Tennessee lethal injection litigation splits Sixth Circuit

The capital drama in Tennessee (background here and here) took another turn this morning as the Sixth Circuit in Alley v. Little, No. 06-5650 (6th Cir. May 16, 2006) (available here) refused to reconsider its decision to lift a district court stay based on a lethal injection claim.  Five of the 12 voting judges dissented in a potent and brief opinion authored by Judge Martin.  Here are portions of Judge Martin's dissent:

The Supreme Court recently heard oral arguments in Hill v. McDonough, No. 05-8794, and is expected to issue a decision before the end of the current Term in June. The Court's decision will impact Alley's case either by allowing him or not allowing him to challenge the method of his execution pursuant to 42 U.S.C. § 1983.  If Alley is executed on Wednesday and the Supreme Court decides Hill in his favor next month, this Court will effectively have locked the barn door after the horse has already escaped.  If we uphold the stay entered by the district court, as I would, and the Supreme Court decides Hill against Alley's interests, Tennessee may proceed with the execution in June.

To me, this balancing of interests weighs heavily in favor of upholding the stay entered by the district court.  Moreover, the dysfunctional patchwork of stays and executions going on in this country further undermines the various states' effectiveness and ability to properly carry out death sentences.  We are currently operating under a system wherein condemned inmates are bringing nearly identical challenges to the lethal injection procedure.  In some instances stays are granted, while in others they are not and the defendants are executed, with no principled distinction to justify such a result. [Cites]  This adds another arbitrary factor into the equation of death and thus far, there has been no logic behind the Supreme Court’s decision as to who lives and who dies. Until the Supreme Court sorts this out, I would uphold the stay issued in this case, and all cases that come before this Court, and therefore dissent from the Court's contrary holding....

No doubt the march toward death is powerful. Currently, however, the march is anything but orderly. The current administration of the death penalty in light of the pending decision of Hill is more like a march in dozens of different directions, which I believe is more costly, more inefficient, and more arbitrary, than entering the stay and waiting temporarily for some (hopefully) clear guidance. The arbitrariness of death penalty administration is not ameliorated by the fact that Hill involves what the panel terms "a procedural matter." Rather, administration of the death penalty can only be made more arbitrary by the possibility that after Hill, some current death row inmates may be able to show in court that the practice of lethal injection violates the Eighth Amendment's prohibition of cruel and unusual punishment, while other currently similarly situated inmates will have already been put to death through a method deemed to violate the Constitution. I would wait for the Supreme Court to resolve the issue and would affirm the district court's decision entering the stay.

Some recent related posts:

• Shouldn't Hill be the very first priority for SCOTUS?
• How could (and should) Congress clean up the lethal injection mess?
• The partial de facto moratorium created by Hill
• Another state halts an execution due to lethal injection litigation
• Tennessee lethal injection back on schedule 
• Lethal injection litigation leads to a stay in Texas(!)

UPDATE:  As detailed in posts here and here at SCOTUSblog, the Supreme Court has for now dodged having to consider defendant Alley's stay request because a 15-day reprieve was granted by Tennessee's Governor.  More details are available here from Reuters.