The Volokh Conspiracy

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Volokh Conspiracy

Death and the Shadow Docket

The Supreme Court's efforts to shift procedures in death penalty litigation.


A couple months ago, the Supreme Court lifted a stay of execution in Dunn v. Ray, allowing Alabama to execute a man despite the prison's refusal to let his imam attend to him in the execution chamber. While much of the controversy about the case was about the religious discrimination angle, the Court's opinion stressed an issue of timing—the Court claimed that he had raised the issue too late in the day, and that this was an independent reason to deny his claim for relief. Four Justices joined a very powerful dissent written by Justice Kagan. (I wrote about this here.)

Then in late March, the Supreme Court granted a stay of execution in Murphy v. Collier, a similar case out of Texas (this one involving a Buddhist). Two Justices, Thomas and Gorsuch, announced their dissent. Justice Kavanaugh, who had necessarily joined the majority in Dunn v. Ray, wrote an opinion explaining why he ruled in favor of the prisoner on the religious discrimination issue. He also included a footnote announcing that the case was different from Dunn v. Ray on the timing issue because "Murphy made his request to the state in a sufficiently timely manner, one month before his scheduled execution."

Many observers were not convinced that the timing was that different, since Ray had made his request to the state two weeks before his execution, and the difference between two weeks and a month seems somewhat arbitrary. Indeed, Ray actually filed his lawsuit sooner than Dunn. Ray sued ten days before his execution; Murphy sued in state court eight days before his execution and in federal court two days before his execution. But Ray died and Murphy lived.

Because both of these decisions were dealt with on the orders list (or the "shadow docket") rather than the merits docket, the Court provided only very brief explanations of its decision. Justices Gorsuch and Thomas did not explain their dissent in the Murphy case. We also do not know how Justice Alito or Chief Justice Roberts voted in Murphy. Unlike with merits opinions, it is possible for a Justice to dissent from an order without publicly noting it, so the decision might have been 7-2, 6-3, or 5-4. And if those justices voted with the majority in Murphy, we don't know whether they agreed with Justice Kavanaugh about how to distinguish Dunn. But the combination of the cases prompted various explanations, such as the possibility that different lawyering or different amicus participation made the difference, or that the Court had felt the blowback from its Dunn decision and was quietly beating a retreat.

Then the plot thickened. In Bucklew v. Precythe, a merits case about an Eighth Amendment challenge to an execution protocol, Justice Gorsuch's opinion for the Court included a 2-page section at the end of the opinion raising general concerns about litigation that delayed the death penalty. The Court reiterated that "federal courts can and should protect settled state jugments from undue interference by invoking their equitable powers to dismiss or curtail suits that are pursued in a dilatory fashion or based on speculative theories." And it doubled down on Dunn v. Ray, including a long footnote reiterating Ray's claim had involved undue delay. So it doesn't seem like there is a retreat.

Finally, last night in Dunn v. Price, the Supreme Court divided 5-4 over another request to lift a stay. The Court lifted a stay imposed by the Eleventh Circuit because Price's complaint was too late—but he had challenged his April execution in February (though he had also "submitted additional evidence … a few hours before his scheduled execution time") rather than electing that method of execution last June. Justice Breyer wrote a dissent joined by four Justices that began "Should anyone doubt that death sentences in the United States can be carried out in an arbitrary way, let that person review the following circumstances as they have been presented to our Court this evening." He emphasized that he had just wanted to delay discussion until today, when the Justices could discuss the case in person, rather than dealing with it in the middle of the night. Ironically, the Court's own decision that Price's litigation came too late itself came too late. Apparently because the Court's decision didn't come out until after 1 am EDT, Alabama's death warrant expired and will have to be renewed in a month.

It seems clear to me that the Court is attempting to signal a significant shift in how it handles death-penalty litigation, but it is struggling over how to carry it out, and also likely divided over whether that shift is a good idea in any event. This problem is significantly exacerbated by two procedural features of the death penalty shadow docket. One is that these decisions are made with a modest amount of briefing, no oral argument, and without the Justices meeting in person to talk about them. The other is that these issues come up on a tight time frame, often in the middle of the night. Both the majority and the dissent are trying to respond to these features, but in different ways that each presuppose the correctness of their proposed solutions.

