This will be moot in 48 hours
While you may be aware that the Supreme Court this term will review the constitutionality of the lethal injection procedures used in many states, that doesn't mean that executions have ceased. Here, the Fifth Circuit declines to stay an execution scheduled for tomorrow.
A few things to note. First, see all the appeals and habeas petitions in this case over 18 years, but note that the defendant first filed for Federal habeas relief in October 2005. Next, note how the petition before the Court was styled a Section 1983 claim, but the district court treated it as a motion for stay of execution--creative pleading did not work. Finally, note that the original petition for stay of execution is still pending before the US Supreme Court--presumably, that Court could halt the execution in the next two days.
I guess it's really up to the Supreme Court to decide whether to stay all executions by lethal injection pending its decision. But still, shouldn't the Fifth Circuit at least weigh the chance that the procedure will be invalidated, rendering the execution of this and other petitioners unconstitutional, against the expense and delay to the State of Mississippi of waiting a few more months to put this man to death? At the risk of sounding like John Kerry, how do you tell a person that he will be the last to die by what may be unconstitutional means?
A few things to note. First, see all the appeals and habeas petitions in this case over 18 years, but note that the defendant first filed for Federal habeas relief in October 2005. Next, note how the petition before the Court was styled a Section 1983 claim, but the district court treated it as a motion for stay of execution--creative pleading did not work. Finally, note that the original petition for stay of execution is still pending before the US Supreme Court--presumably, that Court could halt the execution in the next two days.
I guess it's really up to the Supreme Court to decide whether to stay all executions by lethal injection pending its decision. But still, shouldn't the Fifth Circuit at least weigh the chance that the procedure will be invalidated, rendering the execution of this and other petitioners unconstitutional, against the expense and delay to the State of Mississippi of waiting a few more months to put this man to death? At the risk of sounding like John Kerry, how do you tell a person that he will be the last to die by what may be unconstitutional means?
posted by Callagy at 6:28 AM
5 Comments:
I know little about these cases. I think though that courts are to read very little into cert. activity, and only recognize actual decisisions of the court. Obviously, a cert. grant is more significant than a cert. denial. In a civil case where a similar determinative issue is being decided, I think courts will generally stay the case until the clarification of the law comes out. I think the Fifth Circuit should have stayed, but I can see their crankiness, and their lack of concern -- if the S.Ct. really is thinking of changing the law, they'll also grant the stay on appeal. Oddly, it's a way for the 5th Circuit to test whether banning lethal injection has four votes (grant cert.) or five votes (issue stay).
Sigh. Time to get ready for work.
Please! You should be so fortunate as to sound like Kerry.
I don't think that this is going to be the last execution before the SC makes some kind of decision. See calendar here
DEVELOPING SCOTUS blocks execution.
Order blocking the decision:
"The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is granted pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
Justice Scalia and Justice Alito would deny the application for stay of execution."
Oh Scalito...
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