The Ninth Circuit publishes ten orders and opinions today, and this one's among both the shortest and most interesting of the bunch.
The Ninth Circuit affirms a TRO that stays the execution of Arizona inmate Jeffrey Landrigan. Now, it's the Ninth Circuit, so that's not totally unprecedented.
But if and when people reflexively dismiss this result as the typical product of an out-of-control Ninth Circuit -- and I'm quite confident that many the blogosphere and elsewhere will do so -- you might want to remind them of two things.
First, the panel of three judges who enter today's order includes Judge Rymer. This is hardly someone who's constantly on the lookout for any excuse to delay an execution. Hardly. Way.
Second, check out the facts, which are truly unusual. Arizona's trying to whack Landrigan, but the only sodium thiopental it can get its hands on that hasn't expired is from an unidentified foreign manufacturing source that isn't approved by the FDA. Now, you might think -- as do I -- that the Eighth Amendment doesn't totally categorically prohibit people from getting iced with drugs that may be unsafe. We're killing them, after all. Not exactly worried about safety.
But we are somewhat worried about effectiveness. We want the dude to be killed. We also want to make sure the drug works as intended, and doesn't (for example) cause unnecessary pain, a lingering coma, etc.
So Landrigan files a petition that says that using this particular product would violate the Eighth Amendment, and the district court -- quite understandably, in my view -- tells Arizona to disclose where the drug comes from (in order to evaluate Landrigan's claims) or explain why it doesn't think that's relevant. Arizona asserts in response that state law precludes it from disclosing that fact, which it doesn't think is relevant anyway, but the federal court disagrees, and on Saturday (!), ordered Arizona to immediately make the disclosure.
To which Arizona (on Sunday) (!!) essentially responded: No. Even though the execution's scheduled for Tuesday, we're not going to tell you where the drugs are from, and we're not going to comply with the order of the court.
So on Monday, the district court says -- again, quite reasonably, in my view -- "If you're not going to comply with my order, and you're not going to tell everyone where you got the drugs so they can back up their claim that the use of this particular product violates the Eighth Amendment, I'm not going to let you use the thing on Tuesday. Execution stayed." Arizona filed an appeal with the Ninth Circuit, but this morning -- hours before the scheduled execution -- the Court of Appeal affirms (rightfully, in my view) the district court.
It's not enough to say, as Arizona has, that the Eighth Amendment doesn't categorically preclude the use of non-FDA approved manufacturers, nor sufficient to merely state that the drugs were "cleared and approved by U.S. Customs and FDA officials." With respect, we don't delegate Eighth Amendment claims to secret resolution by unnamed U.S. employees who look at a bottle at the border and decide to let it in. We have a process for this. And part of that process is that you comply with judicial orders. And when you don't, don't be surprised -- in the slightest -- that we don't let you use the drugs whose source you refuse to reveal and the qualities of which you deliberately obfuscate and do not allow to be submitted to adversarial discourse.
I'm sure Arizona will ask for en banc review on this one, and then file something today with the Supreme Court (which I assume it already has). I've got no crystal ball, of course. But I gotta say that, in my view, this is decidedly not the case of the Ninth Circuit throwing up whatever roadblocks it can to prevent a death sentence from being carried out. Rather, the problem here is entirely of Arizona's own doing. So it would definitely not get my vote, either in the Ninth Circuit or in the Supreme Court, to dissolve the stay. And I'll hazard a prediction -- always dangerous in this area -- that there are lots of others who'll feel the same way. Both on the Ninth Circuit and in the Supreme Court.
So at least for now, Landrigan will likely live another day.
POSTSCRIPT - Yep, there are others who feel the same way as I did on this one. On the Supreme Court, exactly four of 'em. The Court voted late Tuesday 5-4 to dissolve the stay. And Arizona killed Landrigan shortly thereafter.
