Legal analyst Andrew Cohen has posted, "Supreme Court Sides With Arizona in Lethal Injection Drug Dispute," at Politics Daily.
The legal question in the case was simple and unusual and sparked a great deal of debate among death penalty specialists: Does a condemned prisoner have a right to know where the drugs that will kill him came from and are made of? The Supreme Court's conservative majority answered that question no, at least in the circumstances of this case. In its unsigned order, issued late Tuesday night, the court dissolved the stay of execution as too speculative. "There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe," the justices said. "There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect."
State lawyers had argued that providing information about the origins or ingredients of the drug might improperly lead to the identification of the executioners themselves. More credibly, Arizona also claimed that it didn't matter what kind of thiopental it intended to use in executing Landrigan, or where it came from, because the state's injection protocol has enough protections in it to ensure the first drug is properly injected into the inmate before the second and third drugs, the lethal ones, are administered to the inmate. The Supreme Court cited its own precedent in Baze v. Rees, a lethal injection case out of Kentucky, in endorsing Arizona's view.
And:
When U.S. District Judge Roslyn O. Silver blocked the Landrigan execution Monday, she rooted her decision in the language of the Eighth Amendment's "cruel and unusual punishment" clause. She ruled that a nationwide shortage of thiopental raised legitimate questions about whether foreign, non-FDA-approved thiopental would be inserted in Landrigan's veins. And that, in turn, raised legitimate questions about whether those drugs would have side effects or contaminants or deficiencies that would cause Landrigan undue (unconstitutional) pain during his execution.
Because of Arizona's refusal to share relevant information about how it got its thiopental, Judge Silver wrote, the court "is unable to determine whether the drug was produced by a foreign company that follows standard operating procedures for the drug's manufacture or that has no history of contamination in manufacturing the product. Absent such evidence, the Court must accept Plaintiff's factual showing that such drugs are more likely to contain harmful contaminants." This speculation, the Supreme Court subsequently ruled, was not enough to warrant additional delays in Landrigan's execution.
Silver also addressed Arizona's surly view of the role of the FDA in lethal injection law. "FDA-approval is relevant in that drugs manufactured under FDA guidelines are likely to perform as expected; drugs manufactured by non-FDA approved sources might not benefit from such a presumption. 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." The Supreme Court did not address this issue in its one-page order Tuesday night.
The final New York Times report is, "Arizona Executes Inmate After Supreme Court Clears Way," by John Schwartz.
Eric M. Freedman, a law professor at Hofstra University, said that the lesson of the Supreme Court’s ruling in the Landrigan case was “crime pays.”
He explained: “The state flatly stonewalled the lower courts by defying orders to produce information, and then was rewarded at the Supreme Court by winning its case on the basis that the defendant had not put forward enough evidence. That is an outcome which turns simple justice upside-down and a victory that the state should be ashamed to have obtained.”
And:
Ty Alper, the associate director of the death penalty clinic at the University of California, Berkeley, said that the Supreme Court’s decision did not end the story, arguing that “it explicitly leaves the door open for a challenge in a case where petitioners can show that the drug was unlawfully obtained.”
The fact that the F.D.A. has not approved foreign sources of sodium thiopental, he said, suggested that “it’s very likely that a petitioner will be able to make this showing in a case where there is more time to litigate the issue than there was in the Arizona case.”
"Justice Elena Kagan's first vote is against an execution," is David Savage's Los Angeles Times report.
"There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe," the justices said, and "speculation cannot substitute for evidence that the use of the drug is 'sure or very likely to cause serious illness and needless suffering'."
The high court used those words two years ago in a decision that upheld the use of lethal injections.
Tuesday's night's one-paragraph order was unsigned, but it spoke for Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.
Four others said they disagreed and said would have preserved the stay. They were Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Kagan.
From the U.K., the Telegraph posts, "Arizona execute man with drug supplied by British company," by Victoria Ward.
The British manufacturer will not necessarily know that the drug was used for an execution as it may have been exported through a wholesaler. The drug is also licensed for use as an anaesthetic.
But Clive Stafford Smith, director of legal charity Reprieve, said: "When the veil of secrecy is inevitably sundered, this British corporation should be reminded that the medical profession boasts of a Hippocratic oath, not a hypocritical one."
One British company, Archimedes Pharma, who holds a marketing authorisation for sodium thiopental, said it "neither exports to the US for any purpose nor is it aware of any exports of the product."
The Guardian posts, "Arizona execution goes ahead after stay lifted," by Chris McGreal.
The state's attorney general, Terry Goddard, used a little known law preventing the identification of executioners – and others with "ancillary" functions – to defy a court order requiring the state to reveal the exact source of an anaesthetic, sodium thiopental, used in the execution.
Yesterday, Goddard's office confirmed to the Guardian that the drug was obtained from a manufacturer in Britain because of a shortage in the US but declined to name the company concerned. Sodium thiopental is used to render prisoners unconscious before they are killed with other drugs. It has been in short supply in the US for months, forcing at least two states to look for alternative sources of supply.
Kent Cattani, Arizona's assistant attorney general, acknowledged at a court hearing last week that the state had not got the drug from the only approved US supplier, Illinois-based Hospira.
It is possible that the UK supplier was unaware that the drug was intended for use in executions as several US states have sourced it from abroad for use in hospitals.
Hospira has said that it does not approve of the use of the anaesthetic in executions. "[The drug] isn't indicated for capital punishment, and Hospira does not support its use in this procedure," it said. "Hospira has communicated with departments of corrections in the United States to advise them of this position."
Earlier coverage begins with this post.
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