So now it's official.
Ohio will definitely not be killing Charles Lorraine tomorrow.
You remember. Judge Frost stayed the execution because Ohio's demonstrated refusal to obey a protocol the state invented and that he found to be constitutional means that executions here are ad hoc events, made up on the fly. As a consequence, he said, they violate equal protection.
The Sixth Circuit agreed.
[T]he State's ongoing conduct requires the federal courts to monitor every execution on an ad hoc basis, because the State cannot be trusted to fulfill its otherwise lawful duty to execute inmates sentenced to death.
At first, it appeared that Mike DeWine, Ohio's Attorney General, would not appeal that decision. Then he talked with the Governor and they decided to take it up, to ask the Supreme Court to life the stay. But not this week. According to AP, they need a couple of weeks to get their arguments together for the big Court in DC.
Mike DeWine, our Attorney General has said that he'll ask the Supreme Court to lift the stay, but he won't be doing that for a couple of weeks. From his press release:
"We do not believe the stay of execution the federal courts have imposed here is warranted under the Constitution," DeWine said. "We want to give the U.S. Supreme Court an opportunity to review this case to ensure that there is a consistent constitutional approach to capital punishment. Ohio's execution process must comply with constitutional standards, and that should be the test as far as the federal courts are concerned."
Oddly, that's what the federal courts wanted, too. And it's what they said Ohio provided in its protocol.
Except, of course, that Ohio wouldn't follow its protocol.
So here's the problem.
Ohio wants to do the same thing every time. Except it wants to be able to make it up as it goes along every time. Which isn't the same thing.