Sentencing Law and Policy

Split Sixth Circuit panel upholds Tennessee's lethal injection procedures

Today in Harbison v. Little, No. 07-6225 (6th Cir. July 2, 2009) (available here), a (divided) Sixth Circuit panel declares that Tennessee's lethal injection protocol is constitutionally sound. Here is how the majority opinion starts:

Edward Jerome Harbison is a Tennessee prisoner under death sentence who has exhausted all appeals and was denied a writ of habeas corpus.  In 2006, Harbison filed a complaint under 42 U.S.C. § 1983, challenging Tennessee’s lethal injection protocol.  The district court granted judgment in favor of Harbison, holding that the protocol violated the Eighth Amendment.  The state defendants (State) appealed, relying on the Supreme Court’s decision in Baze v. Rees, 128 S. Ct. 1520 (2008), which was decided after the district court decision in this case.  Baze upheld Kentucky’s lethal injection protocol and held that a substantially similar protocol would not violate the Eighth Amendment.  Finding Tennessee’s protocol substantially similar, we vacate the district court’s judgment and remand for further proceedings.

Here is the heart of the complaint about this ruling coming from Judge Clay in his dissent:

By failing to provide the district court with an opportunity to consider Tennessee’s protocol in light of Baze, the majority effectively usurps the district court’s role as a factfinder and decides an issue never presented to the district court: whether there are material differences between Kentucky’s and Tennessee’s lethal injection protocols.  As a court of appeals, we are obligated to provide the district court with the first opportunity to receive evidence and rule on this question. Because I would remand this case for an evidentiary hearing in light of Baze, I respectfully dissent.

Notable new paper on doctor involvement in executions

I just learned from a helpful reader about this new article by Ty Alper on SSRN titled, "The Truth about Physician Participation in Lethal Injection Executions." Here is the abstract:

This Article addresses an aspect of Baze v. Rees (the Court’s recent lethal injection decision out of Kentucky) that has received little attention but threatens to have a significant impact on the way in which the holding of Baze is implemented in other states.  In short, several of the Justices’ opinions in Baze were premised on the faulty notion that doctors cannot and will not participate in executions.  As a result, several Justices appeared to rule out the feasibility of a remedy requiring physician participation, and openly expressed suspicion of the motives of lawyers who would propose such a remedy.

This Article seeks to expose two myths that have come to dominate the capital punishment discourse: first, that requiring physician participation would grind the administration of the death penalty to a halt; and second, that advocacy for such a requirement is a disingenuous abolitionist strategy as opposed to a principled remedial argument.  As the Article demonstrates through a review of available research and recent litigation, doctors can, are willing to, and in fact do regularly participate in executions.  States, however, have strategically emphasized the positions of national medical associations (the ethical guidelines of which are not binding on doctors) and exaggerated their inability to find willing doctors.  They have also exploited the activism of the death penalty abolitionist movement, which has long decried physician participation in executions.  Lawyers for death row inmates -- many of whom consider themselves abolitionists -- have argued in litigation that skilled anesthetic monitoring by trained medical professionals is a necessary component of a constitutional three-drug lethal injection protocol.  Abolitionist calls for discipline of medical professionals who participate in such executions directly undermine the credibility of this position, and feed the perception that death penalty lawyers are talking out of both sides of their mouths.

Lower courts now grappling with how to implement Baze should know the truth about physician participation.  The requirement that trained medical personnel monitor lethal injection executions to ensure that inmates do not suffer excruciating pain should remain on the table as a plausible remedy.  Courts should recognize the discussion in Baze on this issue for what it is: dicta, unaided by the record, and based on unfounded assumptions.

Pace of executions remains slow and not so steady six months after Baze

The Death Penalty Information Center has now posted here its latest accounting of all the executions in the United States since the Supreme Court upheld the constitutionality of Kentucky's lethal injection protocol in Baze v. Rees.  As I have noted before, I find it remarkable not only that we have had roughly four executions per month (all in traditional death penalty states), but also that we have not seen any post-Baze increase in executions even though the Baze case led to a halt of all executions for over six months.

