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The Supreme Court’s emergency orders draw the most attention in high-profile cases where controversies directly impacting large numbers of people are at stake. Another component of the Court’s emergency rulings, however, arises in the context of capital punishment, where the Court often has the final word on whether a state or federal execution will go forward. These cases come to the Court in an emergency posture as the date of execution approaches, when there are unresolved legal challenges to the execution pending in the lower courts. If the lower courts do not stay the execution, the condemned person will ask the Court to do so. If the lower courts do halt the execution, the state will typically ask the Court to vacate that stay so the execution can proceed. These decisions form a substantial and well-known component of the Court’s emergency orders.

In recent years, the Court’s handling of emergency applications in capital cases has drawn criticism from commentators as well as from members of the Court itself. Several Commission witnesses presented arguments and proposals specific to the death penalty context, based on the premise that “death is different” because there is no opportunity to correct a legal error if an execution goes through, and because ending human life is a uniquely serious form of state action. At the extreme, the risk of legal error may compound a risk of factual error, thus raising the worry that the state may kill an innocent person; one Commission witness testified that to date “185 people have been exonerated after being wrongfully convicted of a capital offense and condemned to death.” In other cases, the concern is not that the state might execute someone who is innocent, but rather that it will violate constitutional or other legal rights and protections in the course of administering a death sentence. These cases include challenges concerning the risk of severe and needless pain and suffering due to the method of execution, the individual’s competency to be executed, or the presence of a religious advisor at the time of death. Commentators have argued that the Court should err on the side of pausing an execution if such legal challenges remain unresolved.

Yet there are those who argue, to quote Justice Thomas, that injustice can also come “in the form of justice delayed.” Executions typically are authorized pursuant to warrants that expire on a given date; if a judicial stay prevents the execution from going forward, the state often needs to obtain a fresh warrant, a process that can delay an execution by a month or more, while frustrating the state’s interest in carrying out the sentence. And a stay that remains in effect during the pendency of lower court or Supreme Court review can remain in place for considerably longer.