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September 25, 2007

Baze already creating haze around Texas execution

As noted by Capital Defense Weekly and StandDown Texas Project, reports from Texas indicate that a lethal injection execution scheduled for this evening has been delayed.  However, as this AP article reveals, no one is yet quite sure whether this is a ripple effect from the Supreme Court's cert grant today in Baze.

UPDATE:  This new AP report indicates that Texas went forward with its execution tonight "after the U.S. Supreme Court rejected [the defendant's] request for a reprieve because of the court's earlier decision in a Kentucky case to review whether lethal drugs used in executions are unconstitutionally cruel."

September 25, 2007 at 08:47 PM | Permalink

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Comments

The reason that Texas delayed its execution of Richard is its (in my view) silly policy to delay executions if there is a pending appeal, rather than simply carrying out the execution if there is no stay in place.

That the Supreme Court allowed the execution to take place is heartening. This was a brutal crime that happened 21 years ago, and final justice had already been delayed in order to evaluate the defendant's Atkins claims.

The world is a better place without Michael Richard in it.

Posted by: federalist | Sep 25, 2007 10:04:26 PM

Does this mean there won't be a de facto moratorium? Did this inmate actually have lethal injection litigation pending, or was his "request for reprieve" just a shot in the dark?

Posted by: anonymouse | Sep 25, 2007 10:13:00 PM

He had an Atkins claim, which was rejected by the Supreme Court, then he filed a lethal injection claim with the Supreme Court, which was turned down also--does anyone know if there were any dissenters?

My guess is that some courts "out of abundance of caution" will stay some of these executions. (Of course, this abundance of caution shows zero consideration for victims' families who may not want to be jerked around.) I doubt that the Virginia execution will go forward, as Governor Kaine will likely decide that the execution should await the Supreme Court ruling, given Gov. Kaine's opposition to capital punishment.

It will be interesting to see what happens in Ohio. Cooey's appeal is pending there. If the Supreme Court denies cert., there should be no reason not to set dates for all the Ohio killers whose execution dates have been stayed by Judge Frost.

Posted by: federalist | Sep 25, 2007 10:21:55 PM

I think most interesting will be what they do with the Taylor cert. petition from Missouri. Will that be decided Monday?

Posted by: anonymouse | Sep 25, 2007 10:28:51 PM

federalist, I share your relief that he is dead, and also that the state didn't have to wait a single extra day to do it. We can only pray that he experienced lots and lots of excruciating pain during those blissful 9 minutes that the pancuronium bromide was flowing; that would make Texas's alacrity here especially worthwhile.

Posted by: td | Sep 25, 2007 10:58:00 PM

Why does every post about death penalty law turn into an retentionist vs. abolitionist rant in the comments? Can't we discuss the actual legal issues raised by the post? There are plenty of pro- and anti-death penalty blogs. This isn't one of them. It's a legal blog. Take your rhetoric there.

Posted by: anonymouse | Sep 25, 2007 11:10:41 PM

Who's an abolitionist here? I have no problem with the death penalty, I just frankly find it abhorrent that there are those who favor speedy executions above all else (particularly for "federalism.")

Fact is, the issue that SCOTUS will hear is whether it's cruel and unusual to use 1 chemical out of 3 in the lethal injection cocktail which does absolutely nothing to kill the convict quicker, but only causes excruciating pain, and has been banned for use in animals.

Texas could have killed the guy just as easily, with less pain, and cheaper, by using a one- or two- drug cocktail. And all the posturing about state's rights and federalism doesn't change the fact that it's simply sadistic to use the more painful method of execution, when there's no benefit to it.

It's not anti-death-penalty to be anti-sadism.

Posted by: td | Sep 25, 2007 11:25:41 PM

anony:

My understanding is that Taylor won't be decided until later in the fall, if not this winter.

With that stated, I suspect that it will be held pending disposition of the Baze litigation.

I also suspect that a line will be drawn between cases without "serious" execution dates pending at the time cert was filed (e.g., Baze & Taylor) and those with serious execution dates (e.g., Richard). The "without" group gets held pending disposition of Baze, the "with" group is on their own to get their stay someplace other than the Court, at least for now.

Posted by: karl | Sep 25, 2007 11:50:58 PM

Sadism involves the deliberate infliction of pain. A procedure that is designed to be painless (and no one seriously disputes that it is designed to be painless), by definition is not sadism. It is sadistic, in my view, to jerk victims' families around. Last-minute stays do just that.

Karl, your analysis may be correct, but it is not logical. Why should a defendant who wouldn't otherwise be entitled to a stay (because of limitations issues or because he should have filed his claim earlier) get one now? Defendants who have lost their federal habeas appeals have been on notice that a date could be set at any time. Why didn't they file earlier?

