Tuesday, February 15, 2011

Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011)

In Brewer v. Landrigan  (See, Blog) the Supreme Court reversed a Ninth Circuit decision staying execution on grounds the FDA had not approved the lethal drug used by the State. In a unanimous per curiam opinion the Supreme Court dismissed this contention in a one page decision not even requring  oral argument. In another decision the Court had approved the death penalty protocol used by Kentucky in Baze v. Rees, 553 U.S. 35 (2008) but Dickens contended the Arizona protocol did not comport with Baze.

In Dickens v. Brewer counsel argued not that the protocol was invalid (indeed he conceded the validity of the protocol) but that nothing guaranteed that Arizona would implement the standards. According to Dickens, past mistakes in executions warrant a prediction of future errors.

The Ninth Circuit panel rejected both arguments.  Dickens presented no evidence that Arizona would use the standards only as a facade.  And every other Circuit Court rejected the complaint that previous errors  in implementing the protocol would not establish  failure or refusal to to comply in future applications of the protocol.

The 9th Circuit did not say so, but to grant a stay on the ground of the possibility of a State's indifference or failure to apply the protocol would prevent an execution at any time in the future.  The U.S. District Court had granted Arizona summary judgment. Affirmed.

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