January 26, 2021

Supreme Court’s “Shadow Docket” Shapes Death Penalty Litigation

The U.S. Supreme Court's increasing reliance on a "shadow docket" for death penalty decisions has had a profound impact on capital litigation.

The U.S. Supreme Court's increasing reliance on a "shadow docket" for death penalty decisions has had a profound impact on capital litigation.

© User: runJMru / Wikimedia Commons / (CC BY 2.0)

Decisions from the U.S. Supreme Court's “shadow docket”—emergency orders and summary decisions not on the Court’s main docket of arguments and subsequent decisions—have had a profound impact on capital litigation in 2020. While the shadow docket is not new, the Court has increasingly turned to it in capital cases this year as the COVID-19 pandemic and federal death penalty warrant litigation have created a steady flow of applications for emergency review.

After the federal government ended a nearly two-decade hiatus in July 2019 by setting five execution dates for later that year, litigation challenging the lethal injection protocol, as well as individual claims in each prisoner’s case, worked their way through the court system. Echoing its decision-making in a series of state-level, warrant-stage death penalty cases in 2019, the Court has continued to evince a shift  in its end-stage capital jurisprudence by repeatedly vacating stays and injunctions issued by lower courts in the cases. Often via unsigned or summary orders issued late at night, the Court repeatedly cleared the way for the execution in question to go forward. These stays and injunctions would have temporarily halted the scheduled executions to allow lower courts to conduct a thorough review of ongoing factual and legal disputes.

In Daniel Lewis Lee’s case, the Court vacated the injunction that the U.S. District Court for the District of Columbia had granted to consider the legality of the government’s new method of execution. It did so in a three-page per curiam opinion, over four dissents, and Mr. Lee was executed hours later. Later the same week in July 2020, the Court issued another unsigned order over four dissents, vacating injunctions issued by the same lower court in response to a challenge to Wesley Purkey’s mental competence to be executed, as well as to the lethal injection protocol. Mr. Purkey, like Mr. Lee, was executed almost immediately following the Supreme Court’s action. And in November, Orlando Hall was executed hours after the Court vacated the D.C. District Court’s lethal injection protocol injunction in a one-sentence summary order, from which three justices dissented. In addition to these decisions taking affirmative steps in response to a Government request to vacate a lower court’s order, the Court repeatedly denied the scheduled prisoners’ requests for stays and injunctions.

Whether they are a signal that the Supreme Court is unreceptive to last-minute litigation in capital cases or are a broader indication of the Court’s view of these high-profile issues of constitutional and administrative law and statutory interpretation, these shadow docket decisions have a substantial impact on death penalty litigation. As the stream of federal executions continue , lower courts have begun working to parse these decisions in applying them to subsequent cases. Citing the Court’s decision in Mr. Lee’s case, the D.C. District Court held in August that federal death row prisoners cannot successfully mount an Eighth Amendment challenge to the use of pentobarbital. The U.S. Court of Appeals for the D.C. Circuit later ruled that this interpretation of the Court’s precedent rested on “critical legal errors.”

Related Articles

Death Penalty

Despite Lame-Duck Status, Federal Government Carries Out Three Executions in December

Last year marked a sea change in the administration of the federal death penalty. Before 2020, the federal government had only executed three prisoners since the punishment was reinstated on the federal level in 1988. But between July and December 2020, the federal government executed an unprecedented ten individuals. And, before President Biden took office on January 20, 2021, the administration carried out an additional three executions.