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 Until very recently, such debates centered on death penalty cases in the states, with little attention paid to federal executions, for the simple reason that federal executions are far less common. Between 1963 and 2001, the federal government did not execute anyone, and it executed only three people between 2001 and 2019. By contrast, the states have executed more than 1,500 people since 1973. In the months before the Commission’s formation, however, a spike in federal executions gave rise to multiple emergency applications to the Court. Commission witnesses and commentators cited these rulings, in addition to state cases, as salient examples of problems with the Court’s handling of its emergency orders.

The federal executions at issue occurred during the last six months of the Trump administration, when the Department of Justice sought the execution of thirteen individuals. Legal challenges were filed in all thirteen cases, including claims that the Department’s proposed execution plan violated federal statutes and constituted cruel and unusual punishment under the Eighth Amendment. In multiple instances, the lower federal courts noted that the challenges raised significant and complex issues, and in some cases they concluded that the challengers were likely enough to succeed on the merits to warrant a stay of execution to permit time for the courts to resolve the issues. At the Supreme Court, one or more requests for emergency relief were filed in each case, sometimes from the government seeking to vacate a lower court stay and sometimes from the person seeking the stay. The combined effect of the Court’s orders in these cases was to permit all thirteen executions to go forward. In most cases, it did so in brief orders that gave no rationale for its decision, though multiple dissents were filed. A Commission witness defended these rulings on the ground that the challengers did not convince the Court that they were likely to succeed on the underlying merits. Other Commission witnesses criticized the Court’s handling of the cases. So did Justices Breyer and Sotomayor. In Justice Sotomayor’s view, the way the Court made these decisions, “with little opportunity for proper briefing and consideration, often in just a few short days or even hours,” and often without a public explanation of their rationale, “is not justice.”

In their testimony before the Commission, several witnesses argued that because in capital cases the stakes of error are asymmetrical, the Court’s approach to stays of execution should be asymmetrical as well. “[T]here is no symmetry between an erroneous execution and an erroneous non-execution,” one witness reasoned. “If proper attention is given to irreparability [of harm] and the need to preserve the judiciary’s ability to decide a case, then the Justices should be much more willing to give shadow-docket orders that delay an execution than shadow-docket orders that accelerate an execution.” Below, we address two sets of reforms proposed by witnesses taking this view of asymmetrical stakes.