
    December 11, 1984
    No. A-445.
    Stephens v. Kemp, Superintendent, Georgia Diagnostic and Classification Center.
   Application for stay of execution of sentence of death, presented to JUSTICE POWELL, and by him referred to the Court, denied.

JUSTICE BLACKMUN and JUSTICE STEVENS dissent and would grant the application for stay of execution pending the ultimate resolution of the cases now pending in the United States Court of Appeals for the Eleventh Circuit and cited in JUSTICE BRENNAN'S dissent, immediately post.

JUSTICE BRENNAN,

with whom JUSTICE MARSHALL joins,

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 application and vacate the death sentence in this case. But even if I believed otherwise, I would at the very least stay this impending execution indefinitely. As I argued in my dissent from the Court's earlier vacation of its stay in this case, a person should not be executed while the constitutionality of his sentence is in doubt. Ante, p. 1043. Accordingly, I would stay Stephens' execution pending the ultimate resolution of Ross v. Hopper, 716 F. 2d 1528 (CA11 1983), rehearing en banc granted, 729 F. 2d 1293 (1984); Spencer v. Zant, 715 F. 2d 1562 (CA11 1983), reconsideration en banc stayed, 729 F. 2d 1293 (1984); and McCleskey v. Zant, 580 F. Supp. 338 (ND Ga.), hearing en bane granted, 729 F. 2d 1293 (CA11 1984).  