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Supreme Court Deadlock Leaves One Dead After Court Splits on Execution

By Casey C. Sullivan, Esq. on December 09, 2016 | Last updated on March 21, 2019

The eight-justice Supreme Court has deadlocked several times since Justice Scalia's passing last February. Four-four ties have left important cases undecided (last term's Friedrichs and U.S. v. Texas opinions), seen urgent issues returned to lower courts (the remand of Zubik), and prompted litigants to settle, rather than pursue their cases.

Now, the Court's deadlock has its first actual, human victim. Yesterday, the Court split four-four over a last-minute request for a stay of execution by Ronald Smith, a convicted murderer in Alabama whose jury rejected the death penalty -- only to be overridden by the judge. The Court's deadlock allowed Smith's execution to go ahead, and he was put to death last night.

Justice Thomas's Back and Forth

Alabama is the only state that allows judges to impose a death penalty that the jury has rejected. In Smith's case, the jury rejected death seven to five, after Smith was convicted of murdering a convenience store clerk, Casey Wilson. Smith's judge then stepped in and sentenced him to die nonetheless.

Justice Clarence Thomas, who hears emergency applications from the Eleventh Circuit, which encompasses Alabama, initially stayed the execution yesterday, presumably to allow the rest of the justices to weigh in. When the justices split, Justice Thomas issued a new order denying the stay.

Smith was pronounced dead later that night. His death by lethal injection took over half an hour and appears to have been something of a rough one. During the execution, he "heaved and coughed" and occasionally moved his arms and lips, requiring repeated checks to see if he was conscious, according to Kent Faulk of, who attended the execution.

Important Issues at Play

Smith had appealed his death sentenced in the Eleventh Circuit on the grounds that Alabama's lethal injection cocktail was cruel and unusual. The Supreme Court rejected similar arguments in last year's Glossip v. Gross. In his application for a last-minute stay, Smith argued that the Eleventh Circuit had read Glossip so broadly that "no method of execution challenges can be brought in the states of the Eleventh Circuit."

Then there is the issue of Alabama's judicial overrides. The Supreme Court upheld Alabama's capital sentencing system in 1995, but struck down Florida's in January, because it allowed a judge, not a jury, to make the final determination over whether a defendant should be put to death.

The order denying Smith's application notes that Justices Ginsburg, Breyer, Sotomayor, and Kagan would have granted a stay. No reasons are given, but the four presumably thought that the constitutional issues at play were significant enough to merit further review by the Court.

So Much for the Courtesy Fifth

The deadlocked decision is also notable for another reason: the lack of a "courtesy fifth" from the Chief Justice. A courtesy fifth happens when a fifth justice sides with the minority (or here, one half of the Court) in order to say an execution until the larger issues have been decided by the Court -- even if the fifth justice wouldn't have voted that way had the margins been wider.

The courtesy fifth isn't a hard and fast rule. It's practiced sometimes, forgotten others. Since the Court has been down a justice, however, it saw a brief resurgence. And we mean brief.

Last summer, Justice Breyer joined the conservative wing of the Court to stay the Fourth Circuit's ruling allowing a transgender student in Virginia to use the bathroom that matches his gender identity, allowing the school district to preserve the "status quo" while the case was pursued before the Supreme Court.

Just last month, Chief Justice Roberts returned the favor, providing the courtesy fifth to stay the execution of another Alabama death-row inmate, Thomas Arthur, while the Court reviewed his cert petition. Arthur, who has yet to be executed still, presented very similar arguments to Smith, making the lack of a courtesy fifth in Smith's case even more noteworthy.

Smith's lawyers pointed to that inconsistency, saying that the Court's contradicting responses "clash with the appearance and reality of both equal justice under law and of sound judicial decision-making." That argument, however, wasn't enough to convince a fifth justice to switch sides, it seems.

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