Stay of Execution

In civil cases, a stay of execution is a court order that prevents a legal judgment from being carried out until the order is lifted, by either the court that issued the stay or a superior court.

In capital cases, a stay of execution precludes the state from putting a condemned prisoner to death until the stay is dissolved. In addition to judicial stays of execution, executive officials—including some governors and the president—are authorized to grant reprieves to death row inmates. Virtually all capital prisoners in the United States receive one or more stays of execution before their cases are resolved.

At the Supreme Court level, a minority of four justices is sufficient to grant certiorari and to force the Court to conduct a full review of a case. On the other hand, only three justices are required to place a ‘‘hold’’ on any certiorari petition that they consider related to a case already pending before the Court. The purpose of the ‘‘hold rule’’ is to ensure that parties to every case still pending on certiorari will receive the benefit of whatever changes in the law the Court might announce in an upcoming decision.

When capital prisoners appeal to the Court with an execution date already set, a certiorari grant or a hold vote is meaningless unless the Court also grants a stay of execution. In other words, a case the Court decided to hear (by granting certiorari) or decided to hold (because issues in a case pending before the Court might benefit the capital petitioner) would be rendered moot by the petitioner’s execution. Absent a stay, which requires five votes, the petitioner would be killed before the Court took final action on his case.

On rare occasions, stays of execution have been issued after the condemned prisoner has been strapped to a gurney and an intravenous saline solution has begun to flow. As Justice William Brennan noted in a written dissent to the Supreme Court’s denial or certiorari and refusal to grant a stay of execution to Texas prisoner James Autry.

Mr. Autry has already endured the profound psychological torment of lying strapped to a gurney for over an hour with an intravenous needle in his arm, waiting to be put to death. That wait was brought to an end by the grant of a last-minute stay permitting him time to vindicate his constitutional rights. Following today’s decision [denying a second stay of execution], however, he will again have to under to the same indignity and psychological anguish, knowing that this time will probably be the last.

Justice Brennan’s words proved prophetic, as James Autry was lethally injected not long after Brennan’s dissent in Autry v. McKaskle, 465 U.S. 1090 (1984) was completed.

According to a pair of researchers, California’s death row prisoner-turned author, Caryl Chessman, received a telephonic stay after he was strapped into California’s gas chamber. Just before the telephonic reprieve alerted prison officials, the executioner released the cyanide tablets into the acid solution beneath Chessman’s chair. Because there was no way to halt the execution, Chessman died.

In another case involving a California death row inmate Robert Alton Harris, during a nine and onehalf- hour period, Harris received four separate stays of execution from various courts. The fourth stay of execution was issued telephonically while Harris was sealed in the gas chamber awaiting death. The state succeeded in getting all four stays of execution overturned, and Harris died in California’s gas chamber twelve hours after the entry of the first stay of execution, and only after the U.S. Supreme Court issued an extraordinary order directing lower courts to desist from issuing any further stays of execution.

RANDALL T. COYNE

References and Further Reading

• Gray and Stanley. A Punishment in Search of a Crime. Avon Books, 1989, p. 153.
• Lungren and Krotoski, Public Policy Lessons from the Robert Alton Harris Case, U.C.L.A. Law Review 40 (1992): 295, 322–326.

Cases and Statutes Cited

• Autry v. McKaskle, 465 U.S. 1090 (1984)