It is also interesting to see from this list of upcoming executions at DPIC that very few states other than Texas seem to be setting serious execution dates.  Also of note from this list is that Ohio is the only state other than Texas with more than one upcoming execution date, even though Ohio has not gone forward with an execution in almost 18 months. 

Some related recent posts:

• A month after Baze, has anything really changed?
• Three months after Baze, has anything really changed?
• Do special procedures help preserve the US death penalty?
• Three more uneventful(?) lethal injections, including one with a political spin
• Waiting and waiting and waiting on the row
• Did the Supreme Court's work in Baze matter at all?

Did the Supreme Court's work in Baze matter at all?

The DPIC has this recent item discussing the details of the 20 executions in months since the Supreme Court "resolved" the constitutionality of lethal injection protocols through its decision in Baze v. Rees.  When I look at the data, I find it remarkable not only that we have returned to four or five executions each month all in traditional death penalty states, but also that we have not seen any post-Baze increase in executions even though the Baze case led to a halt of all executions for over six months.

It seems that, even when the Supreme Court stirs up the pot, the modern dynamics and pacing of execution realities are hard to disrupt significantly. 

Some related recent posts:

• A month after Baze, has anything really changed?
• Three months after Baze, has anything really changed?
• Do special procedures help preserve the US death penalty?
• Three more uneventful(?) lethal injections, including one with a political spin
• Waiting and waiting and waiting on the row

Three more uneventful(?) lethal injections, including one with a political spin

As detailed in this DPIC list, Mississippi and Texas and Virginia all completed executions over the last few days, and I have not seen any reported problems with the lethal injection protocols used in these executions.  Perhaps all the Baze litigation has helped motivate state official to make extra sure that the lethal injection process is conducted in as carefully as possible.  I cannot recall reports of any serious problems with any of the 15 executions that have now taken place over the last three months since the Baze de facto moratorium was lifted after the Supreme Court's ruling.

Though technologically uneventful, this local report from Mississippi highlights that its execution had an interesting political spin as a result of the condemn's last words:

Before he died Wednesday evening, death row inmate Dale Leo Bishop apologized to his victim's family, thanked America and urged people to vote for Democratic presidential candidate Barack Obama. "For those who oppose the death penalty and want to see it end, our best bet is to vote for Barack Obama because his supporters have been working behind the scenes to end this practice," Bishop said....

A Lee County jury convicted Bishop in 2000 of participating in the murder of Marcus Gentry, who was beaten to death in December 1998 with a claw hammer. His body was found along a logging road near Saltillo.  Bishop did not deliver the fatal blows. He became only the eighth person put to death who did not directly kill his victim among the more than 1,100 executed since the U.S. Supreme Court reinstated the death penalty in 1976 -- not including contract killings.

Bishop's final words were: "God bless America.  It has been great living here.  That's all."  Bishop called Gentry's beating death on Dec. 10, 1998, a "senseless and needless act."  Earlier in the day, Bishop described the fatal beating as "a fight that had gone too far," state Corrections Commissioner Chris Epps said....

Bishop, who was mentally ill, asked a judge for the death penalty after he was convicted.... The other man convicted of Gentry's murder, Jessie Johnson, who was tried separately, is serving a life sentence. Protesters have used the disparity in the two sentences to illustrate the injustice they say is inherent in the death penalty.  Under Mississippi law, an accessory before the fact can be convicted of the same crime someone else commits.

I doubt the Obama campaign will be eager to embrace the endorsement of a mentally ill, now-executed defendant.  Nevertheless, the fact that Bishop coupled his political advocacy with a set of patriotic last words ("God bless America.  It has been great living here.") provides yet another example of intriguing realities that attend the final moments before a state imposes the ultimate punishment.

Three months after Baze, has anything really changed?

Back in May in this post, I asked "A month after Baze, has anything really changed?".  Two months later, this observation from that prior post still seems spot on: "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....  Looking back [now three months] 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."

