Off Again, On Again: Execution to Proceed After SCOTUS Nixes 9th - U.S. Supreme Court
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Off Again, On Again: Execution to Proceed After SCOTUS Nixes 9th

This was a wee bit unexpected.

Late last week, the Ninth Circuit blocked the execution of Joseph Rudolph Wood, at least temporarily, while he pursued First Amendment right-of-access claims regarding Arizona's drugs of choice for lethal injection. On Monday, eleven judges dissented from the denial of en banc rehearing, with Judge Kozinski writing a separate dissent mocking the death penalty generally.

Then the U.S. Supreme Court stepped in and vacated the injunction. And then the Arizona Supreme Court issued a stay. And then they didn't.

Execution Proceeds

Joseph Rudolph Wood, a man convicted of murdering his estranged girlfriend and her father, is set to be executed this afternoon, according to news reports. Wood was originally set for execution this morning, after the U.S. Supreme Court stepped in and vacated the Ninth Circuit's odd injunction.

The Arizona Supreme Court, not to be outdone on the drama, issued a brief stay in order to consider the merits of his claims that he had received inadequate legal representation during his sentencing. However, as The Associated Press reports, the Arizona court has already reversed course and lifted the stay.

Update: the execution of Joseph Rudolph Wood began as scheduled, but lasted nearly two hours. We have more on the arguably botched execution on our Ninth Circuit blog.

Drug Controversy Remains

At first glance, it might seem that the U.S. Supreme Court's order indicates that the High Court doesn't buy in to recent arguments about defendants' need for information regarding the origin of drugs to be used in executions, as well as the credentials of the execution team.

That's certainly possible. It's also possible that the Court, along with the 11 dissenting Ninth Circuit judges, simply thought that Wood's chosen means of advancing that argument, a First Amendment right of access argument, was too far out of left field to fly. As Judge Jay Bybee noted in his dissent, the right of access to government records isn't Wood's right alone -- it's a general right of the public -- and it shouldn't be enough to stop an execution.

As Kozinski noted in his en banc dissent: "If Baze could not get a stay of execution under the Eighth Amendment, see Baze v. Rees, 553 U.S. 35, 62-63 (2008), Wood certainly is not entitled to one under the First."

But just because this wasn't a proper procedural mechanism for bringing the issue to the Court's attention, doesn't mean it's not an issue at all. With recent problematic executions and a dwindling supply of execution drugs, the "cruel and unusual" issue is one that isn't going away any time soon, even if courts have so far unanimously (not counting the Ninth Circuit's now-vacated order) ruled against inmates.

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