SKILLERN v. PROCUNIER
469 U.S. 1182

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U.S. Supreme Court

SKILLERN v. PROCUNIER , 469 U.S. 1182 (1985)

469 U.S. 1182

Doyle Edward SKILLERN
v.
Raymond PROCUNIER, Director, Texas Department of Corrections, et al
No. A-541

Supreme Court of the United States

January 15, 1985

The application for stay of execution of the sentence of death scheduled for Wednesday, January 16, 1985, presented to Justice WHITE and by him referred to the Court is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

I

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, 428 U.S. 153, 227, 1950 (1976) (BRENNAN, J., dissenting), I would grant the application for a stay of execution.

Page 469 U.S. 1182 , 1183

II

Even if I believed otherwise, however, I would stay the applicant's execution pending this Court's resolution of Heckler v. Chaney, No. 83- 1878, cert granted, 467 U.S. 1251 (1984), which has been argued to this Court and currently awaits decision. I cannot participate in the cruel irony visited on this applicant by the Court today.

Doyle Edward Skillern is one of the eight plaintiffs in Chaney. Those plaintiffs allege that lethal drugs used to carry out death sentences in Texas and Oklahoma cause "agonizingly slow and painful deaths" and consequently are not "safe and effective" for their intended use in executions, as allegedly is required under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq. The Court of Appeals for the District of Columbia Circuit agreed that the Food and Drug Administration has a statutory duty to investigate this claim, and indicated that it was prepared to "compel" the FDA to take action against the lethal drugs. Chaney v. Heckler, 231 U.S.App.D.C. 136, 153, 718 F.2d 1174, 1191 (1983).

The merits of the Court of Appeals' action and order in Chaney are not before us on this application. In March 1984, the Solicitor General of the United States filed an application for stay of the Court of Appeals' mandate in Chaney, arguing that the decision was "likely to interfere with state enforcement of capital punishment statutes. . . ." Application in Heckler v. Chaney, No. 83-1878, p. 6. "[I]f the mandate is not stayed, the FDA will in all likelihood be required . . . to regulate the method of capital punishment used in several states," including Texas. Id., at 10. THE CHIEF JUSTICE granted the motion for stay of the mandate based on this understanding of the effect of the judgment.

Thus the Government and this Court have proceeded in the Chaney case on the assumption that success by the plaintiffs will delay and perhaps ultimately preclude their execution by lethal injection. Yet today the Court decides to send one of those plaintiffs to his death by the very method challenged in Chaney. The Court obviously considers the issues in Chaney substantial enough to warrant plenary consideration. But despite our assertion of jurisdiction over applicant and his claim in Chaney, Texas subsequently has determined to execute applicant by lethal injection tomorrow morning. I am aware of no precedent that has permitted [469 U.S. 1182 , 1184]


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