To be more specific, one can check out the execution data from the DPIC:  there have been ten executions over the last three months, nine of which were by lethal injection and all of which took place in those southern states that have traditionally executed the most offenders.  This list of upcoming executions shows the usual pattern of five to ten executions scheduled for each of the next few months, all concentrated in traditional execution states and most likely to be conducted by lethal injection.

Today, notably, two lethal injection executions are scheduled for today: one in Texas and one in Virginia.  But, beyond the usual local stories about the condemned and their crimes and the standard broader debate over the death penalty (such as this new anti-DP piece from notable New York activist and uni-brother), I do not see any continuing national discussion or debate about execution methods in general or about the pace of executions in particular.

Lethal litigation to continue with dueling doctors in the first state

As detailed in this local article, the post-Baze litigation excitement in Delaware is taking place in local federal court.  Here is the latest news from an article headlined "Doctors to testify on lethal injections: Each side in death-penalty suit to bring in an anesthesiologist":

A federal judge said she was "stunned" on Monday that Delaware has not adopted a U.S. Supreme Court-approved standard for carrying out executions to resolve a lawsuit challenging the state's use of lethal injection.  District Judge Sue L. Robinson said it was clear to her that there are differences between Delaware's execution protocols and those used in Kentucky, which the high court found met constitutional muster earlier this year.

However, Robinson said, she does not believe she is qualified to tell if the differences are significant or not. "It is not a question of law. I need expert testimony." So she set Sept. 10 to hear from opposing experts in the class-action lawsuit brought by Delaware's death-row inmates.  The civil action charges that the state's policies are so flawed -- and rarely followed -- that they violate the constitutional protection against cruel and unusual punishment.

Texas not yet able to get back in execution business

As detailed in this Houston Chronicle article, headlined "Killer's execution delayed; Texas lethal injection was to resume, but Harris County inmate gets new stay," Texas executions are still being stalled by lethal injection concerns. Here are the basics:

Condemned double-murderer Derrick Juan Sonnier received a reprieve about two hours before he was to walk into Texas' death house Tuesday, the second time he has escaped execution. The Texas Court of Criminal Appeals granted a stay of execution after the Texas Defender Service, a watchdog capital punishment group, filed two last-minute appeals in the 40-year-old man's case.

Sonnier was sentenced to die for the 1991 stabbing deaths of Melody Flowers, 27, and her 2-year-old son Patrick...

In its appeals, the Texas Defender Service argued that the state made changes May 30 to its lethal injection protocol that have not been reviewed by any court. Its second appeal argues that the lethal injection protocol violates Eighth Amendment protections against cruel and unusual punishment, an issue raised in two other cases pending before the state court.

Attorney David Dow, of the defender service, said the Texas court's stay was an appropriate move given that it has not yet ruled on the lethal injection process. The prison system, he added, must also provide more details about the procedure it follows to carry out capital punishment.

Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice, said the system's protocol has not changed. Prison officials, she said, made changes to internal written procedures in light of the Supreme Court's ruling, but the procedure remains the same. Among the additions made, she said, the prison system spelled out the amount of training executioners receive. "We clarified in writing what we were already doing," Lyons said. "The protocol remains the same."

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:

• Spinning Baze for lower courts
• Bronx cheer for return of executions
• How might state-law-based challenges to lethal injection fare after Baze?
• The state-specific realities of post-Baze execution timelines
• Looking at post-Baze realities in Florida
• Lots of praise for Baze and for capital punishment federalism
• The post-Baze uncertainty and litigation begins
• Georgia poised to have first post-Baze lethal injection execution

Justice Stevens horsing around about lethal injections

I headed home early from the Sixth Circuit Judicial Conference, and so I missed Justice Stevens speaking at the big conference dinner.  But this local report suggests Justice Stevens was his usual sharp commentor on the legal (and sporting) news of the day:

Supreme Court Justice John Paul Stevens drew a round of applause Friday night in Chattanooga when he suggested that the recently-euthanized Kentucky Derby horse Eight Bells had probably experienced a more humane death than those who die on death row.

