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5-4 split allows execution

Chastising a federal judge for delaying an execution based on “speculation” about the lethal drugs to be used, the Supreme Court by a vote of 5-4 on Tuesday night cleared the way for Arizona to carry out the death sentence of Jeffrey Timothy Landrigan.  The order marked the first time that new Justice Elena Kagan had cast a dissenting vote; she did so as the Court divided along ideological lines. This also was the first time the Court with its new member had split 5-4.  Landrigan, 50,  was executed not long afterward, by lethal injection.

Although the judge had temporarily postponed the execution only to get more information on the safety of one of the drugs to be used in the execution protocol, the Supreme Court would not allow that inquiry to go forward.  There was “no evidence in the record to suggest that the drug obtained from a foreign source is unsafe,” the order said, so the judge “was left to speculate as to the risks of harm….But speculation cannot substitute for evidence that the use of the drug” was sure or very likely to cause needless suffering.

The order had the support of Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Anthony M. Kennedy, Antonin Scalia and Clarence Thomas.  The order allowing the state to go ahead with the execution brought the dissent of Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.  The dissenters did not spell out their reasons, as the majority had.

Landrigan was sentenced to death for a 1989 murder in Phoenix after he had escaped from an Oklahoma prison, where he was serving a sentence for second-degree murder.  As the scheduled execution date of October 26 approached, Landrigan (after losing in a challenge in state court) filed a federal civil rights lawsuit, contending that the method of his execution would violate his Eighth Amendment right to be free from cruel and unusual punishment and his Fourteenth Amendment right to due process.  The Eighth Amendment claim was based on an argument that the state would be using sodium thiopental — one of the drugs in the execution protocol — that had not been shown to be safe in terms of avoiding needless pain.  The due process claim was based on the argument that the state had refused to disclose to him where it got that drug and whether it had been approved by the Food and Drug Administration as safe.

U.S. District Judge Roslyn Silver of Phoenix, after several preliminary disputes over the drug’s source, on Monday temporarily delayed Landrigan’s execution scheduled for the following morning, in order to inquire further into the dispute.  A panel of the Ninth Circuit Court on Tuesday turned down the state’s request to lift Silver’s order.  Because the state had not provided the information that Judge Silver had sought, the Circuit Court panel said, it could not make an informed decision on the dispute.  The state then asked Justice Kennedy to lift Silver’s order, and Kennedy referred the plea to the full Court.

The Supreme Court’s order did not focus on information that might later be developed in the court proceeding, but rather on the state of the record as it stood when Judge Silver ordered the delay.  Thus, the order commented: “There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect.”

The execution of Landrigan later in the evening will end the legal dispute over Arizona’s protocol, at least until some future death-row inmate raised it anew  Arizona’s execution protocol had been challenged earlier, by a group of inmates, including Landrigan, but that challenge was rejected by a federal judge last year, based on a conclusion that Arizona’s method was similar to one that the Supreme Court had approved in a Kentucky case in 2008, Baze v. Rees.  In that ruling, the Supreme Court had said that a method of lethal injection would be upheld unless it was “sure or very likely to cause serious illness and needless suffering.”

The Court quoted that standard in its order Tuesday night.

Under Arizona’s three-drug protocol for executing convicted murderers, sodium thiopental is the first drug given.  It produces unconsciousness, which is supposed to be deep enough to allow the execution team to then give the other two drugs that complete the process without causing the excruciating pain those drugs would cause if not masked.

There is only one drug company that produces a version of sodium thiopental that is approved by the U.S. Food and Drug Administration; that company is Hospira, Inc.  At an earlier stage of Landrigan’s case, when it was in state court, state officials indicated that, because of a shortage of the drug from Hospira, they had obtained it elsewhere.  The state Supreme Court refused to order the state to disclose where it got the drug.   In the federal case, the state acknowledged that it obtained the drug from a British firm.

Landrigan’s lawyers have contended that, because foreign countries do not use the same drug-safety standards that the FDA does in the U.S., there was no assurance that the sodium thiopental to be used in his execution would work to achieve the necessary unconsciousness — that is, in the context of an execution, would not be safe in avoiding needless pain.

Judge Silver, in ordering a delay, said that “the use of sodium thiopental from a non-FDA-approved source raises issues regarding its efficacy and possible side-effects.” Without evidence on those points, she wrote, she had to accept, for the time being, Landrigan’s claim that the drug to be used might be contaminated.  Moreover, she said, the issue before her was not simply whether FDA approval was necessary before a drug could be used in execution (and, in fact, she assumed that it would not be necessary); rather, she said, the issue is whether there is “a sufficient level of confidence” that the drug Arizona intended to use “does not create a substantial risk of harm.”

In the Supreme Court’s Tuesday night order, it quoted from Judge Silver’s opinion saying that she was “left to speculate…whether the non-FDA approved drug will cause pain and suffering.”   The full statement in that section of her opinion reads:

“Without the assurance of FDA-approval, the Court is left to speculate whether the non-FDA approved drug will perform in the exact same manner as an FDA-approved drug and whether the non-FDA approved drug will cause pain and suffering. This is not a factual issue the Court can resolve by adopting [the state’s] assurances that sodium thiopental ‘is simply a chemical compound’ and the source of that compound is irrelevant.”

Judge Silver went on to state, later in her 19-page opinion, that, because state officials “have refused to provide information to [Landrigan] about the source of the drug or the manufacturer, this Court cannot say that [Landrigan] faces no significant risk of suffering serious harm.”  A temporary stay, she concluded, “is warranted to allow the Court to fully consider his challenge to Arizona’s use of sodium thiopental obtained from an unidentified, non-FDA approved source.”

Besides asking the Justices to allow the execution, Arizona also had asked the Court to keep under seal, and thus away from Landrigan’s lawyers, the information about the source of the sodium thiopental.  The Court, after agreeing to lift Judge Silver’s stay, found that request to be moot and thus denied it.

Recommended Citation: Lyle Denniston, 5-4 split allows execution, SCOTUSblog (Oct. 27, 2010, 10:27 AM),