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January 25, 2006

Does the SCOTUS cert. grant create a de facto moratorium?

As first reported in this post and as detailed more fully in this new AP story, today the Supreme Court agreed to hear "a Florida death row inmate's appeal that challenges that state's lethal injection method, just hours after the court dramatically stepped in to stop the man's execution."  And SCOTUSblog now has more details here on the schedule for Hill v. Crosby, docket 05-8794.

In addition to being surprised by this development, I am wondering whether the Court's grant of cert. could or should produce a de facto moratorium on lethal injection executions nationwide at least until the Supreme Court issues a ruling in Hill.  Though I could be wrong, I do not think there is anything especially unusual about Florida's lethal injection protocol, and thus I think the cert. grant at least raises questions for any state effort to now go forward with an execution using lethal injection. 

According to this page at the Death Penalty Information Center, roughly two dozen inmates are scheduled to be executed by eight different states before the Supreme Court is likely to resolve the Hill case this summer.  Will the Supreme Court (or lower courts) halt all these executions while the constitutionality of lethal injection is being considered in Hill?  (See updates below for further thoughts.)

Related prior posts:

UPDATE:  As Lyle Denniston clarifies in this post (which has the questions presented), the issues in the Hill case before the Court "appear to be procedural disputes, and thus the Court's answers are not likely to settle whether the executioin method Florida uses is unconstitutional under the Eighth Amendment's ban on cruel and unusual punishment."

Because Hill is about procedure, I suspect that other states might feel comfortable moving forward with lethal injections while Hill is being considered.  And yet, why would the Court use this case to address these procedural issues unless it thought there is some plausible merit to the underlying claims?

ANOTHER UPDATE:  The more I think about the grant in Hill, the more confused I am.  Formally, the case really does not address the constitutionality of lethal injection protocols, so perhaps states can and should feel entirely comfortable continuing with their execution plans.  But the grant in Hill at least suggests that death row defendants might be allowed another bite (via a 1983 claim) at the Eighth Amendment apple even after exhausting their habeas rights.  And every new constitutional bite creates a new layer of litigation in capital cases.  Is that what the Justices hoped to achieve via this grant in Hill?

January 25, 2006 at 01:50 PM | Permalink


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» High Court Steps In, Blocks Fla. Execution from Unpartisan.com Political News and Blog Aggregator
Florida death row inmate Clarence Hill won a last-minute Supreme Court stay Tuesday night about an h [Read More]

Tracked on Jan 25, 2006 3:18:30 PM

» Court to hear Florida death penalty case from SCOTUSblog
The Supreme Court on Wednesday agreed to hear an appeal by Clarence Edward. Hill, a Florida death row inmate who is challenging the method that the state uses to carry out executions. The Court will consider whether Hill was entitled... [Read More]

Tracked on Jan 25, 2006 4:43:17 PM


Prof. Berman,

I don't believe a moratorium is warranted. The Court agreed to decide whether challenges to execution protocols can proceed under Section 1983. Even if the Court agrees with Hill that such challenges can proceed under Section 1983, such a ruling would not call into question the propriety of protocols adopted in connection with other executions.

Richard Samp
Washington Legal Foundation

Posted by: Richard Samp | Jan 25, 2006 2:36:40 PM

State Sen. Kyle Janek (Republican, Houston), an anesthesiologist, addressed these questions to my satisfaction. A normal surgical dose for a man weighing 220 pounds would be about 300 milligrams. Yet for lethal injection, the inmate receives 3 grams - or 10 times the normal amount based on body weight.

Posted by: Chris Malott | Jan 26, 2006 10:19:24 AM

Sorry, the dose mentioned above is sodium pentothal.

Posted by: Chris Malott | Jan 26, 2006 11:21:23 AM

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