“I had checked the procedure they used to kill the horse,” Justice Stevens said, expressing surprise to learn it is against the law in Kentucky to kill animals using one of the drugs in a three-drug lethal injection cocktail that many believe is cruel to humans.

Also, this companion MP3 link records Justice Stevens talking about having interviewed Ty Cobb in his pre-judiciary days.

Some related posts:

• Spinning Baze for lower courts
• Bronx cheer for return of executions
• How might state-law-based challenges to lethal injection fare after Baze?
• The state-specific realities of post-Baze execution timelines
• New study confirms we do not treat murderers like dogs
• Lethal injection complaints going to the dogs
• A great animal irony in the Baze oral argument

Spinning Baze for lower courts

Elisabeth Semel has this new piece in The National Law Journal, headlined "Fearing too much justice," which tries its darnedest to argue that Baze should be viewed by lower courts and state officials not as a green light for resuming lethal injection executions, but rather as a yellow light calling for additional caution and inquiry concerning modern execution realities:

Chief Justice John G. Roberts Jr.'s plurality opinion establishes that the court is primarily concerned with whether states are able to successfully administer the first drug in the three-drug formula — the anesthetic.  Failure of that first drug results in a "constitutionally unacceptable" risk of suffocation and excruciating pain.   On the limited facts before the court, Roberts took the view that delivery of the anesthetic is a relatively simple endeavor.  But in other states, where courts have allowed full inquiry into lethal injection protocols, it has become apparent that getting the first dose "right" is not a simple matter.....

The plurality opinion in Baze may succeed — as Roberts intended — in precluding stays of execution when the demonstration of substantial risk is not greater than that presented by the Kentucky record.... [But] if courts allow discovery of execution records and depositions of executioners, outcomes will be different than they were in Baze.  They may well resemble the result in Tennessee, where a federal district judge found that "due to lack of training and other issues," the state's "new protocol poses a substantial risk" that the inmate "will not be unconscious when the second and third drugs are administered."  Or trial courts may find, as did a federal judge in California, that the record, "is replete with evidence that in actual practice the [state's protocol] does not function as intended."

Judicial fear of too much litigation, too much inquiry and too much truth about how the death penalty operates is a familiar one.  In 1987, in McCleskey v. Kemp, the court held that a reliable statistical study showing the likelihood that racial prejudice influences Georgia capital sentencing decisions could not be used to establish race discrimination in the decision to sentence Warren McCleskey to death. The majority opinion, authored by Justice Lewis Powell, made much, as did Roberts' opinion, of the constitutional legitimacy of capital punishment and of federalism. Central to the ruling, however, was the concern that "McCleskey's claim, taken to its logical conclusion," would instigate challenges to discrimination at every level of the criminal justice system. Dissenting, Justice William J. Brennan Jr. responded that the fear of "apocalyptic consequences" was, rather, "a fear of too much justice," and the fact that the death penalty was the legislatively adopted norm in most states was unpersuasive given the issues at stake: "death and race."

It was scrutiny that the majority in McCleskey feared. It is scrutiny that some members of the current Supreme Court fear. It is certainly scrutiny that departments of corrections fear. In 1991, Powell stated that if he could change his vote in any case it would be the one he cast 14 years earlier in McCleskey.  If trial courts allow discovery to go forward in lethal injection challenges, we will not have to wait 14 years for some justices to reconsider what went wrong in Baze.

Actually, I think that what some members of the current Supreme Court truly fear is what Semel and other death penalty opponents often seem eager to seek: the de facto elimination of the death penalty through persistent constitutional litigation rather than de jure reform through the democratic process.  The fear is not of too much justice, but of too much persistent effort by death penalty abolitionists to achieve through the courts what they have not been achieve through the ballot box.