Posted by: federalist | Sep 26, 2007 12:23:51 AM

I'm a bit confused -- how does a muscle relaxant cause "excruciating pain"? If, of course, this relaxant had that effect, someone should let the makers of Pavulon know so that hospitals across the country can stop using it. Or perhaps someone should inform the FDA about those effects. Or maybe, just maybe, this drug doesn't cause excruciating pain as claimed. Not a doctor, so I just can't be certain.

Posted by: JustClerk | Sep 26, 2007 8:02:22 AM

JustClerk,

Pavulon itself does not cause the pain. Rather, it masks the pain caused by the potassium chloride. As Anesthesiologist Mark Heath says, Pavulon acts as a "chemical veil" that prevents effective monitoring of whether prisoner's have reached a surgical plane of anesthesia before injected with potassium chloride, which everyone agrees would be inhumane to inject into a conscious person.

Posted by: anonymouse | Sep 26, 2007 10:13:48 AM

I understand that -- but that's what undermines the argument that banning pancuronium bromide in animal euthanization supports an 8th amendment claim. The drug itself causes no pain and that's certainly not the reason it was banned from use in euthanizations. As such, one cannot use that correlary to support an argument that legislatures have recognized that the use of PB is cruel/unusual.

Posted by: JustClerk | Sep 26, 2007 10:38:24 AM

I'm not sure I understand your argument. The drug INDIRECTLY causes pain by preventing monitoring of pain caused by other drugs. And that is precisely the reason it was banned in animal euthanasia. The claim isn't that administration of Pavulon in and of itself is cruel and unusual. It is that using Pavulon in combination with an unstable, short-acting anesthetic and with an excruciatingly painful final drug is cruel and unusual. The claim is in the combination, not in the single drug.

Posted by: anonymouse | Sep 26, 2007 11:01:38 AM

jd, your sarcasm went over my head. Still, I do wish there were less sniping and more discussion of legal issues here of all places.

Posted by: anonymouse | Sep 26, 2007 11:04:35 AM

So, it's cruel and unusual to prevent the condemned from expressing their pain? I think the infliction of the pain is the heart of an 8th amendment claim. It is completely disingenuous to say that it "indirectly" causes the pain. It it wholly unrelated to the cause of the pain. There is no dispute that it may mask the level of pain, but I still fail to see how that is cruel and unusual. Would it not be an 8th Amendment violation then to place the condemned in "excruciating pain" so long as he's able scream about how much it hurts?

Posted by: JustClerk | Sep 26, 2007 11:32:16 AM

JustClerk,

The point is not at all expressive. As I said, "Pavulon . . . prevents effective monitoring of whether prisoners have reached a surgical plane of anesthesia before injected with potassium chloride." Administering anesthesia is a complicated business. When prisoners are paralyzed, it is impossible to tell whether it has been done right. Here is the causal chain:
(1) Potassium chloride causes extroardinary pain if injected into a conscious person, (2) maintenance of a surgical plane of anesthesia is required to render a person unconscious to that pain, (3) maintainence of a surgical plane of anesthesia requires, inter alia, monitoring movement and response to noxious stimuli, (4) pancuronium bromide blocks movement and response to noxious stimuli and thus blocks monitoring of anesthetic depth, THEREFORE administration of pancuronium bromide increases the risk of pain.

I just don't see what's so difficult about that.

Posted by: anonymouse | Sep 26, 2007 11:51:09 AM

JustClerk,

The point is not at all expressive. As I said, "Pavulon . . . prevents effective monitoring of whether prisoners have reached a surgical plane of anesthesia before injected with potassium chloride." Administering anesthesia is a complicated business. When prisoners are paralyzed, it is impossible to tell whether it has been done right. Here is the causal chain:
(1) Potassium chloride causes extroardinary pain if injected into a conscious person, (2) maintenance of a surgical plane of anesthesia is required to render a person unconscious to that pain, (3) maintainence of a surgical plane of anesthesia requires, inter alia, monitoring movement and response to noxious stimuli, (4) pancuronium bromide blocks movement and response to noxious stimuli and thus blocks monitoring of anesthetic depth, THEREFORE administration of pancuronium bromide increases the risk of pain.

I just don't see what's so difficult about that.

Posted by: anonymouse | Sep 26, 2007 11:52:09 AM

That's my point, though. The only way that pancuronium bromide has any detrimental effect is if the anesthetic is screwed up and you can't tell. That, however, is an argument about the underlying flaws in the system dealing with the qualifications of the executioner, etc. Everyone agrees that the cocktail, when properly administered, does what it's supposed to. First, renders you unconscious, second paralyzes you, third stops your heart. Thus, the argument raised would have to be that the risk associated with using a paralytic is so great that the cocktail= cruel and unusual. I don't think you can get there.

Posted by: JustClerk | Sep 26, 2007 12:11:50 PM

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