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Execution Methods and Alternatives Before SCOTUS Again

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A month ago, the U.S. Court of Appeals for the Eleventh Circuit revived a suit over Alabama's substitution of midazolam for pentobarbital as the first drug of its three-drug execution method.  USCA11 said that the plaintiffs had adequately pleaded the elements required by Glossip v. Gross, including the availability of an alternative.  They alleged that sodium thiopental is available, taking us full circle to the original three-drug method.  The case is Burton v. Commissioner, No. 17-11536.  Burton's is the "lead" case, but there are a total of twelve, including the case of Jeffery Borden.

But an allegation sufficient to state a cause of action and a demonstrated possibility of success on the merits sufficient for a preliminary injunction are two different things.  Thiopental is, in fact, not currently available.  Last Friday, the Eleventh Circuit decided to enjoin the execution of Borden anyway, under the All Writs Act.  Citing its own precedent, the court said that the usual requirement of a likelihood of success on the merits does not apply to the All Writs Act.

So you can stop the execution of a judgment that is already very long overdue just by alleging a "fact" that is patently false?

The Supreme Court today vacated the injunction in Dunn v. Borden, No. 17A360.  The vote was apparently 6-3:  "Justice Ginsburg, Justice Breyer, and Justice Sotomayor would deny the application to vacate the injunction."  No opinions are on the Court's website as of this writing.

Borden's execution date is tomorrow.

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Justice Kagan said in her confirmation hearing that the death penalty was settled law going forward. This is one indication, albeit indirect, that she is true to her word, as she was when she was Dean at Harvard.

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