In that time, the justices have voted nine times to let a death sentence blocked by a lower court be carried out, according to Stephen Vladeck, a University of Texas at Austin School of Law professor, who’s been tracking emergency requests to the Supreme Court since 2019.
“There’s a good bet they vacate the death sentence in Glossip, but that’s not going to be a bellwether for anything,” Vladeck said. “You can count on one finger the number of cases in the last few years where the state has joined the prisoner in urging the court to step in.”
Bloomberg Law, in one of the first attempts to identify the outcomes of all emergency requests to stay executions, identified more than 270 in its dockets database since Jan. 1, 2013.
The justices have agreed to block an execution 11 times, according to cases identified in Bloomberg Law’s docketing system and in reporting. And of 21 emergency requests to vacate a stay put in place by a lower court that Bloomberg Law identified, 18 were granted. That shows the court is much more likely to let executions proceed than to put them on hold.
Those findings are almost certainly undercounted due to the variable nature of death penalty court filings. The Supreme Court doesn’t require emergency applications to be labeled as a capital case, and it doesn’t have a complete and searchable list of all historical death penalty cases. Groups like the Death Penalty Information Center track executions but they don’t track all appeals.
The only stay of execution granted since Ginsburg’s death, other than Glossip’s, was in 2021, when the court blocked Texas from putting John Henry Ramirez to death while it considered whether he could keep fighting the state’s refusal to let his pastor pray out loud and touch him during his execution. Ramirez ultimately won when the court backed his religious requests in a 8-1 decision. Ramirez was eventually executed in 2022 with his religious adviser in the chamber.
Ruben Gutierrez’s execution was put on hold in 2020 after Texas prohibited his spiritual adviser from joining him in the execution chamber. He is still on death row, but his case set the stage for Ramirez to bring his claims.
The other cases also involved particular facts.
Keith Tharpe’s execution was stayed by the Supreme Court in 2017 when he argued a white juror’s racial bias tarnished his trial.
Vernon Madison’s execution was blocked when he argued the state’s doctor evaluating his competency for trial was an addict in 2018.
Russell Bucklew‘s execution also was put on hold in 2018 after he argued Missouri’s lethal injection protocol would cause him needless pain and suffering because it would rupture tumors on his head that would make him choke on his blood. Bucklew was eventually executed in 2019. Tharpe and Madison died before their executions could be carried out.
Glossip also has something highly unusual for a capital case: backing from his state’s attorney general, Gentner Drummond (R), who supports a new trial.
Delay Tactic
The court’s conservative wing has been skeptical of emergency requests in death row appeals and has accused inmates of trying to delay their execution.
When the court ruled in Bucklew v. Precythe in 2019 that the Eighth Amendment’s ban on cruel and unusual punishment doesn’t guarantee prisoners a painless death, Justice Neil Gorsuch warned courts to watch out for such attempts.
“Last-minute stays should be the extreme exception, not the norm,” he said, adding that the last-minute nature of an application that could have been brought earlier or is an applicant’s attempt at manipulation “may be grounds for denial of a stay.”
Vladeck said that blesses the practice of deciding emergency applications without resolving a prisoner’s claims, something the court’s liberal wing has often pointed to as a reason for the court to put on the brakes.
In August, a 6-3 court divided along ideological lines
to deny a stay to consider Missouri death row inmate Johnny Johnson’s bid for a competency hearing to prove he’s mentally disabled and can’t constitutionally be executed. Justice Sonia Sotomayor said the court “paves the way to execute a man with documented mental illness before any court meaningfully investigates his competency to be executed.”
Zack Smith, a legal fellow and manager of The Heritage Foundation’s Supreme Court and Appellate Advocacy Program, pushed back on the notion that the justices are denying cases without reviewing prisoners’ claims.
Death row inmates often challenge their convictions multiple ways in both state and federal courts, he said.
“It’s important to understand how much process is involved in any of these death penalty cases,” he said. “Some take multiple trips to the Supreme Court.”
At some point, after several layers of collateral review in cases in which the individual has either pleaded guilty or been found guilty by a jury of their peers, Smith said “a judgment has to be final.”
This isn’t Glossip’s first time before the high court. In 2015, the justices blocked his execution and agreed to review whether the state could use midazolam as the first drug in a three-drug lethal injection cocktail. An earlier execution had called into question whether the drug had adequate pain relieving properties and sufficiently put the prisoner into a coma.
