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May 21, 2008

Life and death realities as states press on with the death penalty

Lots of death penalty news and notes being well covered in the blogosphere:

  • SCOTUSblog here reports that the Supreme Court has denied stay requests from the Mississippi defendant scheduled to be executed by tonight

And Capital Defense Weekly has effective additional coverage and links on these topics and others.  Also, I notice that the CDW execution data suggests we could have as many as nine executions over the next four weeks.

UPDATE:  The AP has the very latest news here:

Mississippi corrections officials say convicted murderer Earl Wesley Berry has been executed at the state penitentiary.  Berry is the second U.S. inmate executed since the Supreme Court upheld Kentucky's lethal injection procedure in April.  His appeals were denied by the high court and he was put to death by injection at 6:15 p.m. CDT Wednesday.

May 21, 2008 at 06:34 PM | Permalink

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Here's a link to an 11th Circuit order in a Georgia death case: http://www.ca11.uscourts.gov/opinions/ops/200715680ord.pdf

Note one of the panel judges, Rosemary Barkett. I guess she got the memo.

Posted by: federalist | May 21, 2008 7:27:06 PM

For the moment, it looks like the prediction that death penalty opponents would succeed in stringing out Baze's de facto moratorium -- by claiming in multiple suits that the protocols of State X are actually different from those approved in Baze -- isn't working out too well.

The problem with the Baze moratorium was always that it was building up a reservoir of executions that would cascade if and when the dam was broken by a government victory in that case.

The abolitionist strategy, in other words, had a disadvantage behind its advantage. And as a strategic matter, there are no grounds for complaint now that the advantage is spent and the disadvantage has come home to roost.

Posted by: Bill Otis | May 21, 2008 7:33:37 PM

Bill:

I hate to disagree, only one serious x-date outside the 4th, 5th or 11th circuits, circuits notoriously hostile to rights of capital litigants. Far from ineffectual, the li moratoriums continue for half of the nation's death row..

Posted by: karl | May 21, 2008 7:40:40 PM

Karl makes a good point, but the reality is that Baze was decided a little less than a month ago. Arkansas will likely set some dates in the near future, as will Missouri (Missouri has a ton of death row inmates who have exhausted appeals.)

Current litigation is holding up things in California, Delaware and Ohio--and the feds haven't seem to have moved on the 3 or 4 prisoners whose executions were stayed by the DC District Court. Tennessee has not moved either. Alabama's failure to set execution dates is strange. One would have thought that Alabama would have set dates quickly.

In any event, like I said, it's only been a month.

When karl says "hostile to rights of capital litigants", he really means "follow the law".

Posted by: federalist | May 21, 2008 7:50:06 PM

Fed:

I would suggest you ask "justice seeker" who I think works in Alabama in the AG's capital crime unit.

Posted by: karl | May 21, 2008 9:11:30 PM

karl, any predictions on the pending Ga. execution?

Posted by: federalist | May 21, 2008 9:49:21 PM

Karl:

"I hate to disagree, only one serious x-date outside the 4th, 5th or 11th circuits, circuits notoriously hostile to rights of capital litigants. Far from ineffectual, the li moratoriums continue for half of the nation's death row."

This is a little like saying the dam is holding except for the quarter of it that's collapsed.

(In fact, it's a good deal more than a quarter, since the states that actually execute convicted killers are concentrated in the 4th, 5th and 11th circuits).

I concur in federalist's observation that it is mistaken to refer to these courts as "hostile to [the] rights of capital litigants." For example, I'll take the 4th Circuit's record in the Supreme Court on capital litigation (or anything else) over the 9th Circuit's anytime.

Posted by: Bill Otis | May 21, 2008 10:00:40 PM

The Alabama Attorney General's Office has requested execution dates in four cases. I expect the Alabama Supreme Court to set these dates soon.

Posted by: justice seeker | May 21, 2008 10:27:15 PM

Justice seeker, didn't one of those guys moot the request, as he left the earth before justice could be done?

Posted by: federalist | May 21, 2008 10:37:36 PM

I continue to find it interesting and spurious that the bar for mental retardation keeps getting raised by death penalty appeal lawyers and their lackeys. With the most recent appeals they claim it is now 75, no longer the 69 and below.

Posted by: Bill | May 22, 2008 5:45:41 AM

Considering that both sides are going to play games with the question of “what makes a tard” (a prosecutor once referred them as ‘tards”), I don’t see why it surprises you that someone seeking to preserve a life is going to argue that a higher numerical indicator of a very mushy test is the “bar” for allowing the state to “kill a ‘tard.”

Posted by: S.cotus | May 22, 2008 7:19:45 AM

S.cotus:

"Considering that both sides are going to play games with the question of 'what makes a tard' (a prosecutor once referred [to] them as ‘tards'), I don’t see why it surprises you that someone seeking to preserve a life is going to argue that a higher numerical indicator of a very mushy test is the 'bar' for allowing the state to 'kill a ‘tard.'”

What more specific test for retardation would you propose to replace the "mushy" one we have now? I'm not trying to pick a fight; I'd actually like to hear ideas.

P.S. I am a different person from the commenter who signs as "Bill."

