Updated at 5:15 p.m.
The commonwealth of Virginia executed Alfredo Prieto at 9:17 p.m. on Thursday night, and, according to BuzzFeed’s Chris Geidner, Prieto still had an appeal pending before the Supreme Court at the time of his death.
Virginia did not violate the law by executing Prieto, as Geidner notes, because no stay of execution was in force when the death warrant became active at 9 p.m. But states typically wait for the final ruling from the Supreme Court before beginning the execution process.
In February 2014, Missouri executed Herbert Smulls while the justices were still weighing his appeal, prompting outrage from federal judges and defense attorneys. My colleague Andrew Cohen wrote at the time that state officials had “essentially divested the Supreme Court of jurisdiction by killing the litigant.” During subsequent executions, Missouri corrections officials adamantly insisted to me they would wait for the final word from the Supreme Court before starting any execution.
Prieto received a death sentence in Virginia in 2010 for the rape and murder of a woman and her boyfriend in 1988. He was also believed to have killed nine other people in California and Virginia, raping four of them. His lawyers argued Prieto was intellectually disabled, which would make him constitutionally ineligible for the death penalty.
Capital punishment is under scrutiny from both the public and the courts. Connecticut and Nebraska abolished the death penalty this year, the former by judicial ruling and the latter by legislative statute, though Nebraska voters will revisit the issue on the 2016 ballot. Pennsylvania Governor Tom Wolf also imposed a moratorium on executions in February.
In June, Justice Stephen Breyer called on the Supreme Court to revisit the constitutionality of capital punishment, and Justice Antonin Scalia told an audience at a lecture last month that it wouldn’t surprise him if the Court abolished it. The justices have already granted certiorari in six capital cases for the upcoming term, which begins Monday. None of those cases directly address the death penalty’s constitutionality.
Update: The Supreme Court officially dismissed Prieto’s petition at 5 p.m. ET on Friday afternoon, about 20 hours after his execution.
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