Stay of Execution

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A stay of execution is an order commanding that the enforcement (execution) of a lower court judgment be suspended (stayed) pending further proceedings before that court or an appeal of the judgment to a higher court. The entry of such an order is essentially a matter of judicial discretion, tempered by various principles developed in court rules and judicial precedents. In a civil case, a stay order may be conditioned on the posting of a bond to protect the interests of the prevailing party; in a criminal case a stay of a prison sentence raises the question of the defendant's entitlement to release or continued freedom, often conditioned on posting a bail bond.

In the federal court system, stays can be sought in district courts, courts of appeals, and ultimately in the Supreme Court. Generally speaking, a litigant must exhaust all possibilities of securing a stay from a lower court or courts before applying to a higher court. Stays are of two categories: a stay of a district court judgment pending an appeal to a court of appeals, and a stay of a court of appeals judgment or mandate pending application to the Supreme Court to review the judgment of the court of appeals. The Supreme Court or an individual Justice has statutory authority to grant both types of stays, provided that all efforts to secure a stay from the lower courts have failed.

Most stay applications in the Supreme Court are addressed to and resolved by individual Justices, acting in their capacity as circuit Justices "in chambers," although application can be made to the entire Court for reconsideration of an individual Justice's denial of a stay. Generally, a stay will be granted when there is a "reasonable probability" that four Justices, the minimum needed to grant review, will vote to review the case; that there is "a fair prospect" that the decision below will be reversed; that irreparable harm to the applicant will likely result if a stay is denied; and that the balance of equities, to the parties and to the public, favors a stay.

Eugene Gressman


Stern, Robert L.; Gressman, Eugene; and Shapiro, Stephen M. 1986 Supreme Court Practice, 6th ed. Chap. 17. Washington, D.C.: Bureau of National Affairs.