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May 15, 2008

A month after Baze, has anything really changed?

Two articles this morning about on-going lethal injection litigation confirm my sense that the Supreme Court's Baze decision has done remarkably little to alter the legal fights over execution protocols or broader debates over the death penalty. 

This article from the Washington Post discusses a Fourth Circuit oral argument concerning Virginia's lethal injection process, and it shows lawyers and judges are still talking about whether a one-drug protocol ought to replace the current three-drug approach.  Similarly, this article from the News Journal discusses a federal district judge's plans to conduct essentially a full bench trial in order to examine the particulars of Delaware's lethal injection protocol.

Of course, last month's Baze decision upholding Kentucky's use of a three-drug execution protocol did finally enable states to resume plans for executions, and Georgia even managed to carry out a lethal injection last week.  But, even though some predicted a major rush of executions after Baze, this list of pending executions dates suggests it is unlikely that there will be more than the modern "usual" pattern of around 5 to 7 executions each month (and nearly all the executions are likely still to be concentrated in southern states).

Thus, it seems that all Baze really achieved was a brief national hiatus in executions and a new focal point for legal arguments in lethal injection litigation: state prosecutors will assert that their state's protocol and history is just like Kentucky's; defense attorneys will assert that the evidence shows otherwise.  Looking back a month after the Baze ruling, it is hard to see how the Supreme Court's decision to take up lethal injection protocols really advanced the capital ball much at all.

Some related posts:

May 15, 2008 at 10:02 AM | Permalink

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Comments

A month after a Supreme Court decision issues is a perfect time to assess its impact, especially if it doesn't apply to a lot of people.

Posted by: | May 15, 2008 10:14:45 AM

I think that your conclusion is premature. First of all, courts move slowly, and there was litigation in various courts around the country challenging the protocol. So, I don't think you can say, barely one month after Baze, that Baze didn't change much. Did anyone really expect that federal district courts were simply going to toss death row inmates out of court immediately after Baze?

Here are some of the things to look for in the coming weeks:

1) The US Supreme Court's disposition (set for conference today) of the lethal injection challenges of two Florida inmates, Schwab and Lightbourne. I suspect that the Supreme Court will deny cert. and dates will be set by Florida

2) Whether Alabama starts setting dates--is there a reason why it has not? Troy King asked for three dates (one which is now moot due to the death of the inmate) a while ago, and the Alabama Supreme Court has not acted.

3) The Emmett (Virginia DR inmate) 4th Circuit and Supreme Court litigation. If the Supreme Court lifts the stay it imposed, that will be an interesting signal given the ongoing litigation.

4) Ohio. Will the Ohio Supreme Court set dates for Cooey and Biros?

Posted by: federalist | May 15, 2008 10:17:46 AM

I forgot to mention Tennessee. There are a number of killers who have stays. I don;t think the Tennessee AG has moved to lift them.

Posted by: federalist | May 15, 2008 10:42:31 AM

If the last 32 years (since Gregg) have taught us anything, it's that NO opinion from the Supreme Court or any other is going to put a stop to litigation by death row inmates. They have no costs to bear, nothing to lose and generally a bit of time to gain by trying. So the suits will come by the boatload -- no colorably meritorious argument required.

Posted by: Bill Otis | May 15, 2008 1:58:15 PM

Yes, Bill, but what varies dramatically is the willingness of courts to entertain those claims and their willingness to move things along. That is why the time from sentence to execution is 5 years in Virginia and 20+ in California.

Posted by: Kent Scheidegger | May 15, 2008 3:37:13 PM

The courts go back and forth on this issue, almost as often as public opinion changes. Plus, remember that the US Supreme Court is largely conservative, with Elito, Roberts, Scalia and Thomas, so it'll be difficult to pass laws overturning too many dealth penalty matters without them being overturned by the court, at least until some of those justices step down.

Posted by: joe | May 15, 2008 3:38:34 PM

Kent,

With any luck, the beltway sniper won't take five years. Of course that will constitute a "rush to judgment" for the poor guy, who must have spent quite some effort rigging his snipermobile to have a little hole in the trunk where he could shoot the victims with a telescopic hunting rifle without so much as getting out of the car.

Every day I get up, I thank God I spent my career arguing in front of the Fourth Circuit instead of the Ninth.

