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October 27, 2010

With SCOTUS blessing and foreign drugs, Arizona completes lethal injection execution

As detailed in this CNN story, which is headlined "Arizona convicted killer's last words: 'Boomer Sooner'," the state of Arizona got to conclude a few furious days of litigation with a long-planned lethal injection execution. Here are the details:

The state of Arizona executed convicted killer Jeffrey Landrigan late Tuesday after the U.S. Supreme Court cleared the way for the lethal injection, a corrections official said. The execution was carried out at 10:26 p.m. (12:26 a.m. ET), said Barrett Marson, a spokesman for the Arizona Department of Corrections.

"I'd like to say 'thank you' to my family for being here and all of my friends," were Landrigan's final words, according to Marson. He concluded with "Boomer Sooner," a cheer often used by University of Oklahoma fans....

The way for the execution was cleared after a majority of Supreme Court justices moved to vacate a federal judge's order that had temporarily stopped the execution scheduled for earlier in the day. In a 5-4 decision, the court overturned two lower court rulings.

Earlier Tuesday, the 9th U.S. Circuit Court of Appeals had sided with U.S. District Court Judge Roslyn Silver, who blocked Landrigan's execution 18 hours before it was set to happen at noon MT Tuesday (2 p.m. ET)....

But the U.S. Supreme Court ruling vacated the lower court order, saying "there is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe."... "There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect," the Supreme Court ruling said.

The decision to vacate the order was supported by Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas. Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor sided with Silver and would not have vacated the ruling.

In 1989, Landrigan escaped from an Oklahoma prison, where he was serving time for second-degree murder.  He was convicted of strangling Chester Dean Dyer in Arizona a year later during an armed burglary, and a trial judge sentenced him to death.

The one-page order in this case can be found at this link.

October 27, 2010 at 08:28 AM | Permalink


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What an emotional roller coaster ride for that inmate. I wonder if his lawyers feel any remorse for putting him through a day where he received a stay and believed he could possibly go through several more years of litigation but then that evening getting the news that the execution was about to happen. Talk about cruel and unusual punishment.

Posted by: justice seeker | Oct 27, 2010 10:09:03 AM

One thing I hadn't thought of until now is that, when the inevitable 5-4 party line decisions come, they will often have five men in the majority with three of the four dissenters women (Kagan, Sotomayor, Ginsburg). Don't know if that will be an interesting dynamic.

Posted by: Gregory | Oct 27, 2010 10:45:34 AM

10:09 - It's the lawyers fault and not the SCt's fault?

Posted by: whatever | Oct 27, 2010 10:50:45 AM

A welcome rebuke by the Supremes to a huffy and high-handed district judge who engaged in speculation and baseless attacks on Arizona, and who knew full well at the time of her erroneous ruling that her only refuge was in precisely the guessing that Baze forbids.

Posted by: Bill Otis | Oct 27, 2010 10:54:24 AM

@whatever: it's the Supreme Court's fault and not Landrigan's fault?

Posted by: guest | Oct 27, 2010 11:46:18 AM

I was wrong, Baze does have some impact.

Posted by: MikeinCT | Oct 27, 2010 11:52:14 AM

This case illustrates the immunity of LWOP. Had he received that sentence, all future escapes, all future prison murders would have absolute immunity. Prison murders likely exceed executions by a factor of 4. Now, no more escapes, no more murders of other prisoners or staff.

Posted by: Supremacy Claus | Oct 27, 2010 1:33:38 PM

"A welcome rebuke by the Supremes to a huffy and high-handed district judge who engaged in speculation and baseless attacks"

So speculative and baseless in fact that only four Supreme Court Justices agreed with him.

Posted by: Michael Drake | Oct 27, 2010 3:01:34 PM

horse pucky bill! for years the U.S GOVT have done it's damnest to prohibit importation of drugs from outside this country becasue they are UNSAFE and DANGEROUS!

guess that means thanks to this!

