Judges Again Block Execution Despite Supreme Court Ruling

WASHINGTON - July 16, 2020 - PRLog -- Although the Supreme Court had just upheld the execution of Daniel Lewis Lee, despite claims that a lethal injection of phenobarbital might cause "extreme pain and needless suffering," four judges issued or upheld an order granting a stay in the case of a second murder, Wesley Purkey, who was convicted of raping and murdering a 16-year-old girl.

The action of the federal district judge who stayed Purkey's execution, then the judges on the federal appellate court who permitted the stay to remain, and the fact that his execution was finally permitted to proceed only by the slimmest of margins at the Supreme Court, shows that the death penalty is in trouble and likely to be repeatedly challenged on this same "pain" argument, since the justices cannot always be counted on to overturn stay orders in the middle of the night, and a small change in the facts or procedure could easily cause one justice to switch his vote, suggests public interest law professor John Banzhaf.

Just a day earlier, this new argument - that the federal government's "lethal injection protocol" might cause "extreme pain and needless suffering" during the execution of a white supremacist convicted of killing a family of three - persuaded a federal judge to stay Lee's execution, and the D.C. Circuit to leave the stay in play.  The scheduled execution was permitted to proceed only after a close 5-4 vote of the Supreme Court on "an emergency application from the Government for extraordinary relief."

Subsequently, the same argument led to a second stay of execution for Purkey, only to be overturned, 5-4, by the Supreme Court decision issued at 3:00 AM Thursday.

The same "pain" argument is almost certainly going to be made again and again by other murderers sentenced to death, and another judge (federal or state) and another appellate court are likely to again be persuaded by it, says Banzhaf.  He notes that such Supreme Court actions create little in the way of precedents.

If governments doesn't take advantage of this simple and proven protocol to cause death without pain, they can only expect further challenged by death penalty opponents who can probably then show, according to the existing legal standard, that the current execution protocol creates substantial risks of harm relative to a viable alternative:i.e., a painless barbiturate pill.

http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf