Five fed­er­al judges of the U.S. Court of Appeals for the 6th Circuit dis­sent­ed from the Court’s denial of a stay of exe­cu­tion to Sedley Alley in Tennessee. (Alley was sub­se­quent­ly grant­ed a stay by the gov­er­nor on oth­er grounds.) Judge Boyce Martin, writ­ing for the dis­sent­ing judges, not­ed that many inmates around the coun­try were being grant­ed stays of exe­cu­tion after fil­ing chal­lenges to the lethal injec­tion process. Others rais­ing the same claims have been denied stays and have been exe­cut­ed, despite the fact that the U.S. Supreme Court is con­sid­er­ing a case relat­ed to this issue (Hill v. McDonough).

Excerpts from Judge Martin’s opinion follow:

“[T]he dys­func­tion­al patch­work of stays and exe­cu­tions going on in this coun­try fur­ther under­mines the var­i­ous states’ effec­tive­ness and abil­i­ty to prop­er­ly car­ry out death sen­tences. We are cur­rent­ly oper­at­ing under a sys­tem where­in con­demned inmates are bring­ing near­ly iden­ti­cal chal­lenges to the lethal injec­tion pro­ce­dure. In some instances stays are grant­ed, while in oth­ers they are not and the defen­dants are exe­cut­ed, with no prin­ci­pled dis­tinc­tion to jus­ti­fy such a result. (Citations omit­ted.) This adds anoth­er arbi­trary fac­tor into the equa­tion of death and thus far, there has been no log­ic behind the Supreme Court’s deci­sion as to who lives and who dies. Until the Supreme Court sorts this out, I would uphold the stay issued in this case, and all cas­es that come before this Court, and there­fore dis­sent from the Court’s con­trary hold­ing.
…

​“The fact is that fif­teen exe­cu­tions have been car­ried out despite Hill. Other courts have issued stays putting exe­cu­tions on hold pend­ing the Hill’s dis­po­si­tion. This patch­work jus­tice is intol­er­a­ble when deal­ing with the impo­si­tion of the death penal­ty and under­mines the pub­lic inter­est in uni­form adju­di­ca­tion.
…

​“No doubt the march toward death is pow­er­ful. Currently, how­ev­er, the march is any­thing but order­ly. The cur­rent admin­is­tra­tion of the death penal­ty in light of the pend­ing deci­sion of Hill is more like a march in dozens of dif­fer­ent direc­tions, which I believe is more cost­ly, more inef­fi­cient, and more arbi­trary, than enter­ing the stay and wait­ing tem­porar­i­ly for some (hope­ful­ly) clear guid­ance.”

-Alley v. Little, No. 06 – 5650 (6th Cir. May 16, 2006) (Martin, J., dis­sent­ing from denial of a rehear­ing en banc) (empha­sis added).

See DPIC’s list of exe­cu­tions stayed and car­ried out since the Supreme Court agreed to hear the Hill case.

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