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February 1, 2010

Third Circuit approves Delaware's lethal injection protocol

A unanimous panel of the Third Circuit today rejected constitutional challenges to Delaware's lethal injection protocol.  Here is how the ruling in Jackson v. Danberg, No. 09-1925 (3d Cir. Feb. 1, 2010) (available here), gets started: 

This appeal, brought by a class of inmates sentenced to death by the State of Delaware, presents two main questions for our review.  First, we must decide how to interpret the Supreme Court’s highly splintered opinion in Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008), which upheld Kentucky’s lethal injection protocol against a challenge under the Eighth Amendment of the Constitution.  The second question, whose resolution is largely dependent on the outcome of the first, is whether the lethal injection method employed by Delaware violates the Eighth Amendment.  We conclude that, under Baze, an execution protocol that does not present a substantial risk of serious harm passes constitutional muster and that, based on the record before us, Delaware’s protocol presents no such risk. Accordingly, we will affirm the District Court’s grant of summary judgment for Delaware and dissolve the District Court’s stay.

This local press report about the ruling provides some details about the possible practical consequences of this decision:

This appears to mean that Delaware can almost immediately resume executions, which have been on hold since 2006 when the lawsuit alleging that the state's method of execution presented an unconstitutionally unnecessary risk of pain and suffering by the condemned.

Attorney General Beau Biden issued a statement saying that executions in Delaware will move forward, and that Superior Court judges can begin to schedule executions as appropriate. There are 18 inmates on Delaware's death row.

February 1, 2010 at 05:46 PM | Permalink


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After almost 4 years of litigation, Delaware gets to execute murderers. What a farce. Federal courts' irresponsibility here is unbelievable. The District Judge got a well-deserved slap in the opinion.

Posted by: federalist | Feb 1, 2010 7:40:09 PM

federalist --


Posted by: Bill Otis | Feb 2, 2010 7:54:57 PM

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