Application for stay of execution of sentence of death scheduled for Wednesday, January 16, 1985, presented to JUSTICE WHITE, and by him referred to the Court, denied. JUSTICE POWELL took no part in the consideration or decision of this application.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, 428 U.S. 153, 227 (1976) (BRENNAN, J., dissenting), I would grant the application for a stay of execution.
Even if I believed otherwise, however, I would stay the applicant's execution pending this Court's resolution of Heckler v. Chaney, No. 83-1878, cert. granted, 467 U.S. 1251 (1984), which has been argued to this Court and currently awaits decision. I cannot participate in the cruel irony visited on this applicant by the Court today.
Doyle Edward Skillern is one of the eight plaintiffs in Chaney. Those plaintiffs allege that lethal drugs used to carry out death sentences in Texas and Oklahoma cause "agonizing slow and painful deaths" and consequently are not "safe and effective" for their intended use in executions, as allegedly is required under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. The Court of Appeals for the District of Columbia Circuit agreed that the Food and Drug Administration has a statutory duty to investigate this claim, and indicated that it was prepared to "compel" the FDA to take action against the lethal drugs. Chaney v. Heckler, 231 U.S. App. D.C. 136, 153, 718 F.2d 1174, 1191 (1983).
The merits of the Court of Appeals' action and order in Chaney are not before us on this application. In March 1984, the Solicitor General of the United States filed an application for stay of the Court of Appeals' mandate in Chaney, arguing that the decision was "likely to interfere with state enforcement of capital punishment statutes . . . ." Application in Heckler v. Chaney, No. 83-1878, p. 6. "[I]f the mandate is not stayed, the FDA will in all likelihood be required . . . to regulate the method of capital punishment used in several states," including Texas. Id., at 10. THE CHIEF JUSTICE granted the motion for stay of the mandate based on this understanding of the effect of the judgment.
Thus the Government and this Court have proceeded in the Chaney case on the assumption that success by the plaintiffs will delay and perhaps ultimately preclude their execution by lethal injection. Yet today the Court decides to send one of those plaintiffs to his death by the very method chalflenged in Chaney. The Court obviously considers the issues in Chaney substantial enough to warrant plenary consideration. But despite our assertion of jurisdiction over applicant and his claim in Chaney, Texas subsequently has determined to execute applicant by lethal injection tomorrow morning. I am aware of no precedent that has permitted
irreparable injury to a party in a case receiving plenary consideration from this Court when the subject matter of the case is so intimately related to the threatened harm. The same question would arise if Chaney raised a question of bankruptcy enforcement law and Texas were threatening to foreclose on applicant's home despite this Court's pending consideration of the legality of the method. It is only mere chance that this applicant has seven coplaintiffs in his case; were he the only plaintiff, surely his execution would moot any decision we might render in Chaney. The fortuity of multiple plaintiffs should not skew the Court's analysis.
The applicant argued in his 42 U.S.C. § 1983 action below that, by executing him and thereby mooting his opportunity to litigate his case regarding the very method of execution at issue, Texas will deprive the applicant of his right to have his claim considered by the federal courts. The Courts of Appeals are unanimous in their discussion of the elements requiring consideration to obtain a stay under § 1983:
"(1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest. Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir. 1982). . . . While 'the movant need not always show a "probability" of success on the merits,' he must 'present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities, ...