Posted by: Bill Otis | May 15, 2008 4:48:41 PM

Joe, please give us an example of a case where a statute on the death penalty favorable to the defendant was declared unconstitutional by the "conservative" justices. I am not familiar with any such cases.

Posted by: Kent Scheidegger | May 15, 2008 5:11:41 PM

Joe:

"The courts go back and forth on this issue [the death penalty], almost as often as public opinion changes."

Actually, both public and judicial opinion on the death penalty has been remarkably stable. For more than thirty years, at least 60% of the public has favored capital punishment (the most recent figure is 69%). You can check this out the same way I did, by Googling "gallup death penalty."

During that same period, the courts also have not gone "back and forth" on the central question, i.e,, whether the death penalty violates the Eighth Amendment. With the recent exception of Justice Stevens, there is no evidence that any of the other eight sitting Justices believes that the death penalty is per se cruel and unusual punishment, and none of the federal circuit courts has held otherwise.

Posted by: Bill Otis | May 16, 2008 4:09:50 AM

Bill Otis wrote: "Actually, both public and judicial opinion on the death penalty has been remarkably stable. For more than thirty years, at least 60% of the public has favored capital punishment (the most recent figure is 69%). You can check this out the same way I did, by Googling 'gallup death penalty.'

"During that same period, the courts also have not gone 'back and forth' on the central question, i.e,, whether the death penalty violates the Eighth Amendment. With the recent exception of Justice Stevens, there is no evidence that any of the other eight sitting Justices believes that the death penalty is per se cruel and unusual punishment, and none of the federal circuit courts has held otherwise."

In other words, it's remarkably like slavery before the civil war and segregation before Brown v. Board. Plessy was a 7-1 decision. Scott was 7-2.

Posted by: DK | May 17, 2008 11:03:15 AM

DK:

Perhaps you could tell us under what circumstances overwhelming public and judicial consensus should be ignored in a society that values democratic self-government and the rule of law.

Posted by: Bill Otis | May 17, 2008 12:31:29 PM

DK:

Now that you're back on line, perhaps you could respond to another issue you raised with me about the death penalty.

In keeping with your view that I and millions of other people who support the death penalty are thereby "murderers," you said: "Do you not support killing? Do you not do so openly?"

I replied: "Yes, I do support killing, as does almost every other sane person, even while there is disagreement, to say the least, about the circumstances in which it is justified. Practically everyone supports killing when necessary in self-defense. Almost the same number supports killing when necessary in defense of an innocent third party. There was, and there seems to remain, widespread support for the killing that will necessarily go on, and is going on, in our war against al Qaeda terrorists in Afghanistan. There was nearly universal support for killing the Nazi enemy in WWII, even though it was known that this would entail killing thousands of innocent Germans as well. And relatedly, large majorities justifiably support government activities that they know will contribute to thousands of deaths (like building high-speed interstate highways), because overall the cost is judged to be worth it to achieve other important objectives."

So now let me turn the question back to you. In light of the examples set out above, from self-defense to making war against a malovolent enemy, "Do you not support killing? Do you not do so openly?"



Posted by: Bill Otis | May 17, 2008 12:49:05 PM

Ah, DK, there you are with such perspective--the execution of convicted murderers is compared to slavery and invidious racial discrimination. Dont you realize that such silliness takes you out of the realm of the reasonable?

Posted by: federalist | May 17, 2008 1:11:43 PM

feederalist:

DK marked himself as outside the realm of the reasonable when, a week ago, he said this: "Lincoln was a white supremacist from the civil war era, [one of] the kinds of people responsible for the politics that cause murder."

There were those of us who thought that Lincoln was a moral beacon, and was responsible for the politics that ended slavery, but I guess I've been fooled all these years.

Posted by: Bill Otis | May 17, 2008 1:40:23 PM

Bill wrote: "So now let me turn the question back to you. In light of the examples set out above, from self-defense to making war against a malovolent enemy, 'Do you not support killing? Do you not do so openly?'"

Ah, good point. Okay, let's try this one: do you not support the premeditated, methodical killing of people absent imminent threat to yourself or others? I'm out, and you're still in. (I thought these conditions would be assumed from the context.) So I should have asked, "Do you not support cold, calculated killing?"

