Well, Here's Your 1st View of the Lethal Injection Case

Late last week, another execution was stayed - this time by the 8th Circuit. The State sought to vacate the stay, and the Supreme Court refused to do so. Justice Scalia dissented from the refusal to vacate the stay (he would have voted to let the execution proceed). Justice Alito agreed. In Justice Scalia's words:

Justice Scalia, dissenting.

I vote to grant the State’s application to vacate the stay because in my view the decision of the Eighth Circuit was based on the mistaken premise that our grant of certiorari in Baze v. Rees, ___ S. Ct. ___ (2007), calls for the stay of every execution in which an individual raises an Eighth Amendment challenge to the lethal injection protocol. The grant of certiorari in a single case does not alter the application of normal rules of procedure, including those related to timeliness. In this case, Jones’s challenge to the lethal injection protocol, which was brought nine years after his conviction and sentence became final, was dilatory.

In my first post about this topic, I guessed that this case would tell you a lot about the people who make decisions at the Supreme Court. While it's hard to argue that it is fair to wait 9 years to make a claim, still if it turns out that the lethal injection process is "cruel and unusual", I don't think it becomes less cruel and unacceptable because of a procedural misstep.

Not surpsingly, the 5th Circuit has the same view:

[T]he mere fact that an inmate states a cognizable § 1983 claim does not warrant the entry of a stay as a matter of right . . . [a] court may consider the last minute nature of an application to stay execution in deciding whether to grant equitable relief.” We do not decide whether Harris properly states a claim under § 1983, because even if he does, he is not entitled to the equitable relief he seeks. Harris has been on death row for eighteen years, yet has chosen only this moment, with his execution imminent, to challenge a procedure for lethal injection that the state has used for an even longer period of time. . . . Harris cannot excuse his delaying until the eleventh hour on the ground that he was unaware of the state’s intention to execute him by injecting the three chemicals he now challenges. See Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006) and more recently, Berry v. Epps, (No. 07-70042, October 26, 2007). On October 31st, the US Supreme Court stayed Berry's execution.

In sorta related, but largely irrelevant news: The ABA reports that executions should be halted (weeks after they already have been) (based on reports from states where executions are rare) (written by committees composed largely of death-penalty opponents). Here's a link