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December 15, 2010

Tenth Circuit refuses to block Oklahoma's planned use of new drug in execution protocol

As detailed in this local article a federal circuit court has now "allowed Oklahoma to proceed with executions, including one on Thursday, using a new lethal injection drug." Here's more:

The 10th U.S. Circuit Court of Appeals rejected a death-row inmate’s claim that the drug, pentobarbital, could cause cruel and unusual punishment, in violation of the U.S. Constitution. The Denver-based court concluded 3-0 that the amount of pentobarbital prison authorities plan to inject as the first of three execution drugs would by itself “likely be lethal in most, if not all, instances.”

The 10-page decision clears the way for the execution of John David Duty at 6 p.m. Thursday in the Oklahoma State Penitentiary in McAlester, and of Jeffrey Matthews on Jan. 11....

Prison authorities said a few months ago they would be using pentobarbital for the first time because there is a nationwide shortage of sodium thiopental, which previously was the first of three drugs used for executions.

The Tenth Circuit's ruling is available at this link, and this matter will surely get appealed to the Supreme Court.  In the wake of Baze, I would be very suprised if the Justices get in the way of Oklahoma's execution plans.  (At the same time, I think it possible that the two newest Justices, who joined the Court after the Baze ruling, might see this case as presenting a useful opportunity to express some views on lethal injection litigation.)

December 15, 2010 at 06:23 AM | Permalink


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Given how the court reversed the Arizona stay I don't see SCOTUS commenting on this matter at all. The 10th appears to be following Baze insofar as the offender has to make a strong showing before a stay is appropriate there isn't really anything to say here.

Posted by: Soronel Haetir | Dec 15, 2010 10:23:50 AM

You would think that the language of Baze would prevent any relief on these claims but some courts keep delaying over and over.

Posted by: DaveP | Dec 15, 2010 5:09:16 PM

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