A Texas companion? A lengthy de facto moratorium? What the Baze f@%$, SCOTUS?

Along  with many others, I am trying to figure out just what to make of the Supreme Court’s decision to block Texas’s effort to go forward with a lethal injection execution last night (details here).  The decision suggests (but hardly ensures) the Justices will decided to block all lethal injection executions while the Baze case is pending.

As I think this through, this one not-quite-random thought came to mind: perhaps the Justices are now thinking about taking a Texas lethal injection case to hear and adjudicate along with Baze?  After all, as these DPIC stats highlight, Texas is the only state still regularly using the death penalty and nearly 70% of all lethal injections in 2007 have taken place in Texas.  If any particular state’s execution protocol is to be rigorously examined by the Supreme Court, it really ought to be the protocol being used in Texas.

Even though it likely would be a good idea for SCOTUS to take a Texas companion case, a clear and cogent opinion in just the Kentucky case ought to provide sufficient guidance for Texas and other states eager to continue lethal injection execution.  However, I am not that all confident that we will get a clear and cogent opinion in Baze (since we didn’t in the Hill precursor case).  Moreover, it seems all but certain that there will be (chaotic?) lower court litigation after Baze no matter what the Justices decide. 

Looking at the calender, then, I think there is now a real possibility of very few (if any) executions in the United States for the next 9 to 18 months.  With or without a companion case, the Justices seem unlikely to resolve Baze until at least March or April.  And, if there is strong division within the Court, the Baze opinion might not come until late June.  And, with a divided opinion, lower court litigation over Baze‘s impact might take at least another few months even in states like Texas eager to get back to their capital business.

What a mess.  Nearly 18 months ago in this post, I described all the lethal injection litigation “a national disgrace” undermining the interests of federalism and sentencing consistency and orderly government.  Then (and in this subsequent article), I urged Congress to step in because it seems that the Court is poorly positioned to handle these issues effectively and efficiently.  (Of course, I have little confidence Congress would handle this issue well, but at least it should try since its approval rating cannot get much lower.)

UPDATE:  This new AP piece includes this assessment from an informed observer:

“I think we’re headed toward a moratorium, at least until the Supreme Court resolves the Kentucky case,” University of Texas law professor Jordan Steiker said Friday. “I think now the course seems relatively clear that we are likely to have moratorium on executions for at least nine months, probably a year, until the court issues an opinion and provides definitive guidance.”