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Obstruction Sausage, Meet SCOTUS Grinder

Kent noted yesterday that an exceptionally vile murderer, Joseph Paul Franklin, had been granted a stay of execution by a federal district judge in Missouri in order, so it was claimed, to allow the judge time to review Missouri's new execution drug protocol.  As Kent put it:

I don't have the actual ruling, but from the story it appears that the judge might believe that litigating the method of execution is the new normal, a permanent additional phase to capital litigation, and every inmate has to be allowed that challenge.  It shouldn't be.  A single-drug execution with pentobarbital is so far from the risk of extreme pain required under Baze that there normally should not be any basis for a stay.

The Supreme Court should listen to Kent more often.  I'm delighted to say that it appears to have been listening last night.  It upheld the Eighth Circuit's overturning of the lower court's stay (there were two of them, actually).  The execution has now been carried out, as recounted in this Washington Post story.

For the reasons Kent suggested, the Court's action is potentially very important. Many states have adopted new (usually single-drug) protocols post-Baze.  Defense lawyers were licking their chops, ready to file boatloads of speculative claims about the supposedly excessive risk of severe pain that the new, "untested" protocols might bring about.  The Supreme Court's refusal to indulge yet more delay on account of such claims is, at the least, a hopeful sign that this obstructionist tactic will be stillborn.

[Editor's Note:  Orders are here and here.  No dissent noted.  Scalia recused.]

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