I say this as somebody with a great deal of sympathy for the Court, who thinks that the death penalty is justifiable and constitutional, but: this is no way to run a railroad. If the Court wants to regularize its death penalty procedures or stop the last-minute filings, it might be time to consider any of the following: promulgating a new Supreme Court rule setting out some deadlines or timeliness rules; adopting a general presumption of deference to the lower court in last-minute filings; adopting a general presumption of deference to the district court in last-minute filings; granting certiorari and oral argument in one of these shadow-docket cases so that some specific timeliness principles could be discussed, adjudicated, and adhered to; keeping all of the Justices in the building on execution night so that they can discuss controversial orders in the conference room. I'm sure somebody else can think of better ideas.

But I fear that muddling through these cases on the shadow docket will not produce the procedural regularity or early filing that the majority claims to want, and if it goes on much longer, it may also give Justice Breyer's accusations of arbitrariness the unfortunate appearance of truth.

NEXT: Teaching 5- and 6-Year-Olds Serious Basic Math

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  1. Conservatives and Republicans reflexively, aggressively question government's motives, role, credibility, and performance, and seek to toss sand in its gears -- until the government wishes to kill someone (often a poor person, or a black or brown person), at which point they ardently contend that government is trustworthy (if not infallible), well-meaning, empowered, and effective.

    Justices Gorsuch and Kavanaugh have recently appeared to become roughly as "often libertarian" (or "libertarianish") as is the Volokh Conspiracy.

    Carry on, clingers. So far and so long as your betters permit, that is.

    1. You're right, I reflexively question democrat sponsored infanticide and democrat endorsed antisemitism. But you're wrong, I don't think the government effectively implements the death penalty. The process is far too slow.

      1. Not to concede that I actually think libertarianism is coherent, but "democrat sponsored infanticide" sure seems to elide the fact that republicans are the ones trying to ban something. Seems like a libertarian would prefer the not banning to the banning, but hey what do I know.

        And uh, Democrats didn't elect the guy with the David Duke and Richard Spencer endorsements who referred to nazis chanting "jews will not replace us" as "good people." As a Jew, I can tell you I feel a hell of a lot safer on the left. I cant stop you from eating up AIPACs imperialist propaganda, but I can suggest that if you think libertarianism is premised on a whole bunch of natural rights, you might wonder whether the Palestinians deserve those rights too. 🙂

  2. " the unfortunate appearance of truth."

    Hard to accept that phrase, since the evidence cited in the post is fairly strong that Breyer's statement not only has the appearance of truth but is truth itself.

    One has to remember that although the opinions in the decisions and discussions like this cite the prisoner as the one arguing and filing etc, it is actually the prisoner's attorney and the prisoner is likely partially or completely ignorant of the law, the procedures or anything else regarding the appeals. And so the prisoner is punished for the sins of an attorney, in many case an inexperienced court appointed novice. One can call this many things, but calling it justice is difficult if not impossible.

    1. "And so the prisoner is punished for the sins of an attorney..."

      And precisely what is that punishment? Price participated in that murder in 1991, about 28 years ago, in a home invasion killing a minister and severely wounding his wife when they were wrapping wrapping Christmas presents for their grandchild. I guess the punishment is not being to delay his execution indefinitely.

      The only question for the court was whether he could change his method of execution from lethal injection to nitrogen hypoxia, causing further delay, because he had not chosen his method of execution by the deadline in the hopes of causing further delay.

      You are against the death penalty, that's an honest argument, but not winning that argument, you dishonestly try to change the argument to nitpicking and delaying.

  3. Wait, a general presumption of deference to the district court in last-minute filings? That seems like an odd one, given how that would influence everyone's incentives when the case is still at the Court of Appeals.

  4. What is the interest in timeliness here?

    In a civil lawsuit, delay is bad because it leaves the wronged party without a remedy while the delay continues.

    Public safety is equally well served if executions are rushed or delayed. A murderer on Death Row is safely isolated from the public.

    If relatives of the victim are bloodthirsty for revenge, the whole premise of the criminal justice system is that the offense is an offense against the state, which then preempts and prevents their vengeance.

