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December 9, 2016

After split tied SCOTUS stay vote, Alabama completes last scheduled execution of 2016

As reported in this AP piece, the final scheduled execution in the United States in 2016 had a number of noteworthy events and elements for those who support and those who oppose capital punishment.  The AP article is headlined "Alabama inmate coughs, heaves 13 minutes into execution," though I think the SCOTUS action that proceeded the actual execution should be of particular interest for law geeks.  Here are some of the details:

A man who killed an Alabama convenience store clerk more than two decades ago was put to death Thursday night, an execution that required two consciousness tests as the inmate heaved and coughed 13 minutes into the lethal injection. Ronald Bert Smith Jr., 45, was pronounced dead at 11:05 p.m., about 30 minutes after the procedure began at the state prison in southwest Alabama. Smith was convicted of capital murder in the Nov. 8, 1994, fatal shooting of Huntsville store clerk Casey Wilson. A jury voted 7-5 to recommend a sentence of

life imprisonment, but a judge overrode that recommendation and sentenced Smith to death. Smith heaved and coughed repeatedly, clenching his fists and raising his head at the beginning of the execution. A prison guard performed two consciousness checks before the final two lethal drugs were administered.

In a consciousness test, a prison officer says the inmate's name, brushes his eyelashes and then pinches his left arm. During the first one, Smith moved his arm. He slightly raised his right arm again after the second consciousness test. The meaning of those movements will likely be debated. One of Smith's attorneys whispered to another attorney, "He's reacting," and pointed out the inmate's repeated movements. The state prison commissioner said he did not see any reaction to the consciousness tests....

Alabama uses the sedative midazolam as the first drug in a three-drug lethal injection combination. Smith and other inmates argued in a court case that the drug was an unreliable sedative and could cause them to feel pain, citing its use in problematic executions. The U.S. Supreme Court has upheld the use of the drug....

Wilson was pistol-whipped and then shot in the head during the robbery, court documents show. Surveillance video showed Smith entering the store and recovering spent shell casings from the bathroom where Wilson was shot, according to the record. In overriding the jury's recommendation at the 1995 trial, a judge likened the slaying to an execution, saying Wilson had already been pistol-whipped into submission and Smith ignored his pleas for mercy. Wilson had a newborn infant at the time of his death. "The trial court described Smith's acts as 'an execution style slaying.' Tonight, justice was finally served," Alabama Attorney General Luther Strange said in a statement after the execution.

U.S. Supreme Court justices twice paused the execution as Smith's attorneys argued for a delay, saying a judge shouldn't have been able to impose the death penalty when a jury recommended he receive life imprisonment. Four liberal justices said they would have halted the execution, but five were needed to do so.

Smith's attorneys had urged the nation's highest court to block the planned execution to review the judge's override. Smith's lawyers argued a January decision that struck down Florida's death penalty structure because it gave too much power to judges raises legal questions about Alabama's process. In Alabama, a jury can recommend a sentence of life without parole, but a judge can override that recommendation to impose a death sentence. Alabama is the only state that allows judicial override, they argued. "Alabama is alone among the states in allowing a judge to sentence someone to death based on judicial fact finding contrary to a jury's verdict," attorneys for Smith wrote Wednesday.

Lawyers for the state argued in a court filing Tuesday that the sentence was legally sound, and that it is appropriate for judges to make the sentencing decision....

Alabama has been attempting to resume executions after a lull caused by a shortage of execution drugs and litigation over the drugs used. The state executed Christopher Eugene Brooks in January for the 1993 rape and beating death of a woman. It was the state's first execution since 2013. Judges stayed two other executions that had been scheduled this year.

December 9, 2016 at 07:44 AM | Permalink


No courtesy stay vote from Roberts, as he got burned with Arthur--the 'rats still haven't had enough time to look at that case.

Posted by: federalist | Dec 9, 2016 11:41:50 AM

Guy died. Four justices didn't think he should have, at least yet. Didn't say why. Think that's wrong. They in other contexts repeatedly talk about showing their work.

It's not the only openness concern I have with the Supreme Court. Like them giving summaries of bench statements to the press but not the general public. (Oyez.com eventually provides them, but it should be on its website). But, it's pretty blatant.

Posted by: Joe | Dec 9, 2016 1:05:03 PM

On the merits, the voice of the community voted 7-5 for life imprisonment.

We can debate on the constitutionality or good policy of the judge not taking their recommendation. But, even if one supports the death penalty, it's fairly notable. For "law geeks" and others probably.

Posted by: Joe | Dec 9, 2016 1:39:39 PM

Every time this happens - a botched execution procedure as this clearly was - another nail is driven into the death penalty. 30 minutes to die? Whether conscious or not there is no-one who can put their hand on their heart (except federalist of course) and say that this does not represent a cruel and unusual punishment. Because the Supreme Court justices, state courts and politicians continue to allow this to happen, their offices are demeaned. They may believe their responsibility is to a few archaic words written in an historical context of primitive justice and social/political turmoil, but they ignore the expectation of wise men, the founders of that constitution, that US society and its systems of governance and law, including the constitution itself, would grow, mature and give more than lip service to the advances of civilization. The constitution wasn't drawn up by referendum, it was written and approved by true leaders of the day. They could not know how society, its industry and technology would be transformed through the ages. The constitution, while it continues to be interpreted in its archaic form and context, is strangling the development of civilized society. The founders were not Gods, they were men of courage and intelligence, but more than that, they were true leaders who secured the trust of the people with a fine document for its time. It is right that its key provisions be honored and maintained, but it must reflect and be reflected in the context of the needs and expectations of the present. There are times when, despite its population diversity, which reflects the ancestry of other nations, the US appears a stagnating society in comparison with them. A super-power it may be, but there is little super about its politics, which is entirely driven by rich men and women (mainly white rich men), its systems of justice which are both cruel and inefficient, or its society which suffers from extremes of inequality reflected in degrees of poverty and homelessness that surely the founders would have despaired of after all this time. An isolationist America is going no-where to address or solve these issues. The wrongs, indignities and humiliations imposed on so many do not reflect a healthy, vibrant or mature society. It is time more were concerned at that and time too for men who would lead the US and its institutions to voice and plan a different vision for the future. Leaders do not sit on fences, blowing in the wind of populism.

Posted by: peter | Dec 9, 2016 5:08:54 PM

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