"But the U.S. Supreme Court ruling vacated the lower court order, saying "there is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe."

That it's NOW legal to import cheaper drugs from canada and mexico now? The govt can't have it both ways.

Posted by: rodsmith | Oct 27, 2010 3:44:50 PM

Of course a lot of people are going to take this decision as POSITIVE PROOF! the govt has been lieing though it teeth for years when they prohibited drug imports.....simply to make the drug companies here rich. it was only when they couldn't produce WHAT THE GOVT needed that suddenly out of country drugs were SAFE!

Posted by: rodsmith | Oct 27, 2010 3:46:30 PM

"So speculative and baseless in fact that only four Supreme Court Justices agreed with him." Funny, the learned dissenting Justices did not bother to write an opinion justifying their view. Hmmm. Could it be that they couldn't defend the position?

Posted by: federalist | Oct 27, 2010 5:59:09 PM

Michael Drake --

OK, if it wasn't baseless and speculative, please specify even one item of affirmative evidence that showed or even slightly suggested that the drugs Arizona proposed to use fell short of the Baze standard.

Posted by: Bill Otis | Oct 27, 2010 9:24:59 PM

Bill, I happen to think a state's intention to kill an inmate using methods or materials it has refused to disclose to a federal district court easily meets the Baze standard. (If anything is "speculative," it's the idea that you can just take the state's word for it that whatever means the state chooses to use to kill someone, it will avoid any substantial risk of serious harm.) You think that's "baseless," but even the Supreme Court majority didn't say that, and the district judge, the three Ninth Circuit panel judges, and the four remaining Supreme Court Justices who heard the case affirmatively disagree with you.

Posted by: Michael Drake | Oct 27, 2010 10:40:45 PM


You are wrong. Arizona did disclose the methods and materials, just not the manufacturer of the drug. The district judge and the Ninth Circuit judges who granted the stay did so for personal and political reasons and did not follow the law.

Posted by: justic seeker | Oct 27, 2010 10:54:03 PM

"Bill, I happen to think a state's intention to kill an inmate using methods or materials it has refused to disclose to a federal district court easily meets the Baze standard."

Amazing how rigid ideology will make you look stupid. Baze quite clearly puts the burden on the murderer to come forward with a showing of a substantial risk of serious pain. The murderer doesn't relieve that burden by coming up with some information request that the state doesn't answer. Baze is about stopping federal court micromanagement of a state's execution process. But you can't see that. Instead you rail against a state standing up for its sovereignty against some hack federal judge.

What is curious is that the dissenters on SCOTUS chose not to justify their lawlessness with an opinion. I suspect the reason is that such an opinion wouldn't write. Baze is crystal clear that the defendant doesn't get to use discovery requests to create issues--rather, with the evidence the defendant has before discovery, the defendant has to make the showing of substantial risk. As much as you guys don't like it, TFB, get Baze overruled. But make no mistake, four Supreme Court Justices acted lawlessly and didn't even have the guts to put their reasons why in writing. And remember, it's not like Justice Breyer is shy about being ridiculous. He's the guy who thinks that a lengthy stay on the row gets you off it as a matter of Con Law. And he's not shy about sharing that, ahem, reasoning. So the case for the stay (other than I don't like capital punishment, so I'll use any excuse to inhibit it reason, which, of course, is what those four really feel) must have been really bad.

A stay based on speculation after Baze--too ridiculous to support. How dumb is Judge Silver? And how dumb are the appeals court judges that swallowed that nonsense? Breyer et alia were smart enough to keep quiet.

Posted by: federalist | Oct 28, 2010 12:45:06 AM

This decision also represents Kagan's opportunity to vote. She did not disappoint those who made predictions about her sympathies.

Posted by: Supremacy Claus | Oct 28, 2010 6:43:30 AM

Rest assured Obama carefully selected his 2 Supreme court choices. Unfortunately, I think Kagan is going to fit Stevens shoes quite well. We will see in the coming term if that is true. One case isn't going to give us enough information to see.

