ARBITRARINESS

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ARBITRARINESS

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In commenting on the Supreme Court's granting of some stays while allowing other executions to go forward, Douglas A. Berman, an expert in criminal sentencing law at Ohio State University's Moritz College of Law, said: "I am sure the court is trying to apply some sort of sensible standard. But they need to do a heck of a lot better job explaining why." (Washington Post, Feb. 10, 2006).

In dissenting from a 6th Circuit refusal to grant a stay based on a lethal injection challenge to Tennessee inmate Sedley Alley, Judge Boyce Martin, Jr., wrote: "[T]he dysfunctional patchwork of stays and executions going on in this country further undermines the various states’ effectiveness and ability to properly carry out death sentences. We are currently operating under a system wherein condemned inmates are bringing nearly identical challenges to the lethal injection procedure. In some instances stays are granted, while in others they are not and the defendants are executed, with no principled distinction to justify such a result." (Alley v. Little, No. 06-5650 (6th Cir. May 16, 2006) (Martin, J., dissenting from denial of a rehearing en banc)).

See also U.S. District Court Judge Gregory Frost's opinion in Cooey v. Taft (denying a stay for John Spirko in Ohio):
"[T]his Court is now confronted with two different unreported decisions by two different appellate panels, both concerned with the same issues of law and both reaching wholly opposite, unexplained results.
. . .
This Court’s inability to discern the appellate rationale for denying or granting a stay does not promote confidence in the system, does not promote consistency in court decisions, and does not promote the fundamental value of fairness that underlies any conception of justice."