    1. The interest of timeliness here is that you can have any number of last minute delays. If you defer to the lower court issuing stays each time, the stay becomes permanent.

      Obviously if you don't think the death penalty benefits the public, then delaying its execution does no harm. But if you take the opposite view, delay is harmful to the public, and permanent delay even more so.

      We're already up to delays of 20 years or more, 40 years would be worse. And never worse still.

      1. In most of the cases above, the delay wouldn't have been 20 or 40 years. The inmates weren't asking to live forever. They were asking to be killed with a different method, or in the presence of different people.

        1. Price committed his crime in 1991, delay is the only purpose for these continued motions and appeals.

          1. I had assumed that the purpose of the motion was to be killed by a different method, since that's what it was asking for. And the law already permits that method. Since his execution was delayed (due to a delay by the Supreme Court), he's probably going to get the nitrogen he asked for.

        2. NTOJ : In most of the cases above, the delay wouldn't have been 20 or 40 years.

          Ray 24 years, Murphy 18 years (and counting), Bucklew 23 years (not sure whether we’re still counting), Price 28 years and counting

          The inmates weren't asking to live forever.

          Of course not . They were asking for a deferral. And when that deferral is at 11.59pm they'll ask for another one. If Prof Baude's "defer to the lower court" presumption applies, you can keep this going forever. Remind me never to hire you as a debt collector.

          1. The years are from prior delays that have nothing to do with the present requests. These are people asking to be murdered in a particular way. Price will be rescheduled, but not for 40 years from now.

            "If Prof Baude’s “defer to the lower court” presumption applies..."

            That was a proposed solution to the current problem, which is inconsistency at the high court. He had another solution; promulgated deadlines at the Supreme Court. That seems like a much more efficient way to deal with this problem, rather than ad hoc. Don't you agree?

          2. NTOJ : The years are from prior delays that have nothing to do with the present requests.

            Of course, and next time, we will be able to say exactty the same !

            Tomorrow and tomorrow and tomorrow all add up. Before you know it, you've made it to the last syllable of recorded time. Unlike the person who was actually murdered.

    2. "bloodthirsty for revenge"

      28 years patiently waiting for justice. Some "thirst".

      The only bloodthirsty person here is the convicted murderer.

    3. "the whole premise of the criminal justice system is that the offense is an offense against the state, which then preempts and prevents their vengeance."

      Wrong. The premise of the justice system is that citizens give up their right to take vengeance themselves, on the promise that the state will take vengeance for them, if the evidence warrants that. The idea is not to prevent vengeance, but to make vengeance orderly, regular, and fair.

  5. adopting a general presumption of deference to the lower court in last-minute filings

    That would simply ensure the abolition of the death penalty in any zone covered by a Court of Appeals with a liberal majority. Since the CoA would always vote for a stay, and there are an unlimited number of "last minutes."

    If you want a general presumption it should be based on each CoA's "batting average" in death penalty cases. So if a CoA is batting below .500 in appeals to SCOTUS in death penalty cases, there should then be a calculation of its direction of error. Does it err more often in preventing the death penalty proceeding (too wussy) , or allowing it when it shouldn't (too rabid)?

    The presumption should be to defer to the appeal court if it is going against its previous error flow - eg a rabid court voting for a stay. But to overrule the appeal court if it is going with its previous error flow - eg a wussy court voting for a stay.) If it's batting above .500 though, then it should be deferred to anyway.

    An alternative would be to go with the automatic deference to the lower court, but when SCOTUS finally gets round to considering the substance, if it decides that the lower court should not have granted a stay then one of the erroneous lower court judges (chosen by lot) should be invited to resign, or join the convict in the chamber.

    1. Not sure why you're assuming "lower court" would mean the COA here instead of the district court, since it's the district court that does the actual factfinding and analysis in these last-minute cases.

      1. Presumably because Prof. Baude listed that deference as a separate option.

  6. Forgive me if I believe a significant part of these last minute appeals is a conscious and planned tactic of the anti-Death Penalty Bar and their allies.

    Over an extended period these lawyers argued against the former methods of execution and when new methods were introduced to overcome those objections the makers of the various drugs were pressured to withhold them from use in executions. The lawyers argue for extension after extension then turn around and say it takes too long and costs too much.

