The Grim Reaper and Mr. Scalia

According to today’s New York Times, a spate of stays of execution across the country, as the Supreme Court considers a challenge to Kentucky’s use of lethal injection on the grounds that it is cruel and unusual punishment, is beginning to look to some like a moratorium. Of particular interest to me was this bit:

In another case, an Arkansas inmate, Jack H. Jones, raised the lethal injection issue nine years after his conviction and sentence became final. That tardiness apparently bothered only Justice Antonin Scalia on Tuesday, when by a vote of 8 to 1 the court denied an application by Arkansas to vacate a stay that the federal appeals court in St. Louis had granted to Mr. Jones.

Justice Scalia objected that the Supreme Court’s decision to hear the Kentucky case “does not alter the application of normal rules of procedure, including those related to timeliness.” He said the appeals court appeared to be operating on the “mistaken premise” that every lethal injection challenge now merited a stay.

Now I know next to nothing about jurisprudence, and I’m about to let that show.

It just seems to me that if someone were to file a case that burning people alive was cruel and unusual, nearly everyone facing being burned alive would try to get on that particular bandwagon. And if a Supreme Court were poised to consider the cruelty of burning people alive, it just seems strange to me for a Justice of that Court to say “let the burnings continue” when that same Court had recently accepted the possibility that burning people alive might be cruel and unusual.


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