dissenting.
Adhering to my view 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 (1976) (Brennan, J., dissenting), I would grant the stay application and the petition for certiorari and would vacate the sentence in this case.
But even if I did not hold this view, I would extend the stay of execution in this case until the Court acts on Straight’s petition for certiorari in No. 85-6947. In that petition, Straight contends that the State of Florida’s death penalty statute and the cases interpreting it prior to his trial resulted in the failure of the trial court to consider nonstatutory mitigating factors in violation of this Court’s holding in Lockett v. Ohio, 438 U. S. 586 (1978). This issue is similar to one presented in Darden v. Wainwright, No. 85-5319, a case that has been argued but not yet decided by the Court, and other petitions that are before the Court that have not yet been acted upon.
It would be disturbing enough if the Court were to allow this execution to proceed without acting on the merits of Straight’s petition for certiorari, since this would allow him to be executed despite the continuing possibility of relief from this Court. What the Court does here is far more alarming, however. For the fact is that in my view the Court has acted on the merits of Straight’s petition. Four Justices have voted to “hold” Straight’s petition because they believe that it presents an issue sufficiently similar to Darden to warrant delaying disposition of Straight’s case until a decision is reached in that case. To deny a stay of execution in the face of this “hold” is, in my view, a wrong to which I may not be a silent witness.
A minority of the Justices has the power to grant a petition for certiorari over the objection of five Justices. The reason for this “antimajoritarianism” is evident: in the context of a preliminary 5-to-4 vote to deny, 5 give the 4 an opportunity to change at least one mind. Accordingly, when four vote to grant certiorari in a *1135capital case, but there is not a fifth vote to stay the scheduled execution, one of the five Justices who does not believe the case worthy of granting certiorari will nonetheless vote to stay; this is so that the “Rule of Four” will not be rendered meaningless by an execution that occurs before the Court considers the case on the merits.
A “hold” is analogous to a decision to grant a petition for certiorari. The Court’s “hold” policy represents the conviction that like cases must be treated alike. Like the “Rule of Four,” it grants to a minority of the Court the power to prevent the majority from denying a petition for certiorari when the minority is persuaded that the issues or questions presented in the case to be held are similar to a case that the Court is to decide. The principle is apparent: whether an individual obtains relief should not turn on the fortuity of whether his papers were the first, the second, or the tenth to reach the Court. What counts is the merits. A vote to “hold” is a statement by a number of Justices that the disposition of the granted case may have an effect on the merits of the case which is to be held. The fact that a majority of the Justices disagree with the decision to “hold” does not warrant subversion of the “hold” rule any more than does disagreement by five with the decision to grant a petition for certiorari justify departure from the “Rule of Four.” It is unthinkable to me that the practice that four votes to grant certiorari trigger an “automatic” fifth vote to stay an execution should not apply to a “hold” when a man’s life is in the balance.
For the Court to deny a stay to a petitioner who is under sentence of death, and whose petition four Justices have determined to hold, is to give a new and gruesome meaning to the old notion of the “race to the courthouse.” It is to distinguish as an initial matter between those who may live and those who will die by rewarding with a stay of execution that litigant whose lawyer files his papers first. It is to divide litigants arbitrarily into the condemned and the spared on the basis of what amounts to little more than a footrace. It is to reject those first principles of justice that ultimately define a system of law: the principles of uniform application of rules, of consistency, of evenhandedness, of fairness.
I dissent.