Death Warrant Litigation: A Race Against Time

By: Destini Fernandez

Death warrant litigation can be summed up in one phrase: “you’re damned if you do, and you’re damned if you don’t.” It involves a judicially-fashioned “procedural trap”[1] wherein motions for a stay of execution are considered unripe for resolution prior to the issuance of a death warrant,[2] but characterized as rushed and last-minute delays when presented afterwards. This is because “defendants face short warrant periods, which forces them to raise, litigate, obtain a ruling, and exhaust appeals on these claims within a matter of weeks––sometimes days.”[3]

Take, for example, the claim that the method of execution violates the Eight Amendment[4] because it presents “a substantial or objectively intolerable risk of serious harm” or pain.[5] Courts would consider this argument premature if made before the death warrant was issued––and understandably so. How could a defendant assert the method of execution constitutes cruel and unusual punishment before he knows exactly how the state intends to execute him? But what is troublesome is the way in which the Supreme Court treats warrant-related claims after a death warrant is signed.

In Dunn v. Price, the Supreme Court granted the State’s application to vacate a stay of execution, despite a jurisdictional issue and the possibility that the defendant had no more than 72 hours to decide how he wanted to die.[6] The Court’s reasoning? Undue delay.[7] In deciding so, the Court overrides the discretion of two lower courts in finding there is good reason to delay the execution by 30 days on the belief that the defendant is merely trying to delay his execution. The Supreme Court makes this finding in spite of the “District court’s express finding that [the defendant] has been proceeding as quickly as possible on the issue since before the execution date was set.[8]

Price is not an anomaly. The Supreme Court again granted the State’s application to vacate a stay of execution in Dunn v. Ray because, amongst other reasons, the defendant waited until 10 days before his execution to seek relief.[9] It is true that his execution date had been set a little over three months in advance.[10] But the defendant’s request had been denied by the warden only 15 days before his execution date, and the defendant subsequently filed his complaint five days later with the appellate court.[11] And as Justice Kagan noted in her dissent, there was no way the defendant should have known his request to have his imam at his side during his death would be denied prior to receiving that denial by the warden (15 days before his execution).[12]  

Even when affirming a stay of execution, the framing by several Supreme Court justices of death warrant/stay-of-execution cases as “last-minute”[13] litigation remains pervasive. In Murphy v. Collier, the Court found that a stay in this defendant’s case was appropriate.[14] It distinguished itself from Ray by arguing that, because the defendant here had made his request a month in advance and received no response from the State, a stay was appropriate.[15] Justice Alito, who Justice Thomas and Justice Gorsuch joined in dissenting, opined that the Court receives a request to stay in almost every execution, and that these requests are nearly all filed shortly before the execution and, typically, without good reason.[16] He elaborates in a footnote that the “tactics” in this case are “just as unjustified” as those in Ray, decided only a few weeks prior.[17] He further stated that, “[i]n both Ray and this case, the Court was presented at the last minute with claims that raised complicated issues that cannot be adequately decided with hasty briefing and an inadequate record.”[18] But instead of affirming or granting a stay so these complicated issues can be properly adjudicated by the lower courts, Justice Alito championed denying the defendant relief, brushing off complicated, constitutional issues, and proceeding with the scheduled execution of the defendant.[19]

If raising a warrant/execution claim prior to an active death warrant is too early and raising warrant/execution claim after a death warrant is too late, this procedural gap leaves defendants without any real recourse.[20] The Supreme Court regularly portrays these claims untimely, manipulative, and last-minute, even though it is well within the defendants right to raise his claim. And, as Price illustrates, even warrant/execution claims raised as soon as possible remain subject to the same mischaracterization and ultimate denial of relief. How, then, can a defendant have a meaningful opportunity to raise his constitutional claims and be heard?   

[1] Melanie Kalmanson, Somewhere Between Death Row and Death Watch: The Procedural Trap Capital Defendants Face in Raising Execution-Related Claims, 5 U. Pa. J. L. & Pub. Aff. 413, 415 (2020).

[2] See id. at 424.

[3] Id.

[4] “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.

[5] Baze v. Rees, 533 U.S. 35, 50 (2008).

[6] 139 S.Ct. 1312, 1314-15 (2019) (Breyer, J., dissenting).

[7] Id. at 1314.

[8] Id.

[9] 139 S.Ct. 661, 661 (2019).

[10] Id.

[11] Id. at 662 (Kagan, J., dissenting).

[12] Id.

[13] See Ramirex v. Collier, 142 S.Ct. 1264, 1273 (2022) (“Still, this last-minute litigation had the effect of delaying Ramirez’s execution for several years.”); Gomez v. U.S. Dist. Court for N. Dist. of California, 503 U.S. 653, 654 (1992) (per curium) (characterizing the defendant’s request for a stay of execution as an “abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process.”).

[14] 139 S.Ct. 1475, 1477 (2019).

[15] Id.

[16] Id. at 1482 (Alito, J., dissenting).

[17] Id. at 1482 n.3.

[18] Id.

[19] See id. at 1478–85.

[20] See Kalmanson, supra note1, at 428.

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