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Death Penalty

One-sentence SCOTUS dissent suggests court should consider issue of secret death-penalty drugs

Posted Mar 11, 2014 1:37 PM CDT
By Debra Cassens Weiss

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A one-sentence dissent suggests some U.S. Supreme Court justices are ready to consider the issue of secret suppliers of drugs used to execute prisoners.

Some states are refusing to divulge the names of the compounding pharmacies they are using to obtain lethal-injection drugs, confounding inmates’ Eighth Amendment challenges. The dissent to the denial of certiorari in a death-penalty case was issued on Feb. 25 by Justice Ruth Bader Ginsburg and joined by Justices Elena Kagan and Sonia Sotomayor, the New York Times reports.

The dissent said the three justices would grant a stay of execution for Michael Taylor and consider his cert petition “for reasons well stated by Judge Bye in his statement calling for 8th Circuit rehearing en banc.” Bye’s statement, the Times explains, complains that Missouri is “using a shadow pharmacy hidden behind the hangman’s hood.” Bye said the loosely regulated compounding pharmacies could be “nothing more than a high school chemistry class.”

Taylor was executed a few hours after the cert denial. But the issue will return to the Supreme Court in upcoming cases from Missouri and Louisiana, the Times says. In Zink v. Lombardi, an amicus brief filed on behalf of Missouri inmates argues that the 8th Circuit created “a severe and darkly ironic conflict” when it required lawyers to propose a suitable alternative method for executions before states divulge information about secret execution drugs.

The amicus brief says 8th Circuit decision "would require the lawyer to actively advocate for a particular means of achieving his client’s death in the course of attempting to avert it.”

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