The Washington Post

Wednesday, February 23, 2000

Death Row Inmates Caught in Procedural Trap

By Joan Biskupic

It has long been a harsh quirk of Supreme Court procedure that while it takes four votes to get the justices to hear a death row inmate's case, it takes five to temporarily stop an impending execution while they decide the case. So in rare instances over the past decades, condemned inmates ended up having enough votes on paper for a hearing but faced execution anyway for want of a fifth vote.

Yesterday, convicted murderer Robert Lee Tarver Jr., challenging the constitutionality of Alabama's use of the electric chair, came up against another procedural trap that could have consequences for death row prisoners nationwide. Four justices - John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer - said they wanted to hear his appeal. But the cryptically written order suggested they needed a fifth vote because of the type of appeal Tarver was making.

As a result, the court refused to hear his claim that the electric chair violates the Eighth Amendment mandate against cruel and unusual punishment by posing a risk of "excessive burning and trauma to the bodies of condemned prisoners." It was the second time in recent weeks that the court averted a dispute over the electric chair, which is the only means of execution in Alabama, Georgia and Nebraska. The court dropped a Florida case last month after the legislature there made injection the primary method of execution.

More intriguing for future disputes, the order in Tarver v. Alabama was the first in which the court intimated that more than four votes are needed to accept a petition for what is known as a writ of habeas corpus - one of the last resorts for death row inmates. Tarver was asking the justices to directly review his challenge to the electric chair, rather than appealing a ruling by a lower court.