I do not begrudge sincere efforts by death penalty opponents to argue forcefully against state killing (just as I do not begrudge other sincere "culture of life" advocacy against abortion and doctor-assisted suicide).  I am, however, consistently troubled when death penalty abolitionist advocacy is directed so forcefully toward courts rather than at politicians and the public.

Some related post-Baze posts:

• Bronx cheer for return of executions
• How might state-law-based challenges to lethal injection fare after Baze?
• The state-specific realities of post-Baze execution timelines
• Looking at post-Baze realities in Florida
• Lots of praise for Baze and for capital punishment federalism
• The post-Baze uncertainty and litigation begins
• Georgia poised to have first post-Baze lethal injection execution

How might state-law-based challenges to lethal injection fare after Baze?

One of many interesting aspects of all the lethal injection litigation over the last few years has been the tendency of some state courts to take up challenges to modern execution protocols based primarily on state statutory or constitutional law.  It is hard to predict how state-law-based challenges may fare in the wake of last month's Supreme Court decision in Baze finding no federal constitutional problems with Kentucky's lethal injection protocol.

Interestingly, as detailed in this media round-up at the blog StandDown Texas Project, a state court hearing about the Ohio's lethal injection protocol this week produced some notable fireworks.  Here is an excerpt from this AP report on the Ohio court hearing:

A prosecutor accused a judge Tuesday of making arguments on behalf of two men challenging the state's method of executing prisoners.

Ruben Rivera and Ronald McCloud, who are accused of separate murders and could receive death sentences if convicted, are disputing the state's lethal injection process, saying it doesn't provide the quick and painless death required by Ohio law. Lorain County Common Pleas Judge James Burge, who intends to make a ruling before July, held a hearing Tuesday to discuss testimony from two anesthesiologists who took the stand last month.

When Burge began questioning language in Ohio's lethal injection statute, assistant county prosecutor Tony Cillo bristled, saying the judge was helping the American Civil Liberties Union make its case. "The court is now making arguments for the plaintiff and that is not the court's role," said Cillo, complaining that he could not prepare for arguments that the ACLU had not raised. "You're supposed to know all of them," Burge said.

The disagreement started over a highly technical question. Burge raised the issue of whether the words "quickly and painlessly cause death" in the statue should be applied not only to the dosage of the lethal injection drugs, but to how they are administered.  In an earlier hearing, Cillo questioned whether Burge already had formed an opinion on the death penalty, noting that the ex-defense attorney has a photo of former client James Filiaggi in his office. Filiaggi was executed last year.  "The court's role is to presume it's constitutional," Cillo said Tuesday. "I do," Burge said. Burge then held a long recess.

Some related post-Baze posts:

• The state-specific realities of post-Baze execution timelines
• Looking at post-Baze realities in Florida
• Media round-up in wake of Baze
• Lots of praise for Baze and for capital punishment federalism
• The post-Baze uncertainty and litigation begins
• Now that Baze is out, when and where will there be the first "new" execution?
• Georgia poised to have first post-Baze lethal injection execution

The state-specific realities of post-Baze execution timelines

This new local AP article from Ohio highlights that each death penalty state is going to move at its own pace concerning when and how to try to move forward with lethal injection executions after Baze.  Here are some excerpts from the piece:

Ohio officials have been less swift and less aggressive than leaders from some other states at moving to restart executions after a U.S. Supreme Court decision ended a seven-month national pause to killing inmates.

Ohio, which not long ago had one of the nation's busiest death chambers, is led by a governor who has said he is not comfortable with the death penalty and top law enforcement officer who has said he thinks "we can do better" in applying it.  Gov. Ted Strickland has the power to cancel or delay death sentences, and Attorney General Marc Dann's office fights against death row inmates' appeals.

Since the U.S. Supreme Court decided April 16 to allow Kentucky's lethal injection process that is similar to the one used in Ohio and many others, states including Texas and Mississippi already have scheduled executions.  And governors in states such as Florida have said the execution process should now resume.  Ohio has not set any execution dates yet, and top officials have made no public requests for quick action....

