Scan notes an AP article on the stay of execution given to Missouri murderer Herbert Smulls and discussing his claim regarding the lethal injection drug.  However, we are informed that the case in which the stay was granted actually involves a claim concerning jury selection under Batson v. Kentucky.

Also, the stay order is unusual in that Justice Alito issued it alone.  Congress long ago vested the stay authority in individual justices, but in capital cases the assigned circuit justice routinely refers the applications to the full court.  It could be that given the last-minute nature of the application, Justice Alito took an informal poll of his colleagues and then acted according to the view of the majority, or it could be that there just wasn't time to even do that.

The Attorney General of Missouri has issued this news release:

Jefferson City, Mo. - At approximately 9:30 p.m., the United States Supreme Court issued a temporary stay of the execution of Herbert Smulls. The Court is expected to rule tomorrow on two petitions pending before it, and could then lift the stay for the execution to proceed.  The Attorney General's office will update the media as appropriate throughout the coming day.
Update:  The Supreme Court has entered this order:

The application for stay of execution of sentence of death presented to Justice Alito and by him referred to the Court is denied. The petition for a writ of certiorari is denied. The order heretofore entered by Justice Alito is vacated.
Update 2:  See Bill's later post.


The stay was lifted, but it's not clear whether Missouri will get to carry out its judgment tonight. This was an unseemly spectacle.

Taking a step back, it's clear that the Supreme Court has become the mother in a game of Mother May I with respect to states carrying out long-delayed judgments. This game (and there's no other way to characterize it) results from publicly-funded federal defender services practicing scorched-earth litigation tactics and federal judges not respecting the finality of habeas judgments and states' (and victims'). There is little doubt that the vast majority of these last-minute stay applications were strategically filed.

As for this stay, that it has been lifted is good, but the stay's taint has not been eliminated. Missouri set its execution for midnight. It was not allowed to do so. Putting aside the spectacle of Missouri, after having defended its judgment in federal courts, being ordered to stay its hand based on last-minute litigation, what of the victims' families? Haven't they been through enough? As between a murderer who has had years of fly-specking litigation and the victims' family, who should bear the risk that federal courts cannot handle last-minute litigation by the appointed hour. The question answers itself as a matter of common sense.

Justice Alito couldn't be bothered to at least explain this lawless act. There are clearly written standards for the issuance of a stay. And that it's only a few hours, in my view, is irrelevant. There are supposed to be conditions precedent to the issuance of a stay, and the Supreme Court has said so. All other federal courts are supposed to follow these rules--why not the Supreme Court? The answer is an unexpressed view that the rules don't necessarily apply to the Supreme Court and some idea that "death is different." Whatever this is, this isn't the rule of law.

Once again, the Supreme Court has demonstrated that federal courts have no business policing execution procedures.

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