Get Me To The Gurney On Time

The first problem with informal agreements based on everyone's good faith is that they're informal. The second problem is that they're based on everyone's good faith. They're gentlemen's agreements that work only as long as everyone is willing to obey the rules of gentlement's agreeents. Thse are a smart ass lawyer's versions of Sam Goldwyn's comment that "a verbal contract isn't worth the paper it's written on."

It takes the votes of four Supreme Court justices to hear a case. It takes five to grant a motion. During the late stages of a death penalty case, that can be the difference between life and death. It's not enough to have four justices agree the case should be heard. There has to be a fifth to get a stay that will allow the defendant to live long enough for the case to be heard. Traditionally, that was but a theoretical issue. Justice Brennan explained.

A minority of the Justices has the power to grant a petition for certiorari over the objection of five Justices. The reason for this "antimajoritarianism" is evident: in the context of a preliminary 5-to-4 vote to deny, 5 give the 4 an opportunity to change at least one mind. Accordingly, when four vote to grant certiorari in a capital case, but there is not a fifth vote to stay the scheduled execution, one of the five Justices who does not believe the case worthy of granting certiorari will nonetheless vote to stay; this is so that the "Rule of Four" will not be rendered meaningless by an execution that occurs before the Court considers the case on the merits.

And so it worked. The fifth vote for a stay was a courtesy, the result of an informal agreement based on everyone acting in good faith.

At least, it worked until that good faith failed and all that was left was the unwritten and unenforceable agreement. The victim was James Edward Smith. Justice Brennan laid it out once again.

For the first time in recent memory, a man will be executed after the Court has decided to hear his claim.

They just couldn't get the fifth vote for a stay.

Variations on that theme come up with at least some regularity as Adam Liptak made clear in this column from the NY Times a couple of years ago.

All of that is prelude to a different but related problem, one that should reach its depressing denoument as I type this. John Allen Muhammad is to be killed this evening by the good people of Virginia. I guess it's not much of a surprise that he isn't getting relief from the courts or from the governor.

After all, the courts found it irrelevant that it wasn't until some two and a half years after he was convicted and senteced that Virginia finally turned over to the defense 30,000 pages (that's thirty thousand pages, 30,000) of material it had just, well, shucks, not bothered to turn over despite its obligation to do that before trial (discussed more fully here). And the governor had pretty much ruled out clemency during a radio broadcast even before Muhammad's lawyers asked for it.

But that's just the usual sort of unseemliness that we see in the criminal justice system generally and in the capital system specifically. Here, there was something else. Muhammad had a petition pending before the Supreme Court. It wasn't anything extraordinary. He wasn't trying for an end run around the rules, wasn't filing a duplicate or successor or late petition. He was asking the Court to hear an appeal from the denial of his first, properly and timely filed, petition for writ of habeas corpus.

In the normal course of things, that petition would have been discussed (and probably rejected) at the Court's regular conference on November 24. But Virginia decided to kill Muhammad today, November 10. The Court could have issued a stay and considered the petition as it commonly would. Instead, it bowed to Virginia. Justice Stevens, who went along with it, expressed his unhappiness.

This case highlights once again the perversity of executing inmates before their appeals process has been fully concluded. Under our normal practice, Muhammad’s timely petition for certiorari would have been reviewed at our Conference on November 24, 2009. Virginia has scheduled his execution for November 10, however, so we must resolve the petition on an expedited basis unless we grant a temporary stay. By denying Muhammad’s stay application, we have allowed Virginia to truncate our deliberative process on a matter—involving a death row inmate—that demands the most careful attention.

Ginsburg and Sotomayor joined in Stevens' comments.

This isn't about John Allen Muhammad. It isn't about the death penalty. It's about a degree of certitude and self-righteousness on Virginia's part - and a deference by the Court. it's about a rush not to judgment but to execution. Hurry up and kill. Can't wait. Can't provide time for the system to play itself out, for everyone to be sure. We're sure, after all.

Kent Scheidegger says that this case, the Fort Hood shootings, and the bizarre alleged serial killer in Cleveland are "strong examples of why we need capital punishment." I don't know that they're actually strong examples of much of anything except that ours is a remarkably violent society.

Last time I looked at the numbers, Virginia took less time, on average, from sentencing to execution than any other state. I do understand why a state would want to get it done. But there really is something unseemly about wanting to get it done before the courts have reviewed the case.

Why the rush? What is it they fear, exactly, might happen if the Supreme Court got to act on its own schedule? And why do those nine folks with life tenure allow themselves to be bullied this way?

Inquiring minds want to know.

Addendum

Terry Lenamon rightly suggests that, especially given the truncated review in the Supreme Court, Governor Kaine should have stepped in and called at least a temporary halt. He didn't.

John Allen Muhammad has now been killed.

Y'all feel better now?