After the Supreme Court decision came out, this is what Strickland said about applying it to Ohio: "You would just think that because the methodology is quite similar that the legal outcome would be similar as well. But I just don't want to make that assumption without having a little deeper understanding about what they said."

Contrast that with what Charlie Crist, the Republican governor of Florida, said when praising the court's ruling: "Justice delayed is justice denied, and an awful lot of families of the victims have been waiting for justice to be done, and so that's certainly an important factor." Crist said he asked his lawyers to provide him with death warrants to consider signing, after which execution dates would follow.

Ohio has 184 inmates on death row, many of them exhausting their final appeals.  Three death-row inmates are likely to be among the first set for execution: Clarence Carter, Kenneth Biros and Richard Cooey, who lost what may be his final appeal last week.  Only Texas had more executions in 2006 and 2007 combined than Ohio, which tied with Oklahoma at seven.  Ohio has executed 26 inmates since it resumed executions in 1999.

Some related post-Baze posts:

• Looking at post-Baze realities in Florida
• The post-Baze uncertainty and litigation begins
• Now that Baze is out, when and where will there be the first "new" execution?
• Media round-up in wake of Baze
• Lots of praise for Baze and for capital punishment federalism

Looking at post-Baze realities in Florida

Yesterday's broadcast of NPR's "All Things Considered" had this segment titled "Opponents Challenge Death Penalty in Florida."  Here is the summary:

Florida officials are eager to resume carrying out death penalties following this month's Supreme Court decision, which found that Kentucky's use of lethal injection does not constitute cruel and unusual punishment.  State officials say Florida's lethal injection protocols follow what the Supreme Court approved in Kentucky.  But attorneys for death row inmates say Kentucky is different from Florida.

Some related pre- and post-Baze posts:

• The post-Baze uncertainty and litigation begins
• Now that Baze is out, when and where will there be the first "new" execution?
• Media round-up in wake of Baze
• Lots of praise for Baze and for capital punishment federalism
• Florida's LI Commission has final recommendations
• Florida gov seeks national LI review

Looking at the Justices' methods in Baze

At FindLaw, Michael Dorf has this new essay, titled "How the Supreme Court's Lethal Injection Ruling Elevates Appearances Over Reality." Here is how it starts:

Last week, in Baze v. Rees, the U.S. Supreme Court rejected a constitutional challenge to Kentucky's administration of the death penalty via lethal injection.  To say that the case divided the Justices would be a gross understatement.  There was no opinion for the Court as a whole, and the nine Justices wrote a total of seven separate opinions.

In the short term, the Baze decision will result in the resumption of executions, which had been subject to a de facto moratorium since the Court agreed to hear the case.  In the long term, the decision's likely impact is unclear.

The controlling opinion of Chief Justice Roberts finds insufficient evidence in the record to support a conclusion that Kentucky's administration of its three-drug lethal injection poses a "substantial risk of serious harm," and thus to warrant the Court's ruling that it constitutes cruel and unusual punishment in violation of the Eighth Amendment.  However, the Chief Justice's opinion leaves open the possibility that such evidence might be found in a different case from a different state. For the next few years, therefore, we are likely to see challenges to the application of lethal injection in various states, and eventually the issue may return to the Supreme Court.

Whatever the ruling's ultimate practical impact may be, however, the Baze decision is important for the mode of reasoning the Court employs.  The controlling opinion by Chief Justice Roberts — joined by Justices Kennedy and Alito — appears to endorse the proposition that the state can expose people to an increased risk of an excruciating death on what amount to merely aesthetic grounds.

