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.

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