Posted by: DaveP | Oct 28, 2010 7:00:23 AM

I would have thought Judge Rymer would have went with Arizona on this one, but in a capital case we never know.

Posted by: DaveP | Oct 28, 2010 7:02:01 AM

Michael Drake --

Federalist's post at Oct 28, 2010 12:45:06 AM, answers your observations, and I would add this as well, starting off with the core of your argument.

"I happen to think a state's intention to kill an inmate using methods or materials it has refused to disclose to a federal district court easily meets the Baze standard."

Well, yes, that's what you "happen to think," but the dispositve question is whether your thinking is backed up by any ACTUAL LANGUAGE in Baze.

Here, the state uses exactly the method and materials discussed in Baze, and no one was refusing to disclose that fact, as justice seeker (above) correctly notes (indeed, I think it's part of published Arizona law). The ONLY thing Arizona refused to disclose was the country of origin. Please quote the language in Baze that requires a state to disclose the country of origin of the materials to be used in the execution.

You won't be able to, since such a requirement doesn't exist. In order to obviate the dilatory, junk litigation of exactly the kind that went on here, Baze requires the DEFENDANT, ab initio, to produce AFFIRMATIVE EVIDENCE, which means something more than a possibility, showing that it is "sure or very likely" that the method of execution will produce severe pain.

The defendant did no such thing and didn't come close. The fact that the drugs (or one of the drugs) was produced outside the USA is a ridiculously far cry from showing that it is "sure or very likely" that it will produce severe pain.

Since you can't answer that argument, it availeth not to note that a minority of Supreme Court justices and several other, lower court judges couldn't answer it either.

P.S. I always have to smile when the liberals, who are ceaselessly wagging their fingers about how it's past time for the USA to follow the enlightened example of the rest of the world, now howl in xenophobic horror when we get our supplies from overseas.

Posted by: Bill Otis | Oct 28, 2010 8:29:49 AM

Gosh, for a minute there I was sure I'd be able to convince federalist and Bill Otis.

Posted by: Michael Drake | Oct 28, 2010 10:32:25 AM

Michael Drake,

Do you disagree that "very sure or certain to cause substantial pain" is the current standard under the law? And that it is the convict's duty to produce such evidence before a stay is to be granted?

Note, as an example, that I do think it would be pretty easy to meet this showing if electrocution were the method to be used. There is plenty of experience with accidental electrocutions, both from lightning and from man made equipment.

I would also note that the test articulated above is the most favorable to the condemned that you are likely to get out of the current Court. If it's not a workable standard nothing more favorable to the inmate is likely to be any more so. I'm just glad that they finally had the fortitude to enforce it, and without the need for reams of paper justifying it. The death penalty is one area where far too many lower courts feel they can deviate from precedent without fear.

Posted by: Soronel Haetir | Oct 28, 2010 11:27:22 AM

Michael Drake --

You have a cute way of conceding.

Posted by: Bill Otis | Oct 28, 2010 11:37:39 AM

Before jumping to the conclusion that federalism anarchy is approved by SCOTUS and therefore all anarchy is, someone please explain this section of the order.

was no showing that the drug was unlawfully obtained, nor was
there an offer of proof to that effect. The motion to file
documents under seal is denied as moot."

Is my interpretation correct in assuming if there was such a showing or offer of proof there would be a different result? For example, someone called the FD's office and said the drug was imported and that it (unlawfully?) bypassed FDA approval. If that someone (or someone else) signed a sworn declaration so stating, would the result be different? The reason it might be is because drugs not approved by the FDA are presumed to be unreliable and there are potential criminal sanctions for importing them without FDA approval for that reason. In other words, did the state get off on a technicality if, for example, there was some showing in the sealed documents but a showing was required before the sealed documents could be filed?

On the other hand, if SCOTUS did implicitly find that the states can break the FDA's laws, hello anarchy and welcome home, but it appears the order does not decide that.