Self-serving paternalism: reflections on Baze and law school learning bans

Another full read of Baze led me to a couple unexpected insights: (1) the Justices are very comfortable using 21st-century materials, even as some law schools and professors try to preserve 20th-century teaching norms, and (2) the raging debate over banning laptops or the Internet in law school classrooms is somewhat akin to the debate between Justices Stevens and Scalia in Baze concerning a constitutional ban on state use of capital punishment.  Let me explain each insight in turn:

1.  In the Baze lethal injection ruling from SCOTUS, a majority of the Justices' opinions (4 of the 7) cited to websites, and I counted a total of 13 references to website materials.  Among the cites, Justice Stevens' referenced a forthcoming law review article now appearing only on SSRN, and two opinions cited to two distinct transcripts from legal proceedings that have been made widely available through on-line posting.  I am not sure if all these citations officially make Baze the most web-friendly ruling in Supreme Court history, but they clearly reveal that the Justices understand that effective judging in the 21st century — and thus effective lawyering in the 21st century — requires an Internet connection.

And yet, on the very same day that the web-friendly Baze decision is released, we get this report that the University of Chicago Law School is now blocking student access to the Internet in classrooms "to help them concentrate on course instruction."  Even though the Justices now clearly appreciate that effective judging and lawyering in the 21st century requires an Internet connection, the super-smarties at the University of Chicago Law School apparently now believe that being an effective law student requires preservation of a 20th-century teaching environment by banning Internet connection in the classroom.

2.  I realize that I am troubled by Internet bans and laptop bans in the law school classroom for some of the same reasons that Justice Scalia is troubled by Justices Stevens' advocacy in Baze for a constitutional ban on the death penalty.  Responding to Justice Stevens' arguments that the death penalty is now unconstitutional, Justice Scalia laments what he sees as misguided (and constitutionally inappropriate) self-serving paternalism: "Purer expression cannot be found of the principle of rule by judicial fiat.  In the face of Justice Stevens’ experience, the experience of all others [such as legislatures, social scientists, and citizens] is, it appears, of little consequence.... It is Justice Stevens’ experience that reigns over all."

I have the same reaction to all the professorial self-congratulation about the positive impact of banning the Internet or laptops in the classroom.  I can fully appreciate why the experience of some law professors — particularly those professors who use only traditional casebooks and have not updated their teaching materials, styles or notes in light of modern technology — might be improved if students cannot access 21st-century technologies in the classroom.  But I have never thought that my experience in the classroom, rather than the experience of my students, is of paramount importance.  Thus, unless and until my students tell me that they prefer a classroom setting without laptops or the Internet (or alumni/practitioners tell me that a web-friendly classroom was not helpful training for their future careers), I will keep trying to create and improve a 21st-century classroom experience for students rather than self-servingly conclude that preserving a 20th-century teaching environment is needed "to help [students] concentrate on course instruction."

Cross-posted at LSI

The post-Baze uncertainty and litigation begins

As detailed in this effective post at SCOTUSblog, the post-Baze uncertainty and litigation has started before the ink on the Baze ruling is even dry.  Here are snippets from the SCOTUSblog post:

The state of Florida moved quickly on Thursday to get Supreme Court permission to carry out the execution of a death-row inmate, and a prisoner in Mississippi asked the Court to rule itself or tell a lower court to rule on his challenge to that state’s execution procedure.  These were the first filings in the Court in the wake of Wednesday's ruling upholding the basic elements of execution by use of lethal drug injections.

These filings, indicating that developments following the decision in Baze v. Rees (07-5439) will unfold rapidly, came in cases in which the Justices had delayed scheduled executions at a time when the Court was not permitting any state to go forward with a death sentence.

The two filings demonstrated that death-penalty states believe that the informal moratorium the Court has had in effect is now entirely over, so new executions may be scheduled as the states choose, and that lawyers for death-row inmates in states other than Kentucky are going to try to keep the inmates away from the death chamber while contesting the specifics of other states' procedures.

Florida filed a motion to vacate the stay the Supreme Court had issued on Nov. 15 in the case of Mark Dean Schwab (pending petition 07-10275); it also filed a brief opposing Schwab’s appeal....

In the new Mississippi filing, a supplemental brief, lawyers for death-row inmate Earl Wesley Berry contended that the lethal injection procedures used in that state provides fewer safeguards than under Kentucky's procedures for avoiding "serious harm" to the inmate during the execution process.  The case is Berry v. Epps, 07-7348.  The Court stayed his execution on Oct. 30.

