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SMITH v. KEMP

December 14, 1983

SMITH
v.
KEMP, SUPERINTENDENT, GEORGIA DIAGNOSTIC AND CLASSIFICATION CENTER



ante, p. 1003

Petition for rehearing denied. Application for stay of execution of sentence of death pending disposition of a petition for rehearing, presented to JUSTICE POWELL, and by him referred to the Court, denied.

JUSTICE BRENNAN and JUSTICE MARSHALL, dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 231 (1976), we would grant the application for stay of execution, grant the petition for rehearing, and vacate the death sentence in this case. JUSTICE STEVENS, dissenting.

 In my opinion all executions in Georgia Should be postponed until the United States Court of Appeals for the Eleventh Circuit renders its en banc decision in Spencer v. Zant, 715 F.2d 1562 (1983). See Sanders v. United States, 373 U.S. 1, 15-17 (1963). The "ends of justice would not be served" by the execution of this petitioner while the Court of Appeals is deciding the merits of the claim he asserts. I therefore would grant the stay application.

19831214

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