The Supreme Court of the State of Washington today decided Brown v. Vail, No. 83474-1, the lethal injection challenge. The court unanimously rejected the challenges and lifted the stay in Brown's case. Stays in the cases of the other two plaintiffs had been entered by other courts and were not directly at issue.
The case is procedurally unusual in that it began as a challenge to the traditional three-drug method, but the state changed to a one-drug method similar to Ohio's while the case was pending appeal.
Briefly, the holdings are:
1. The claims are not barred by the statute of limitations, which begins running when a protocol is amended.
2. The DoC's promulgation of the protocol is not in excess of its authority delegated by the statute. The DoC is charged with the duty to carry out lethal injections, which implicitly delegates authority on the details. Procedurally, the DoC is exempt from the Administrative Procedure Act (APA), but the availability of judicial review is a sufficient procedural safeguard.
3. The court rejects the claim under the drug laws as not justiciable. It is up to FDA or DEA to enforce the drug laws (and there probably is no violation anyway).
4. The challenge to the three-drug protocol is moot, and any challenge to the one-drug protocol does not have enough in common with the challenge in the trial court to consider in this case. "In short, there has been no trial on the constitutionality of the new one-drug protocol, and we cannot hold such a trial on appeal."
This decision does not preclude a new challenge to the one-drug protocol, but it is hard to see a viable challenge there. Ohio has been using it without significant problems.
Thanks to "notablogger" for the tip.
Cal Coburn Brown, BTW, is long overdue for his appointment with eternity. In his case, like so many others, "By not according the required deference, the [Ninth Circuit] Court of Appeals failed to respect the limited role of federal habeas relief in this area prescribed by Congress and by [the Supreme Court's] cases." Uttecht v. Brown, 551 U.S. 1, 10 (2007). The Ninth's opinion on remand is here.
Rachel La Corte has this story for AP.
The case is procedurally unusual in that it began as a challenge to the traditional three-drug method, but the state changed to a one-drug method similar to Ohio's while the case was pending appeal.
Briefly, the holdings are:
1. The claims are not barred by the statute of limitations, which begins running when a protocol is amended.
2. The DoC's promulgation of the protocol is not in excess of its authority delegated by the statute. The DoC is charged with the duty to carry out lethal injections, which implicitly delegates authority on the details. Procedurally, the DoC is exempt from the Administrative Procedure Act (APA), but the availability of judicial review is a sufficient procedural safeguard.
3. The court rejects the claim under the drug laws as not justiciable. It is up to FDA or DEA to enforce the drug laws (and there probably is no violation anyway).
4. The challenge to the three-drug protocol is moot, and any challenge to the one-drug protocol does not have enough in common with the challenge in the trial court to consider in this case. "In short, there has been no trial on the constitutionality of the new one-drug protocol, and we cannot hold such a trial on appeal."
This decision does not preclude a new challenge to the one-drug protocol, but it is hard to see a viable challenge there. Ohio has been using it without significant problems.
Thanks to "notablogger" for the tip.
Cal Coburn Brown, BTW, is long overdue for his appointment with eternity. In his case, like so many others, "By not according the required deference, the [Ninth Circuit] Court of Appeals failed to respect the limited role of federal habeas relief in this area prescribed by Congress and by [the Supreme Court's] cases." Uttecht v. Brown, 551 U.S. 1, 10 (2007). The Ninth's opinion on remand is here.
Rachel La Corte has this story for AP.
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