In a 5-4 decision, the court said Glossip and the other death row inmates challenging their method of execution had to identify another way for the state to carry out their sentences. The court affirmed this holding in Bucklew in 2019.
Sotomayor called that new requirement “legally indefensible.” If a method of execution is unconstitutional because it causes cruel and unusual pain, the method doesn’t become less so because it’s the only way the state has to carry out an execution, she said.
In its most recent capital cases, Hofstra University School of Law professor Eric Freedman said, the court has made it harder for death row inmates to challenge their sentences.
He pointed to the court’s 2022 ruling in Shinn v. Ramirez, a case out of Arizona.
Before Shinn, the Supreme Court had held that federal courts could consider a capital defendant’s challenge to the quality of their state counsel, even if that claim wasn’t raised in state court. A divided court in Shinn, however, found that in doing so, the federal court is limited to the evidence introduced in the state court proceedings.
Sotomayor viewed the court’s ruling in Shinn much like she did its decision in Glossip’s case: “illogical.”
It makes no sense to say capital defendants can raise claims not raised by their attorneys but insist that they rely on evidence submitted by that attorney, who never intended to raise the claim in the first place, Sotomayor said.
In June 2022, the court made it harder for death row inmates to develop new evidence to support their appeals.
In a 5-4 ruling in Shoop v. Twyford, the majority said transportation orders that allow a prisoner to search for new evidence aren’t “necessary or appropriate” to help a federal court adjudicate a habeas corpus case when the prisoner hasn’t shown that evidence would be admissible.
Multiple Stays
Even when a capital defendant surmounts those high barriers, the Supreme Court can vacate stays where lower court’s thought the hurdles had been met.
“You never know until you get the final call from the capital case staff attorney at the Supreme Court what’s going to happen,” said Kelley Henry, chief of the capital habeas unit for the Federal Public Defender’s Office in Nashville, Tenn.
Henry represented Lisa Montgomery, the first woman executed by the federal government in almost 70 years. Montgomery was convicted of the 2004 strangling of a pregnant women she’d befriended online, cutting out her fetus with a kitchen knife, and trying to pass the baby off as her own. Her attorneys alleged that Montgomery’s torturous childhood, which included sexual, physical, and mental abuse, rendered her unable to understand the severity of her crime.
Montgomery was one of 13 individuals executed at the end of the Trump administration after a 17-year hiatus in federal executions. The Biden administration has once again paused those executions.
In the 48 hours before Montgomery’s execution on January 13, 2021—a week before the Biden administration took office—Henry’s team saw multiple separate stays of execution from lower courts get “picked off one by one,” she said, including by the Supreme Court.
On January 12, the Supreme Court vacated two of those stays, clearing the way for an early morning execution.
The Supreme Court’s intervention in Glossip’s case has been chaotic, too.
When he and other inmates challenged their method of execution in 2015, the court initially declined to block their executions., That cleared the way for Glossip’s co-plaintiff Charles Warner to be executed. After the justices agreed to hear the case, they put Glossip’s and other inmates’ executions on hold.
But after the court ruled against him, Glossip received a string of new execution dates.
Drummond, the Oklahoma attorney general, told the justices in a court filing that the state failed, at trial, to disclose evidence that star witness Justin Sneed had a serious psychiatric condition, and allowed him to hide his condition through false testimony.
The state is “not comfortable asserting that the outcome of the trial would have been the same if Sneed had testified accurately and been subject to cross examination based on his serious condition,” Drummond said in support of Glossip’s request for a stay of execution.
John Mills, Glossip’s attorney, said everyone has always agreed that Sneed, the hotel handyman, was the actual killer.
“There’s no dispute that Mr. Glossip did not kill the victim in this case,” he said.
That hasn’t gotten Glossip off death row yet. Multiple times, Mills said Glossip has had to give away all of his belongings and watch the guards practice carrying out his sentence.
“Three times he’s said goodbye to those closest to him,” he said.
Methodology: To conduct this analysis, reporters pulled all Supreme Court applications filed between Jan. 1, 2013 and Sept. 13, 2023 with the phrase “stay of execution” from the Bloomberg Law dockets database. Then, they reviewed each case and filtered out false positives. They categorized the outcome of cases based on wording in the pleading descriptions.
