Attorneys for Tharpe sought to stop his execution, which had been set for Tuesday evening, writing in a Supreme Court filing that “racism played [a] pivotal role in his death sentence.”
According to Tharpe’s attorneys, a juror in his case used the n-word to describe Tharpe and said he had voted for death because Tharpe was a “n——.” The juror also told Tharpe’s attorneys that Tharpe had killed “good black folk” and wondered whether black people had souls.
Attorneys for Tharpe at the time said the juror confirmed that he had made the statements. But when attorneys returned for a follow-up visit, the juror said he had been drinking when he spoke with them and did not understand why they had visited.
State prosecutors arguing against the stay request on Tuesday wrote that the juror testified that his comments were “taken all out of proportion” and said he did not mean the n-word as a racial slur. They also wrote that the juror, who was deposed, did “not show evidence of racial animus towards black individuals,” saying that he thought that black and white people had equal intelligence and agreeing that racial discrimination was a problem, among other things.
“There was no evidence in any of the other juror affidavits or depositions that racial bias was a part of the deliberations,” the office of Georgia’s attorney general wrote in a filing.
In addition to the racial bias claim, attorneys for Tharpe have argued that he is “intellectually disabled and ineligible for execution,” something the state also disputed.
Tharpe was scheduled to die by lethal injection at 7 p.m. Tuesday at a state prison about 50 miles south of Atlanta. However, as that hour came and went, attorneys for Tharpe and the state of Georgia were sending appeals and responses to the Supreme Court, arguing about whether the execution could proceed.
The Supreme Court released its order shortly after 10:30 p.m., granting Tharpe at least a temporary reprieve.
In the order, the court stayed Tharpe’s execution until the justices decide whether to accept his case. The stay will terminate automatically if the justices decide not to take the case, the order stated, or if they take the case and issue a judgment.
“We are extremely thankful that the Court has seen fit to consider Mr. Tharpe’s claim of juror racial bias in regular order,” Brian Kammer, an attorney for Tharpe, said in a statement.
Three justices recorded dissents, saying they would have denied the petition to have the court hear Tharpe’s case: Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch, the court’s newest member. Gorsuch has quickly established himself as a forceful conservative on the court. His first vote to create a conservative majority on the court came when the justices denied requests from Arkansas death-row inmates to halt their executions earlier this year.
The Supreme Court recently heard a high-profile case dealing with racial bias and the death penalty. In February, the court ruled in a Texas death-row case that the inmate’s sentencing was infected with racial prejudice after an expert testified that black people were more violent than others, which the court said unfairly tainted the jury’s decision about the punishment.
“Some toxins can be deadly in small doses,” Chief Justice John G. Roberts Jr. wrote in that case, Buck v. Davis.
A Georgia state court order had said Tharpe’s execution could occur over a seven-day period beginning Tuesday at noon and ending a week later, on Oct. 3.
Tharpe and his attorneys had also sought a reprieve from the state before the Supreme Court issued its order Tuesday. They turned to a Georgia state board because in Georgia only this board, and not the governor, can grant clemency. On Monday, the board denied Tharpe’s request to commute his death sentence to life in prison without parole.
Executions have become less frequent nationwide, although a handful of states — including Georgia — still regularly schedule lethal injections. There have been 18 executions nationwide this year, nearly equal to the 20 carried out last year. It is expected that more death sentences will be carried out this year than 2016, in part because states such as Arkansas, Florida and Ohio have resumed executions. Georgia has carried out one execution in 2017. Last year, Georgia executed nine inmates, the most of any state nationwide.