Bill wrote: "Perhaps you could tell us under what circumstances overwhelming public and judicial consensus should be ignored in a society that values democratic self-government and the rule of law."

Sure: when the "overwhelming public consensus" is simply a manufactured product of elites like you. You may not have noticed this, but if you survey the world, use of the death penalty decreases as democratic values and institutions increase. It remains in the US because the US is, in truth, not a very democratic place. Democracies do not have extreme disparities in wealth like the US does. Democratic citizens do not vote to remain powerless and poor. Nor do they vote to deny themselves health care and housing. Nor in functioning democracies do they vote to deny their fellow citizens this. In fact, most people (and that isn't hyperbole, it is literally most people) in the US stopped voting at all a long time ago.

Americans are not scared of crime because of a considered judgment that crime is a realistic threat. They are scared of it because your class--which, incidentally, controls the media--conditions them to be. And Americans do not support the death penalty because of a considered judgment that the death penalty is a realistic solution. They support it because it is the only means your class makes available to channel their outrage.

You know, it's interesting, I was just at the dentist in a suburb of a large Southern city. Despite my inability to respond, the dental hygienist talked up a storm as she worked. Apparently, she is scared to go anywhere except for her work and home. Even though she lives in a nice suburban neighborhood, she won't get out at night at all. Citizens are not scared of each other in functioning democracies, Bill.

So let's get a democracy first, then let's talk about what support for the death penalty in such a society looks like.

Bill wrote: "There were those of us who thought that Lincoln was a moral beacon, and was responsible for the politics that ended slavery, but I guess I've been fooled all these years."

It isn't really subject to debate that Lincoln was a white supremacist ("I, as well as Judge Douglas, am in favor of the race to which I belong having the superior position"--few whites were not at the time) nor that the Civil War was not waged to end slavery (Lincoln expressly said it was not but to "save the Union").

federalist wrote: "Dont you realize that such silliness takes you out of the realm of the reasonable?"

Are you welcoming me to your club? No thanks. I'm confident it is clear who among us lacks reason (as well as compassion).

Posted by: DK | May 17, 2008 4:51:59 PM

DK:

Just so I'm straight about this, let me ask just two questions that can be answered yes or no.

1. Do you not support killing, and do so openly?

2. Do you regard yourself as morally superior to that "white supremacist" and death penalty supporter, Abraham Lincoln?

You have a tendency to make personal statements for which you have not a whisp of evidence, such as that I'm a Christian, and most recently (although not for the first time) that I am a member of the "ruling class."

In fact, you know nothing of my religious views or lack thereof, even if those things were relevant, which they are not. It's just an attempt to get some fake authority for your argument by invoking religion and hoping that will be sufficiently intimidating to quash any opposition to your views. Sorry about that.

As for my "class status": For reasons I trust are obvious, I do not give out a lot of personal information on a blog accessible to anyone in cyberspace. So I'm not going to say much directly about what "class" I'm in. But I will tell you about what "class" I come from.

My father was the son of German immigrants who came over on the boat with N-O-T-H-I-N-G. My grandfather tried to start a business but wasn't very good at it, so when he died, my father inherited debt and a mother and two sisters to support. They lived in a rowhouse in a not-too-desirable section of north Philadelphia.

But my father was a pretty determined person, and, unlike me, a good athlete. He went to Penn (the Wharton School) on an athletic scholarship (Penn had them back in those days). He started a business in another not-too-desirable part of town, and worked at it six days a week until two months before his death from cancer. His employees were all high school dropouts, and also mostly sons and daughters of immigrants, but they were good people, and they didn't mind work.

Three years after he founded the business, and before it really got going, the Depression hit. People all over town were getting laid off -- but not at his business. He did not lay off a single worker. He didn't know a lot about class warfare. He did, however, know a great deal about loyalty.

After the Depression and the War, the business prospered. When he died at 90, he had done very well. But he never thought of himself as anything other than the kid who had to save up to get a nickel to ride the trolley car, and he never let me or my siblings think any differently.

He taught us a few things, among them: Society doesn't owe you a living; pay your own bills and expect others to pay theirs; stop complaining and get to work; and you are responsible for your own life, no exceptions and no excuses.

