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An Improper Stay

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Sometimes an otherwise unremarkable statement is remarkable for who says it:

The state court decided under state law that the execution could proceed while respondent's constitutional claim was pending. Accordingly, the District Court should not have entered a stay to give the state court additional time it decided was not warranted.

This statement is by Justice Stevens, joined by Justice Ginsburg, concurring in the order vacating the stay in the Washington State capital case of Vail v. Stenson. Why the separate opinion? The next sentence reads, "In light of that procedural error, and on that basis alone, I vote to grant the application to vacate the stay of execution entered by the District Court." (Emphasis added.)

The other bases appear to be the merits of the lethal injection challenge. In any case, it is good to have a unanimous statement that giving the state court more time is not a valid basis for a federal-court stay.

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Let's hope that the current Washington execution date for Cal Brown is not subject to any silly last-minute stays. Brown is a poster child for the death penalty, and his case has gone on for far too long.

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