Posted by: Bill Otis | May 22, 2008 8:31:04 AM

Federalist,

Your post references Daniel Siebert, an Alabama death row inmate who died of pancreatic cancer. He had raised an as applied claim, as opposed to a general lethal injection challenge, that alleged the pain medication he was receiving would counteract the effect of the lethal injection drugs. The 11th Circuit had a stay of execution in place to allow Siebert to litigate that claim. So the short answer to your question is that he is not one of the four inmates referenced in my previous post.

Posted by: justice seeker | May 22, 2008 9:35:00 AM

Bill, I could not disagree more with your statement about the 4th Circuit. The 4th Circuit is extremely hostile to protecting personal rights against governmental power in both criminal and civil law and far from following the law has repeatedly tried to move the law to the right. But hey, I guess that actively attempting to move the law to the right is practicing "judicial restraint" according to the modern conservative parlance. Still I can't imagine any real conservative or judicial conservative (using any rational definition of conservatives since real conservatives actually believe in limited government and judicial restraint and would not so blithely dismiss government violations of constitutional rights as being "harmless") actually approving of the 4th Circuit.

Posted by: Zack | May 22, 2008 10:59:54 AM

Zack, does the Fourth get summarily reversed by per curiam opinion? The Ninth does.

And let's face it, the Fourth's position on Dickerson was clearly the right one.

Posted by: federalist | May 22, 2008 11:33:55 AM

Zach:

It's not the 4th Circuit that's trying to move the law to the right. It's the 9th that's trying to move it to the left. Indeed it's been trying for years. Just yesterday, I see, the 9th Circuit became the first (and only) appellate court to overturn the longstanding policy instituted by President Clinton of "don't ask, don't tell." Whatever else might be said of this, it's hardly indicative of a non-activist court.

Be that as it may, I'll wager you 100 bucks that the 9th Circuit's reversal rate in the Supreme Court over the last 20 years vastly exceeds that of the 4th. Wanna bet?

One other thing. I'm always amused when liberals try to define what a "real conservative" would do. It inevitably turns out that the "real conservative" would do what the liberal wants done. Fancy that!

Certainly conservatives want limited government -- but limited in the Constitutional sense, not limited in the sense of being reluctant to act decisively against criminals. A limited government in the Constitutional sense would, for example, have and use the death penalty, as it was used at the time the Constitution was written on many more crimes, and with many fewer safeguards, than now.

A limited government in the Constitutional sense would also recognize that, for example, intelligence-gathering practices essential in wartime are left to the commander-in-chief, as they have been throughout the country's history (until now), and are not the province of the judicial branch.

But I digress. I've still got my money on the 4th Circuit. If you want to put yours on the 9th, we're on.

Posted by: Bill Otis | May 22, 2008 5:18:41 PM

Bill, I do not bet, and since we both live in Virginia (I believe you said that), its illegal for you to even offer. However, I'm going to ignore that crime because I know that you are just trying to hide that you know you have a weak position.

See, I know that your position is unsupportable and I know why it is unsupportable both statistically (the 9th Circuit hears many times more cases than the 4th Circuit or any other circuit for that matter, I've heard that something like 25% of all federal cases originate in the 9th Circuit) and practically (the 9th Circuit is hardly liberal in a lot of areas of the law and in fact, some of the Supreme Court reversals have been cases where the 9th took a more conservative position than the Supreme Court). Fact is, being a practicing attorney who tries to keep up with my practice area (a specialized area of federal law) I know that in many areas especially some substantive federal criminal law, a lot of business law, and immigration law, the 9th has positions which can be fairly described as conservative (and at times to the right of that taken by other circuits). Yes, it is true, at times, the Supreme Court has taken more liberal positions than the "liberal" 9th Circuit. Has the recent Supreme Court ever taken a position more conservative than the 4th Circuit?

If believing in due process for the accused makes one a liberal, I happily admit to being a liberal. If believing that courts should protect individual rights against the government makes one a liberal, I happily admit to being a liberal. Your slurs mean nothing to me - because as a student of history as well as law, I know that being called a liberal is a badge of honor, not shame.

The myth of the "liberal" 9th Circuit has been repeatedly exposed by law professors and journalists who have taken the time to study it. The fact that you resort to such a repeatedly disproven myth speaks volumes.

Posted by: Zack | May 27, 2008 1:15:05 PM

Zach:

1. "Bill, I do not bet, and since we both live in Virginia (I believe you said that), its illegal for you to even offer."

What I said was that, when I was still in the government, I was an AUSA for the Eastern District of Virginia. But feel free to file any report with the police you may like, as long as it's truthful.

If I held your positions, I wouldn't bet either, and my reluctance wouldn't have anything to do with legal prohibitions (just as your reluctance doesn't).

2. Your post is long on TALK about facts and figures but short on ACTUAL facts and figures, much less some from a documented, neutral source. Nor do you provide a citation to even a single case, and still less the numerous cases you would need, in order to support the sweeping claims you have made about, among other things, the Fourth Circuit's supposed disrespect for individual rights.

3. "If believing in due process for the accused makes one a liberal, I happily admit to being a liberal. If believing that courts should protect individual rights against the government makes one a liberal, I happily admit to being a liberal. Your slurs mean nothing to me - because as a student of history as well as law, I know that being called a liberal is a badge of honor, not shame."

I take it that you are also a student of self-congratulation. You get an A+ (to go with your badge of honor).

Posted by: Bill Otis | May 27, 2008 3:26:34 PM

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