Supreme Court's last order on Harris left no room for appeal

April 22, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Supreme Court, exasperated at the nightlong attempts by lawyers to save Robert Alton Harris from the gas chamber, took the unprecedented step yesterday of wiping out every federal judge's power to spare him.

The court's final order clearing the way for Harris to be executed in California was but one scene in a bizarre series in the latest drama of capital punishment.

After two earlier attempts to show how determined it was that there be no more delays in the Harris case, the court claimed for itself the sole power to make certain that the execution did

occur.

In the bluntest and furthest-reaching language ever seen in a Supreme Court capital case order, the 7-2 majority declared: "No further stays of Robert Alton Harris' execution shall be entered by the federal courts except upon order of this court."

Although the court in recent years had grown increasingly impatient, and occasionally angry, over last-minute legal maneuvering to keep death row prisoners alive, it had never done what it did yesterday.

The Supreme Court clearly has supervisory power over all lower federal judges. And it was judges in U.S.District Court and the Court of Appeals who were issuing order after order to spare Harris.

When the Supreme Court's seven-member majority finally put a stop to that, the order nullifying judicial power was confined to federaljudges, leaving California courts free to intervene at the final hour if they wished.

Since the court gave no explanation for its action and cited no specific authority, it was unclear whether the justices were reaching for abrand-new precedent to speed up the always-slow final processes toward execution.

But lower federal judges were put on notice that -- at least when the dwindling hours before execution are filled with repeated efforts to delayexecution -- they would be well advised to be very skeptical.

Although one possible interpretation was that the court was irritated only by the specifics of Harris' case, it seemed more likely that the justices wanted to speak more generally than that.

The majority laid down this mandate to lower federal courts in general: "A court may consider the last-minute nature of an application to stay execution in deciding whether to grant" delays.

MA That was written in permissive language but may well be under

stood as mandatory in nature.

The Supreme Court's action also made clear that the majority is not much interested in hearing challenges to the particular methods that states prefer for executing death row inmates.

Its orders nullified three separate attempts by lower judges to spare Harris while those courts studied claims that, in this day LTC and age, the manner of dying by lethal gas was "cruel and unusual punishment" Only Justices Harry A. Blackmun and John Paul Stevens indicated that they thought that was an issue worth taking the time to explore.

The frantic maneuvering kept the justices' law clerks and other aides up and in their offices all night, kept the justices themselves on tap at home and kept legal word-crafters churning out order after order.

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