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A circuit split on alternative methods? Not yet

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In Glossip v. Gross (2015), the Supreme Court adopted the position of the plurality opinion in Baze v. Rees (2008) that a death row prisoner challenging a method of execution must show that it presents a "risk of severe pain [that] is substantial 'when compared to the known and available alternatives.' "

Justice Sotomayor dissented from the Supreme Court's decision not to grant a stay of execution and take up the Arkansas execution cases, McGehee v. Hutchison, No. 16-877, saying the high court should resolve a split of opinion in the courts of appeals as to the meaning of "available."

But is there a split?  Not really.  Not yet.
The majority (one short of unanimous) of the Eighth Circuit en banc said, "we concur with the Eleventh Circuit that the State must have access to the alternative and be able to carry out the alternative method relatively easily and reasonably quickly. Arthur v. Comm'r, Ala. Dep't of Corr., 840 F.3d 1268, 1300 (11th Cir. 2016), cert. denied, 137 S. Ct. 725 (2017)."

A very different view was taken by the majority of a divided Sixth Circuit panel two weeks ago in In re Ohio Execution Protocol, No. 17-3076.  However, that case is not yet final in the Sixth Circuit.  Ohio has petitioned for rehearing en banc (the full court rather than a three-judge panel), and given the importance of the issue, the division in the panel, and the division with two other circuits, there is a strong chance the full court will take it up. 

If the Sixth does stick to its outlier position, then by all means the Supreme Court should take the issue up.  But there was no need to do it yesterday.  Long overdue justice was carried out, and the method worked as designed.  To borrow Justice Breyer's phrase, there was no need for "a rush to judgment." 

Justice Sotomayor said the case involved "life-or-death consequences."  No, it did not.  The question of whether death was the correct penalty for the crime had already been decided and exhaustively reviewed in earlier cases.  The question in this case was whether that would happen yesterday by the state's new method, which had already been thoroughly reviewed by the state supreme court in a decision the U.S. Supreme Court declined to review, or later, possibly by some other method.  That is a question of less moment and with heavier weight on the state's side.

The Supreme Court can take this issue up if and when there is a split between final decisions of courts of appeals, as is the usual practice.

1 Comment

Breyer and Sotomayor mailed it in. It is clear that they are voting on the basis of the fact that they don't like capital punishment so they just vote for stays.

Breyer's references to randomness and the rush are sophistry of the highest order---he is a thoroughly dishonest man and a disgrace.

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