Recently in Ohio and other states, some inmates challenging the lethal injection process in federal courts have been given stays of executions, while others, similarly situated, have been denied stays and have been executed. This inconsistent application of federal law in capital cases has raised concerns among a number of federal judges. A stay was recently granted to Ohio inmate Jerome Henderson, but denied to Jeffrey Lundgren. On December 6, U.S. District Court Judge Gregory Frost denied a stay of execution to Ohio inmate John Spirko. However, Judge Frost sharply criticized the lack of any clear guidance from the Court of Appeals on this matter, saying it left the lower courts in a “morass of deadly ambiguity” as to how to apply the law:

This Court agrees [with a judge dissenting from the Henderson decision] and cannot fathom how the appellate court’s earlier concern over how “[i]t would be grossly unfair for different panels of this Court to reach opposite conclusions on the issue of the constitutionality of Ohio’s method of lethal injection so that some capital defendants are put to death by lethal injection while other similarly situated are spared” meshes with what has transpired in regard to Lundgren and Henderson. In the words of the Sixth Circuit, there is no “consistent, uniform and fair application of federal law in all such lethal injection cases before the [appellate court].” (Doc. # 107, at 2.) Certainly, Henderson will not complain about the inconsistency, but Lundgren, who was executed on October 24, 2006, would no doubt have been interested in the Henderson panel’s unexpressed rationale.

[T]his Court is now confronted with two different unreported decisions by two different appellate panels, both concerned with the same issues of law and both reaching wholly opposite, unexplained results.

This Court’s inability to discern the appellate rationale for denying or granting a stay does not promote confidence in the system, does not promote consistency in court decisions, and does not promote the fundamental value of fairness that underlies any conception of justice.

(Cooey v. Taft, No. 2:04-cv-1156, U.S. District Court for Southern Div. of Ohio, Dec. 6, 2006) (Order denying reconsideration of previous denial of a stay of execution to John Spirko, intervenor).

See Lethal Injection and Arbitrariness.