Someone please repair my disillusionment with SCOTUS by explaining how the above interpretation could be the gist of the order.

Posted by: George | Oct 28, 2010 4:23:36 PM


I may be wrong here but I could also see an argument that the FDA only has authority when it comes to regulating substances that are either beneficial or that are not in fact intended to kill as part of their lawful use.

As a parallel example in this area, normally to administer these drugs at all you would need to be (or at least have on hand?) a licensed anesthesiologist. That however is for the circumstance where you want the recipient to survive the experience. I realize that such licensing is a state matter and that the states have sspecifically exempted there execution staff from these requirements. What I don't know is whether federal law also exempts state execution practices. It would not surprise me, for example, if state execution staff could be charged under the Controlled Substances Act if there weren't an exemption (which makes me believe that there is such an exemption).

If it becomes an issue I could well see Congress (even this Congress and certainly the one we are likely to have in a few months) adding such an exemption if there is not one now. Note I am talking about a general exemption from FDA authority in this area, not a specific exemption to the import ban.

Posted by: Soronel Haetir | Oct 28, 2010 6:48:45 PM

Soronel, the standard under Baze is a "substantial risk of serious harm" or an "objectively intolerable risk of harm." (Though query how anything can be *objectively* intolerable.) The language you quote is one way of meeting that standard (the opinion in that section reads "if," not "only if"), but it's not (I don't think) the standard itself. And yes, it's the petitioner who has to make the showing.

Bill, I concede that your views are incorrigible.

Posted by: Michael Drake | Oct 28, 2010 9:30:54 PM

"A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain."

That's Baze. Now how in the world is the mere fact that a drug was imported a demonstration of a risk of severe pain. The bottom line is that two things hurt the murderer. The first is that he has to make this demonstration without the benefit of discovery, and the second is that this is a prerequisite to a stay. To the pro-criminal judge, this is of course intolerable. How is it possible that they don't get to go through the process with a fine tooth comb? Well, once you understand that Baze basically says to federal judges, "No, you don't get to micromanage the states' execution process." That means no stays while discovery is conducted. And it means that executions get to happen despite a creative lawyer's manufacture of an issue.

But this all makes sense. Are we really going to have scorched earth litigation every time we have a lethal injection? We had a Baze moratorium. And the states won the battle 7-2. Piecemeal litigation shouldn't undermine that. Why this is not obvious to federal judges is beyond me.

Posted by: federalist | Oct 29, 2010 12:27:59 AM


great post. I am sure you are aware that anytime anything different arises, such as drugs from overseas as in Landrigan, the attorneys are going to exploit it all they can. The amazing fact is that they convinced so many federal judges to delay. But, I wonder if Arizona would have been a little more open about their acquisition of it, Silver would have denied a stay. Also, I think Baze would have been unanimous had Kentucky performed a consciousness check before proceeding with the last 2 drugs in their protocol. On another interesting one, the Georgia case Hill concerning mental retardation has been pending for about 4 months now awaiting whether they are going to hear it en banc. I have a opinion on what is going on there.

Posted by: DaveP | Oct 29, 2010 6:01:21 PM

Thanks DaveP. I think that the problem with disclosure is that then the people who sell them the drugs become targets of a campaign. And I personally don't think that states should kowtow to federal judges. Silver was clearly out over her skis here, but I see your point. The idea is to get to executions.

Posted by: federalist | Oct 30, 2010 1:47:09 PM

horse shit bill!

"Please quote the language in Baze that requires a state to disclose the country of origin of the materials to be used in the execution."

The LAW in this country is you cant' import drugs that have NOT been approved by the FDA. If the state refuses to disclose WHO made them and WHAT their name is JUST HOW DO YOU PROVE IT! this is about as stupid and criminal as allowing a criminal to get away with hiding a crime by KILLING THE WITNESS! SORRY it's a non-starter. This was a crime.

Posted by: rodsmith | Oct 30, 2010 3:36:12 PM

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