THE ROBING ROOM

Death Penalty/Lethal Injection. Judge Holmes ordered stays for several Arkansas inmates facing lethal injection despite dismissing sec 1983 suit. He cited 'Dataphase' (1981) in challenging the constitutionality of LI process. Citing 'serious questions' and Deliberative investigation' as to how AR changed the LI process and grants too much power to Director of corrections. He really had to reach for this one - and also failed to address Hill v McDonough (2006) and most relevant DP/LI case law. Finally, the 8th circuit put an end to this folly and vacates these stays citing Judge Holmes and plaintiffs claims as purely speculative. Under Hill the likelihood of irreparable harm is not enough. Under Nooner (2010) the 8th Circuit already ruled AR LI process as constitutional. The inmates have 'virtually no chance of success on the merits'. Judge Holmes was creative but incorrect as a matter of law. Judge Melloy dissents holding that the Directors power is 'Unprecendented' and the protocol COULD be changed at any time. Interesting, but unnoteworthy dissent.