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Fifth Circuit denies emergency stay of execution pending civil challenge

[JURIST] A three-judge panel of the US Court of Appeals for the Fifth Circuit [official website] on Tuesday denied an emergency stay [opinion, PDF] for a Mississippi death row inmate challenging the state's lethal injection procedure. The court found that Dale Leo Bishop failed to establish that he would suffer an irreparable injury if the stay of execution was not granted while he appealed a lower court's decision that dismissed his constitutional challenge to Mississippi's lethal injection [JURIST news archive] procedure for failure to comply with the statute of limitations. In a dissent, Judge King argued:

[G]iven the fact that the adequacy of Mississippi’s protocol was effectively never litigated in this case, it seems to me highly inappropriate for the majority to import from Baze language suggesting that a stay may not be granted unless a showing is made of a substantial risk of severe pain, and then go on to decide whether such a showing has been made. Putting aside the fact that Bishop arguably has made such a showing... the effect of this is, again, to require Bishop to show a likelihood of success on the merits of an issue that was not developed below and is not part of this appeal.
Bishop had asserted a claim under 42 U.S.C. §1983 [text], which provides civil redress for the deprivation of any rights secured by the US Constitution, arguing that Mississippi's lethal injection procedure “unnecessarily risks infliction of pain and suffering." The appeals court also noted that Bishop failed to establish that his appeal was likely to succeed on the merits, or that the stay would serve the public interest and not result in substantial harm to the other parties. Bishop is scheduled to be executed [Daily Journal report] Wednesday evening.

In denying Bishop's request, the Fifth Circuit drew parallels between Mississippi's lethal injection procedure and Kentucky's protocol recently analyzed by the Supreme Court in Baze v. Rees [Duke Law case backgrounder; JURIST report]. The Court held in that case that a stay of execution is not proper unless a state's execution procedure presents a "demonstrated risk of severe pain." The Supreme Court decided that Kentucky's use of a three-drug lethal injection cocktail [DPIC backgrounder] did not satisfy this threshold, and further stated that any state procedure that was "substantially similar" would also fail to meet this standard.

7/24/08 - Bishop was executed by lethal injection at 6:14 PM on Wednesday. AP has more.

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