The Supreme Court last night split along conservative-liberal lines, with Justice Anthony Kennedy joining the conservatives, to allow the Arizona execution of Jeffrey Landrigan to proceed in spite of lower court concerns about the safety of the drugs being used for the lethal injection. After he uttered his last words "Boomer Sooner" -- a University of Oklahoma fan slogan -- Landrigan was executed at 12:26 a.m. Eastern Time today, according to this CNN account.
The eleventh-hour court dispute stemmed in part from the shortage of sodium thiopental, an ingredient in the "cocktail" of drugs typically used in lethal injections in the United States. The sole U.S. manufacturer has stopped production, but Arizona obtained the drug from a foreign source. The state resisted requests for details about the sourcing by attorneys for Landrigan, citing a state law that protects the privacy of individuals and entities involved in executions.
Without that information, Landrigan asserted that the use of a drug from a source not approved by the Food and Drug Administration created the risk of serious pain during the execution, in violation of the Eighth Amendment. Judge Roslyn Silver of the U.S. District Court in Phoenix agreed and stayed the execution, stating that without the information she was "left to speculate" whether the foreign drug would cause pain and suffering. The state appealed, and a panel of the U.S. Court of Appeals for the 9th Circuit upheld the stay. In its opinion the 9th Circuit said that because of uncertainty about the information about the drug that the district judge had before granting the stay, "we cannot say the district court abused its discretion." The ruling also implied that the state's reticence left defendant Landrigan unable to meet his burden under the Supreme Court's 2008 decision in Baze v. Rees to establish that a "substantial risk of serious harm" might stem from using the drug.
But the high court, in its order late last night vacating the stay, turned that uncertainty to the state's advantage. The unsigned order, quoting from the Baze precedent, said "speculation cannot substitute for evidence that the use of the drug is 'sure or very likely to cause serious illness or needless suffering.' ... There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect."
The Court noted that Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan wanted to keep the stay of execution in effect -- which means, without saying so, that Chief Justice John Roberts Jr. and justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito Jr. voted to lift the stay.