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Lethal Injection Developments

In California, Judge Fogel toured the new, not-yet-used facility.  Howard Mintz has this story in the San Jose Mercury-News.  Carol Williams has this story in the Los Angeles Times.  Scott Smith has this story in the Stockton Record.

The Ninth Circuit today rejected the attack on Arizona's lethal injection protocol in Dickens v. Brewer, No. 09-16539.  The panel was Judges Hug, Nelson, and McKeown, a relatively prisoner-friendly panel, even for the Ninth. 

First, the Ninth correctly finds that Chief Justice Roberts' plurality opinion in Baze is the controlling one under the Marks rule. Next,

Baze creates a safe harbor for lethal injection protocols that are substantially similar to Kentucky's protocol; the plurality states that such protocols do not create a substantial risk of serious harm. Id. at 61. Arizona's Protocol falls within this safe harbor--it incorporates even more safeguards against maladministration than Kentucky's protocol . . . .

That is also true in California.  So what's left to argue?  The prisoners, Dickens et al., argue about a risk that Arizona will not actually follow its protocol, citing incidents before the protocol's adoption.  The court is not convinced.

And, no, the availability of a one-drug protocol, even if superior, does not make the three-drug protocol unconstitutional.

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