MIDNIGHT JUSTICE: The U.S. Supreme Court on April 21, 1992, issued many orders throughout the night in the appeal of inmate Robert Alton Harris. Activists in 1990 protest the planned execution. (Sam Forencich / AFP / Getty Images)
The U.S. Supreme Court’s recent 5 a.m. order in a Texas voting rights case was rare, but not unprecedented. And it was rare only because of a little-known effort by the court in the 1990s to curtail postmidnight motions and orders — a campaign whose impact is still being felt.
Two decades ago, death row appeals filed at the eleventh hour — literally — were taking their toll on justices and clerks, as well as everyone else involved, from prison guards to victims’ survivors and capital punishment protesters.
“The system was running the court,” not the other way around, recalls former court clerk William Suter, who started in the position in 1991. “We had to spearhead an effort to stop this night business.”
Suter, now a visiting fellow at the Hoover Institution, discussed the effort in an interview last week after hearing about the Oct. 18 predawn order in Veasey v. Perry, which included an angry dissent from Justice Ruth Bader Ginsburg. Longtime court-watchers could not recall anything like it, but Suter did.
It was April 21, 1992, when the Supreme Court issued multiple orders through the night in the death row appeal of Robert Alton Harris, the first California death row inmate to be executed in 25 years. He had murdered two teenagers in 1979 and his numerous encounters with the appeals process had wound down, or so it seemed.
As the 12:01 a.m. execution approached, numerous last-minute appeals came to fruition, causing nerve-wracking stops and starts. Four separate stays of execution were granted by district and appeals court judges in the Ninth Circuit. One was announced at 3:46 a.m. Pacific time as Harris sat in the gas chamber, waiting for the lethal pellets to drop. The U.S. Supreme Court overruled each stay, in orders beginning about 2:30 a.m. Eastern time, according to a log kept by Charles Sevilla of San Diego, a lawyer for Harris.
The final order at around 8:45 a.m. Eastern time showed the high court’s exasperation. “No further stays of Robert Alton Harris’ execution shall be entered by the federal courts except upon order of this court,” the Supreme Court stated. Harris was rushed back into the gas chamber and executed.
“The Supreme Court shut us down,” Sevilla recalled recently. At the time, Sevilla called it “one of the saddest and most bizarre nights in U.S. legal history.”
The Harris episode and other late-night legal marathons bothered Justice Sandra Day O’Connor in particular. In 1997, a year that saw 74 executions nationwide, O’Connor spoke out at the judicial conference of the U.S. Court of Appeals for the Ninth Circuit.
“We do have a problem with these death penalty cases,” O’Connor said. “I find that one of the most worrisome aspects of my job at the Supreme Court is dealing with these last-minute stay applications.”
O’Connor added, “I think dispensing justice at that hour of the morning is difficult, to say the least, and we have an obligation as you do to give our best efforts in every one of these instances and cases.”
Seventeen years later, Ginsburg was reminded of the downside of late-night decision-making after the release of her dissent in the Texas voting case. The court announced on Oct. 22 that her writing contained a factual error, which was deleted from the text.
Around the time O’Connor spoke in 1997, Suter said he contacted state attorneys general, urging them to reconsider the then-typical practice of scheduling executions at 12:01 a.m. on the day of the execution warrant. That timing gave parties, in effect, the rest of the night and through the day for legal wrangling before the warrant expired.
Several states cooperated, with Arizona moving from 12:01 a.m. to 3 p.m. Some states that rarely execute prisoners have hung on to the 12:01 tradition. Others have extended the validity of an execution warrant beyond a single day to reduce the time pressure.
“In the states that have the most executions, it is much more common now for them to be scheduled for work hours,” said Richard Dieter of the Death Penalty Information Center, who attributed the change to the high court’s ­pressure.
By the time William Jay clerked at the Supreme Court in 2004, he said, “There were not that many late nights spent on executions.” This, even though Jay clerked for Justice Antonin Scalia, who handles emergency applications from the Fifth Circuit, which includes Texas, usually the state with the most executions.
The court’s campaign to change execution times was supplemented by an influential paper written by Cynthia Rapp for the Institute for Court Manage­ment at the National Center for State Courts. Now a deputy clerk, Rapp was then a staff attorney at the high court for emergency applications — a position created by Suter to “get our arms around the situation,” he said.
Rapp surveyed the timing of executions in capital-punishment states, and examined the impact late-night executions have on prison staff as well as ­judges and others involved in the appeals process.
“Uncertainty about whether an execution will take place or not makes it hard for the team to remain mentally and emotionally ready,” Rapp wrote. “One officer even likened the experience to torture.”