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May 18, 2005

Are four Justices ready to grant cert. on the constitutionality of lethal injection protocols?

Thanks to finding this post at How Appealing (which is a sentencing needle in today's filibuster haystack), I see there might be four Supreme Court Justices eager to explore the constitutionality of lethal injection protocols as a method of execution.  (For some background, see this post on the legal attack on lethal injection.)

This issue came up through the last-minute appeals by Vernon Brown, who was executed by the state of Missouri early this morning (details here).  As revealed by this SCOTUS order (on page 3), four Justices voted to issue a last-minute stay; Justice Stevens wrote a brief opinion, joined by Justices Ginsburg and Breyer, explaining that he "would grant the stay for the reasons stated in Judge Bye's dissenting opinion."  (Interestingly, Justice Souter indicated he would grant the stay, but did not sign on to the Stevens opinion.)

The reference to Judge Bye's dissenting opinion concerns the earlier disposition by the Eighth Circuit of Brown's stay application.  A panel denied the motion for a stay in Brown v. Crawford, No. 05-2130 (8th Cir. May 17, 2005) (available here), but Judge Bye wrote a fascinating 8-page dissent focused on Brown's claims about the constitutionality of Missouri's lethal injection protocol.  Here are snippets from Judge Bye's opinion:

Brown challenges the chemical protocol used by Missouri to carry out lethal injections.  He contends the three-chemical sequence used by Missouri — sodium pentothal, pancuronium bromide, and potassium chloride — creates a foreseeable risk of the gratuitous infliction of unnecessary pain and suffering in violation of the Eighth Amendment....

As Brown's district court pleadings indicate, Missouri is "using a combination of chemicals they knew or should have known would cause an excruciating death when they were telling the public it was like putting a dog to sleep, when their own veterinarians would lose their licenses for using the same chemicals on a stray."  Brown v. Crawford, No. 4:05-CV-746-CEJ, Motion for Temporary Restraining Order at 19.  Brown contends there are alternative chemical protocols — for example, a lethal dose of pentobarbital — Missouri could use to carry out an execution without unnecessarily inflicting gratuitous pain and suffering....

Missouri has not countered Brown's medical evidence with any medical evidence of its own, but rather relied solely on procedural and legal defenses to this action.  The state's failure to counter Brown's medical evidence leaves Brown's evidence uncontroverted.  Thus, this case is unlike those in which similar challenges to this three-drug protocol were rejected, because in those cases the state presented medical evidence to counter the prisoner's claim he would be conscious and suffer extreme, unnecessary pain during an execution.  On the current state of this record, where the State of Missouri has not presented any evidence to counter Brown's medical evidence, I believe it is clear Brown is entitled to a stay of his execution.

May 18, 2005 at 01:15 PM | Permalink

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» Blog Round-up - Thursday, May 19 from SCOTUSblog
Underneath Their Robes has this commentary on Justice Ginsburg's OT 2005 clerks. Douglas Berman has this piece up on the constitutionality of lethal injection protocols. And for those interested in the wine cases (Granholm v. Heald, No. 03-1116; Michig... [Read More]

Tracked on May 19, 2005 11:40:04 PM

» Blog Round-up - Thursday, May 19 from SCOTUSblog
Underneath Their Robes has this commentary on Justice Ginsburg's OT 2005 clerks. Douglas Berman has this piece up on the constitutionality of lethal injection protocols. And for those interested in the wine cases (Granholm v. Heald, No. 03-1116; Michig... [Read More]

Tracked on May 20, 2005 9:54:27 AM

Comments

This is not the first time that a prisoner facing imminent execution has been able to muster four votes for cert but not the fifth vote necessary to obtain a stay. In 1985 in Darden v. Wainwright, the Court voted 5-to-4 against a stay of execution; but out of deference and respect for the views of his four colleagues who wanted to hear the merits of the challenge, Justice Powell switched his vote at the last minute (despite his view that the petition was not meritorious) in order to permit plenary consideration of the case. In a post-Darden case (Straight v. Waingwright), Justice Brennan construed Darden to mean that, when there are four votes for cert., one of the justices not voting for cert will switch his vote and thereby enter the necessary stay. In view of yesterday's SCOTUS action, it appears that the practice described by Justice Brennan is no longer followed as a matter of course.

Posted by: Anon | May 18, 2005 2:34:48 PM

This is not the first time this practice has not been followed; see, e.g., Rook v. Rice, 107 S. Ct. 30, 33 (1986) (Brennan, J., dissenting from denial of stay).

Posted by: Anonymous Clerk | May 18, 2005 3:54:46 PM

The practice (an adverse Justice's switching sides to guarantee a stay when four Justices want to grant cert.) has been dead (no pun intended) for some years. In 1990, for example, the court granted cert in a case involving incompetency to be executed (I think the style(s) of the case(s) were Hamilton v. Texas and Hamilton v. Collins; they involved a mentally ill Texas DR prisoner named James Smith and were brought by his mother (Hamilton) as "next friend"), but could not muster four votes for a stay; Smith was executed (this was during the summer recess) and the cases remained on the docket until the Justices returned in October, at which time they were dismissed as moot. Similarly, in Herrera v. Collins (the infamous case in which the USSC held that "actual innocence," standing alone, is not a ground for federal habeas relief), the Court granted cert but no fifth vote for a stay was forthcoming; Herrera would have been executed before the Court heard his case but for the grant of a stay by a single judge of the Texas Court of Criminal Appeals. At a minimum, the practice is "no longer followed as a matter of course," and it might be better to say it's history.

Posted by: rob owen | May 18, 2005 4:13:23 PM

If the Court is going to do it the likely vehicle is the Bowling & Baze litigation out of Kentucky which has just wrapped up the trial on the issue in the last week. Bowling/Baze has the best record development yet of any LI claim, incuding clinical professors in the field of anesthesiology (sp?)

Posted by: karl | May 19, 2005 10:45:30 PM

Criminal Defense. Capital habeas.

Posted by: Kathy Lea Stinton-Glen | May 25, 2005 11:05:07 AM

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