The Volokh Conspiracy

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Volokh Conspiracy

Method-of-execution claims and the "courtesy fifth"


In the New York Times, Adam Liptak has an interesting story on the "courtesy fifth," the common practice at the Supreme Court of a fifth Justice voting to stay an execution if four Justices vote to grant cert in a capital case. The basic idea is that it takes four votes to grant cert but five votes to stop an execution. If four Justices want to hear a capital case but five Justices don't, the case could be granted and docketed but the petitioner executed before the case is decided. The Court would never decide the legal issue if that happens, as the case would be mooted by the execution. In recent years, there has been a Justice willing to provide a "courtesy fifth" to ensure that won't happen.

As Liptak explains, it's at least possible that this won't be happening for the Court's latest capital case grant, on method of execution claims used by Oklahoma. The granted case originally had four petitioners on death row, and the Court allowed one of them to be executed just eight days before voting to grant the petitions. We don't yet know if that means that the Court won't follow the usual practice of a courtesy fifth in the granted case for some or all of the three remaining petitioners. We'll know soon, though, as the new lead petitioner in the granted case is scheduled to be executed Thursday. We'll see if the Court grants the stay before then.

Liptak's story raises an obvious question: Why might method-of-execution claims not get the usual courtesy fifth? Recognizing that this is just speculation about a hypothetical, I wonder if the nature of method-of-execution claims might alter the dynamic to some Justices. Here's my thinking. By their nature, method-of-execution claims apply to everyone on death row who would face that method of execution. If there are multiple death row inmates involved in a case, the execution of one doesn't moot the case. And if a grant means a courtesy fifth and a stay, granting on a method-of-execution claim stops the death penalty in its entirety for every state that follows that method of execution until the cases are decided many months later. Given that methods of execution are currently in flux, and the Court might want to grant in multiple method-of-execution claims over the next few years, some Justices may worry that the courtesy fifth will amount in practice to a four-Justice-imposed death penalty moratorium for a few years while the Court works through the various methods and claims. If there are five Justices on the Court who think the relevant methods of execution are constitutional, that five-Justice majority may not want to let the four-Justice minority do that.

Of course, to readers who oppose the death penalty, a moratorium is a good thing rather than a bad thing. But for the Justices who don't see constitutional problems with the death penalty generally, this dynamic might give some Justices second thoughts about the use of the courtesy fifth for method-of-execution claims. Or at least it's a possibility. We'll know more later in the week. Stay tuned, as always.

UPDATE: Oklahoma has announced that it will be moving for a stay of its own executions in the three related cases.