Last week I noted the dubious opinion of the U.S. District Court in D.C. halting federal executions. Yesterday, a three-judge motions panel of the U.S. Court of Appeals for the D.C. Circuit denied the Government's motion to stay or vacate. The panel gave only an explanation of only one sentence plus citation, inadequate for the seriousness of the matter: "Appellants have not satisfied the stringent requirements for a stay pending appeal. See Nken v. Holder, 556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2018)."
As expected, the Government has taken the case to the Supreme Court, Barr v. Roane, No. 19A615.
As a matter of procedure, the petition is submitted to Chief Justice Roberts, the designated Circuit Justice for the D.C. Circuit, but the Circuit Justice invariably refers capital case stay petitions to the full court, except in emergencies.
The resumption of federal executions after 16 years would be a so huge event that even if this stay is vacated, there could be a subsequent court battle over these executions; with new, last-minute stay(s):
(1) That would be based on other claims.
(2) Whose last-minute issuance would be based on the fact that another stay was previously pending.
(3) Issued in the hope that the Supreme Court would not be able to overturn it/them in time, as in April for Christopher Lee Price.
Given the Supreme Court clear and recent condemnation of dilatory practices in capital cases, the solicitor general could request an order similar to the one the court issued in 1992 for the execution of Robert Alton Harris: that no further stays of December 2019-January 2020 federal executions shall be entered by the federal courts except upon order of the Supreme Court.
Harris’ execution was a similar big deal: the first in California in 25 years. The court issued this order because it was the third time it intervened to vacate stays of the same execution warrant.
I don’t even know whether California requested this unprecedented order or if the justices took this initiative themselves.
The solicitor general and the court should also state explicitly that the timeliness requirement applies to all grounds for stay, even if another — appealable — stay is already in force.