More Eleventh Circuit lethal injection action

From attorney Karl Keys BLOG :

Friday, October 06, 2006

More Eleventh Circuit lethal injection action

http://www.capitaldefenseweekly.com/2006/10/more-eleventh-circuit-lethal-injection.html

Lethal injection remains in the news.

Hearings in California and elsewhere are ongoing.

The eleventh Circuit refuses to take part in the ongoing dilemma. In Arthur Rutherford v. McDonough a split panel denies relief.

Decision of the Day notes:

With his execution imminent, convicted murderer Arthur Rutherford filed suit challenging the constitutionality of Florida's lethal injection procedure shortly after the Supreme Court granted certiorari in Hill'’s case.

As with Hill, the district court and Eleventh Circuit denied Rutherford'’s claims. But when the Supreme Court decided that Hill'’s challenge could proceed under § 1983, it remanded RutherfordÂ’s case as well.

In a divided opinion, the Court decides that Rutherford will suffer the same fate as Hill: execution, without any hearing on the merits of whether Florida's lethal injection procedure amounts to cruel and unusual punishment.

The majority concludes that Rutherford waited too long to bring his challenge.

Perhaps emboldened by the Supreme Court's refusal to stay Hill'’s execution a second time, Judge Carnes tosses in a lot of choice words about the importance of prompt executions and a few choice words about Rutherford's attorney.

Judge Wilson dissents, explaining that Rutherford's timing in bringing his § 1983 claim is understandable, given the Supreme Court'’s decision to hear Hill'’s case. He further argues that executing people in compliance with the Constitution is more important than executing people quickly.

The tension remain finality and ripeness remains and the split in the lower courts continue. Whether this or another case will finally get cert to resolve the split on the competing doctrines remains to be seen.

[The Clarence Hill stay application is here. The petition for certiorari can be found here.]