Why did the U.S. Supreme Court let Missouri execute Walter Barton? It’s a mystery
Last month, a federal court delayed the execution of Missouri death row inmate Walter Barton because of new evidence pointing to his innocence, possible prosecutorial misconduct and the COVID-19 pandemic, which had hampered fact-finding efforts.
Like most capital cases, the case reached the U.S. Supreme Court days later. In a 32-word unsigned order offering no explanations, the justices allowed the execution to go forward on May 19. With several capital appeals now pending before the court, including the first federal executions in decades, it’s crucial to examine the justices’ decision-making process.
By and large, appeals from inmates facing imminent execution are rejected like clockwork, no matter the circumstances. The court fast-tracks executions without considering mitigating evidence — or offering insight into its decisions.
On occasion, justices will express ire about this haphazard behavior. When the court allowed Alabama to execute Christopher Lee Price a year ago, Justice Stephen Breyer suggested that death sentences are “carried out in an arbitrary way” and excoriated his colleagues for proceeding “in the middle of the night without … the opportunity for discussion.” When the court allowed Georgia to execute Donnie Cleveland Lance in January, Justice Sonia Sotomayor criticized the justices for permitting an “egregious breakdown of basic procedural safeguards.”
But generally, the Supreme Court says nothing. In March, the court stayed Alabama’s execution of Nathaniel Woods eight minutes before it was scheduled to go forward, only to reverse course hours later, clearing the way for his execution that evening. The public never learned what caused the stay, the reversal or how the justices voted in either instance.
Behind these decisions is a process shrouded in mystery. How was the court able to deny Lance’s final petition? It was referred to the court on Jan. 29 and denied the same day. Chief Justice John Roberts was busy presiding over the presidential impeachment hearing for the entire day, yet somehow found the time to read and reject Lance’s final plea for his life.
Who processes last-minute appeals? Reporting has suggested that they are handled by “death penalty clerks,” a rotating cast of young lawyers with no specific expertise in capital cases. Their operating procedures — do they provide the life or death recommendations? — are not publicly disclosed.
More fundamentally, we don’t know how the justices are voting. Four votes grant review of a capital case and five votes can stay an execution. But those votes are not disclosed to the public unless a rare dissent is filed. We have no idea if these are party-line votes — five of the justices were appointed by Republican presidents, and four were appointed by Democrats — or unanimous decisions.
In contrast to capital appeals, the Supreme Court willingly considers the federal government’s last-minute requests. In February, a late-night emergency stay allowed the Trump administration to implement its controversial public charge rule, an immigration policy that critics say would deny visas to poor immigrants. Sotomayor’s blistering dissent criticized her colleagues for overturning the lower court’s ruling before an appeal could even be heard. In her words: “They upend the normal appellate process.”
Sotomayor then compared the court’s behavior to its consideration of capital cases. The court permits executions when challenges are filed late, but “concerns over quick decisions wither when prodded by the Government in far less compelling circumstances.”
It’s no wonder the death penalty was on Sotomayor’s mind. The night before, the court denied an appeal from death row inmate Nicholas Sutton of Tennessee a mere 17 minutes before his scheduled execution, despite ongoing questions about factors mitigating his culpability.
The court’s behavior here is as maddening as it is opaque. In neither case did the justices hear arguments or sit for a conference. Instead, the court fast-tracked an execution without a full review — but flexed its procedural might at the last minute to protect the Trump administration.
The justices are charged with protecting the due process of law for all, including the condemned. When it comes to life and death decisions, they should show their work.
Dylan Hosmer-Quint of Columbia, Missouri, is the research associate of 501(c)(3) nonprofit New Venture Fund’s Fix the Court project, which advocates for pro-transparency reforms in the federal judiciary.