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Court Lifts Stay on Lethal Injections in Delaware

(CN) - The 3rd Circuit upheld a federal judge's ruling that Delaware's protocol for lethal injections is constitutional, clearing the path for executions to resume in the state.

"We conclude that ... an execution protocol that does not present a substantial risk of serious harm passes constitutional muster and that, based on the record before us, Delaware's protocol presents no such risk," Judge D. Michael Fisher wrote for the three-judge panel.

The decision upholds a March ruling by U.S. District Judge Sue Robinson, who held that death-row inmates in Delaware failed to show how the state's lethal injection method amounts to "cruel or unusual punishment" under the Eighth Amendment.

Delaware's method calls for the sequential injection of sodium thiopenthal, pancuronium bromide and potassium chloride. The first chemical induces a coma, the second paralyzes the inmate and the third stops the heart.

In 2008 the state adopted a set of guidelines and rules for administering the so-called "three-drug cocktail," including requiring backup IVs and mandating steps to ensure the inmate is unconscious before the second and third drugs are administered.

Opponents have argued that the three-drug method could leave someone conscious but paralyzed, unable to react to the excruciating pain of the potassium chloride injection.

The Philadelphia-based appeals court relied heavily on the Supreme Court's splintered ruling in Baze v. Rees, which upheld a similar lethal injection protocol in Kentucky.

The inmates, however, leaned heavily on Ohio's recent decision to substitute a three-drug protocol for a one-drug protocol after experiencing what the 6th Circuit called "serious and troubling difficulties executing at least three inmates" under the previous protocol.

"But the plaintiffs again ignore Baze's teaching that risks of maladministration and mere mistakes do not suffice to prevail on an Eighth Amendment challenge," Fisher wrote.

The panel also rejected the claim that executioners might stray from protocol if they can't establish an IV line.

"There is perhaps always an ethereal risk that a rogue execution team could deviate from a written protocol and depart on a whimsical frolic, a possibility the plaintiffs appear to have taken for a given," Fisher acknowledged. But he called that assumption "grossly speculative and highly improbable."

"The safeguards drafted into Delaware's new lethal injection protocol exceed those contained in the Kentucky protocol that seven justices in Baze found constitutionally firm, and the plaintiffs have failed to adduce evidence that the new protocol otherwise offends the Eighth Amendment," Fisher wrote.

The court affirmed summary judgment for Delaware and dissolved Judge Robinson's stay on lethal injections.

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