Via USA Today comes news of this just-released order of the Supreme Court. Richard Wolf of USA Today notes that this order comes after the Court had refused to block earlier executions using lethal injection, as questions mount after a recent botched execution about the risks of the procedure for causing prolonged pain before death.
Here is the order:
What’s unusual about the order is the last sentence, leaving open the question of allowing an evidentiary hearing on the safety of the procedure in the lower courts. Andrew Cohen remarks that “On Bucklew, Missouri does not want an evidentiary hearing because it will require state to find doctors who contest Bucklew doctors’ claims.”
But it is unusual for the Court to allow this kind of action in the lower courts to continue while the Court considers a petition. Rather than take the record as frozen, this will allow the Court to continue to get factual information about the lethal injection protocol as it considers the case. It seems to make sense, but I can’t think of other examples where the Court lets factual development go forward while it considers a petition. I’m sure there are some, but I don’t know of any right now.
Famously in Bush v. Gore, the Court halted the counting of ballots while it considered the merits of the recount.
UPDATE: Via Chris Geidner comes news that the Court also denied a cert. petition at the Court, thereby leaving the issue to run its full course in the 8th Circuit. This makes the issue even more unusual, because you have the Court suggesting that an evidentiary hearing would be a good idea while the case remands in the hands of the lower courts. Kind of meddlesome by Supreme Court standards.
SECOND UPDATE: A reader suggests that the inmate in this case has a rare medical condition, which his lawyers allege would cause great pain at death. So it is possible this case is sui generis, and that it does not say anything broader about the lethal injection protocol. Even so, the hint for the evidentiary hearing remains unusual.
FINAL UPDATE: Nuance and context from Lyle Denniston.