    It seems most of these last minute appeals could easily have been raised months before.

    1. You're forgiven.

      I'm as shocked as you are to find lawyers exhausting all legal avenues on behalf of their clients.

      1. They can and should exhaust all legal avenues, but they should do so on a timely basis. Especially if SCOTUS is looking unfavorably at unneeded delays.

        1. Well, if delay is going to hurt their client's case, sure, but not otherwise.

          I suppose the objective is to keep the client alive as long as possible, while maybe hoping for some miracle to stop the execution altogether.

          In that sense waiting as long as possible looks like good strategy.

    2. Pressured to withhold them?


      And it has nothing to do with the legal profession.

      For the record I am against all state executions.

      1. Including abortion and euthanasia?

  7. Four Justices joined a very powerful dissent written by Justice Kagan.

    If 4 justices joined Kagan, wouldn't that be 5 justices for Kagan's position, making it a majority opinion and not a dissent?

    BTW, your link to what you wrote previously is 404.

    1. I think the theory is that four justices joined the dissent, rather than joined Kagan, allowing Kagan to join her own dissent.

      1. What happens if a justice refuses to join her own dissent?

        1. She stays on top of the mountain?

    2. Justice Kagan is one of the four justices who joined the dissent.

  8. In the time it takes these people to put down a mad dog, I could - from scratch - produce a child and grandchild. Or at least a child and the possiblity of a child. The problem seems to be that executions aren't carried out swiftly enough in the first place, allowing for endless appeals. When they're taking the big dirt-nap, they can't appeal. Just do it.

  9. "No United States District or Court of Apeals may issue a stay of a death penalty within 72 hours of the scheduled execution except by a vote of 6 justices of this Court."

    For the rare truly needed stay, a super majority safety valve. Otherwise, a delay discouraging deadline.

    1. Not worded very well

      “No United States District or Court of Appeals may issue a stay of a death penalty within 72 hours of the scheduled time of execution. This Court may by a vote of 6 justices issue a stay based on a petition or motion filed at least 36 hours prior to the scheduled time of execution.”

      1. That rule is clearly unconstitutional.

        I don't know why it's unconstitutional: we'd have to wait to find out until the first time a state tried to invoke it. But it would be far too effective at cutting down on frivolous appeals to be allowed to stand.

        1. Funnily written, yet absolutely true.

  10. Dreadful to think of the State putting to death a person innocent as a babe unborn, despite an investigation and public trial. Of course, Reason staff whoops for the putting to death of actual babes unborn without any judicial or procedural review at all.

    It's a funny old world.

  11. Well, by the time you reach the Federal collateral challenge, you're percolating rainwater. With the further disadvantage of minimizing the finality and solemnity of state direct review and Habeas. That said, to a casual observer, it seems that the Court has been lifting lower court stays rather freely this term, so kvetching about being brought into things at the last moment might be protesting a bit too much.

    Perhaps an automatic en banc poll at the Circuit level in capital cases. That would at least allow the dust to settle after the panel holding, and any glaring (if not plain) errors to be addressed with or without briefing and reargument. This isn't my area of things, but perhaps the luck of the panel draw is one reason the cert backstop is presently so necessary.

    Alternatively, you could, you know, stop killing the prisoners.

  12. For some reason the medical profession refuses to participate in this.

    You want state executions? Firing squad, hanging, head chopping, electric chair, those work.

    1. The law could simply be changed so that tools and techniques for killing now reserved to medical professionals could also be used by executioners. Administering drugs takes training and skill but it aint rocket science.

      1. The main bit of skill needed for medical professionals with regard to the drugs used in executions is to not kill the patient, with executions you don't really have that problem.

    2. The medical profession is content to kill innocents, not those that actually deserve it.

  13. How can we execute these scum faster and more cheaply? Really, that’s the only question we should be asking ourselves. Too many Libertarians cry about personal liberty then sit around defending criminals who attacked other people’s personal liberty. If you believe government has a role at all, executing violent felons should be part of that role.

    1. Yeah, can't imagine why a group skeptical about the power of government might not be for giving the government this life-or-death power.
      Or, apparently, vastly expanding that power to apply to all violent felonies and have a lot less oversight in service of speed and expense.

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