He also taught us, by word and by his life, that the United States, far from being the oppressing menace you take it to be, was a blessing to the world; that it had done more to defeat evil and advance good than any country in history; and that it had given him more freedom and opportunity than he ever would have had if his parents had stayed in Europe, with all its supposed enlightenment.

That's where I come from. And for all your bile against this great country and its heritage, it's where I'll be staying.

Posted by: Bill Otis | May 17, 2008 6:24:00 PM

The fact that judges are appointed by the political branch explains why judges would reflect the opinion of the general public. However, death penalty supporters tend to ignore first, that there is a substantial minority in the U.S. who are opposed to the death penalty. The death penalty support is also much less deep - while people support the death penalty in theory, the actual practice of the death penalty is such that the support is much more shallow than most people realize - people are concerned about the risk of executing an innocent person for example. In any case, religious opposition to the death penalty is growing even among conservatives as more people come to the realization that the death penalty is incompatible with Christianity (and that is not a contention which can be seriously disputed). While U.S. law cannot and should not be controlled by religion, it is historically clear that religion plays a large roll in the political process (from slavery to prohibition to the civil rights movement). The continued support for the death penalty in the courts is either a failure of the courts to act given the failure of the political system to adequately protect Constitutional rights under the 5th, 6th, 8th, and 14th Amendments (and often the 4th as well) or a reflection of the political system depending upon your perspective.

Yes people still support the death penalty, but the death penalty is a dinosaur walking the earth. Eventually, it will disappear from the United States, but that is still a long ways off.

Posted by: Zack | May 19, 2008 2:04:44 PM

Zach:

"The fact that judges are appointed by the political branch explains why judges would reflect the opinion of the general public. However, death penalty supporters tend to ignore first, that there is a substantial minority in the U.S. who are opposed to the death penalty."

There was a much bigger minority who thought that Nixon should have beaten Kennedy. The answer, then and now, is: That's unfortunate, but majority rules.

"[D]eath penalty support is also much less deep - while people support the death penalty in theory, the actual practice of the death penalty is such that the support is much more shallow than most people realize - people are concerned about the risk of executing an innocent person for example."

Actually, support for the death penalty goes up, not down, when people are asked about specific cases. The best example of this is the McVeigh case, where, Gallup found, even a majority of those usually opposed to the death penalty on principle supported it in that instance. I am quite sure that the same or a similar phenomenon would be found if one were to poll whether the death penalty is warranted for the rapist/killer of Jessica Lunsford, or for the spree killings of the beltway sniper.

"In any case, religious opposition to the death penalty is growing even among conservatives as more people come to the realization that the death penalty is incompatible with Christianity (and that is not a contention which can be seriously disputed). While U.S. law cannot and should not be controlled by religion, it is historically clear that religion plays a large roll in the political process (from slavery to prohibition to the civil rights movement)."

If there were increasing opposition to the death penalty over the last few years from religious groups with millions and millions of adherants, and from those concerned about executing the innocent, then one would expect that support for the death penalty would have declined. Instead the opposite has happened. Over the last several years, support has increased from 65% to 69%, according to the Gallup Poll. Indeed, one of Gallup's most interesting findings is that, even though a majority thinks that an innocent person has been executed, fully half the poll respondents think the death penalty is NOT IMPOSED ENOUGH. (You can check this out by Googling "gallup death penalty").

"The continued support for the death penalty in the courts is either a failure of the courts to act given the failure of the political system to adequately protect Constitutional rights under the 5th, 6th, 8th, and 14th Amendments (and often the 4th as well) or a reflection of the political system depending upon your perspective."

The Constitution simply does not contain a bar on capital punishment in any of its provisions. Indeed, at the time the Constitution was adoopted, and through the amendments you cite, the death penalty could be imposed for many more crimes, and with many fewer safeguards, than now. There is next to no evidence that the Founders viewed the death penalty as impermissible on either legal or moral grounds.

"Yes people still support the death penalty, but the death penalty is a dinosaur walking the earth. Eventually, it will disappear from the United States, but that is still a long ways off."

Increasing prevalence is not generally perceived as a sign of coming extinction. Given the increasing prevalence of death penalty support in this country over the last several years, I think your prediction stands on shaky ground.


Posted by: Bill Otis | May 19, 2008 3:13:02 PM

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