Some related recent posts:

• Now that Baze is out, when and where will there be the first "new" execution?
• Media round-up in wake of Baze
• Lots of praise for Baze and for capital punishment federalism

Media round-up in wake of Baze

How Appealing collects here a lot of the national media reaction to the Supreme Court's work in the Baze lethal injection case decided today.  And, with the help of Google News, I can provide links to local stories suggesting that many states (but not all) will try to get execution chambers humming again quickly:

• Lethal injections set to resume in Texas from the AP

• California may resume executions by year's end from the Los Angeles Times

• Arkansas AG: Too soon to say whether executions can proceed from the AP

• Following Supreme Court decision, Georgia moves to execute condemned killers from the Atlanta Journal-Constitution

• Executions to resume in Oklahoma from the AP

• Executions won't resume in Md. from the Baltimore Examiner

• Va. Governor Reinstates Executions After Ruling from the Washington Post

UPDATE:  Howard has collected more major media coverage of Baze here and here.

Lots of praise for Baze and for capital punishment federalism

I suspect the nearly 100-page Baze lethal injection ruling from SCOTUS today will be subject to a lot of criticism, in part because the array of disparate opinions provide lots of fodder for anyone who want to beat up on the Court as a whole or on just about any particular Justice.  Indeed, I likely will take some pot shots at the Court's work once I have a chance to read all the Baze opinions closely.  However, my first reaction to the opinion upon a quick skim is to heap lots of praise on the Court's collective work.  Here's my thinking:

1.  The Court collectively merits lots of credit for relatively speedy work on such an important and challenging case.  I was worried state would might have to wait until June for an opinion, but it is now clear that the Justices prioritized getting this case completed so that the urgent business of the death penalty can move forward.  Though lacking a clear and strong majority opinion, the Baze ruling still gives states and lower courts a lot of needed constitutional guidance on execution protocol issues.

2.  In part because it is lacking a clear and strong majority opinion, the Baze decision provides a little something for everyone.  Though I suspect that the anti-death-penalty crowd will be disappointed with the outcome, I suspect many will suggest the "loss" here is mitigated by lots of textured language to be found in all of the opinions.  Similarly, the pro-death-penalty crowd may be disappointed that the opinions of Justices Scalia and Thomas did not carry the day, I suspect they will take comfort in Al Davis's old saying, "Just win, baby."

3.  In part because the Baze decision provides a little something for everyone, the Baze decision's true impact will largely be decided by local officials (including state judges and "local" federal district judges).  Those local officials eager to get executions going again will have new wind behind the sails of an argument that standard lethal injection protocols are constitutionally sound; those local officials content with the de facto moratorium status quo can use various parts of Baze to justify claims that everyone should go slow as officials re-examine execution protocols in light of the Supreme Court's new guidance in Baze.

4.  In part because the Baze decision's true impact will largely be decided by local officials, the politics and practicalities of the death penalty can, should and likely will now largely return to where they belong — namely in the hands of local officials, most of whom are elected and politically accountable.  I often view the death penalty in America as an example of modern federalism at its finest: states with an affinity for the death penalty can spend (waste?) a lot of time and money on capital cases, while states less excited about this punishment can reject its use de jure or de facto in various ways.

Now that Baze is out, when and where will there be the first "new" execution?

Before even having a chance to consume the nearly 100-page Baze lethal injection ruling from SCOTUS today, the basic outcome has me now wondering which state will be the first to get its execution chamber up and running again and when the current de facto moratorium on executions will be officially ended.

The easy guess is that Texas will be the first to have a post-Baze execution, but I might put money on the possibility that some other state will beat Texas to the death punch.  And, though I suspect we may see an execution before the end of the month, I would not be surprised at all if death penalty abolitionists find aspects of the Baze ruling that enable them to bring further challenges to execution protocols.

Insights and predictions on post-Baze realities are both welcome and encouraged in the comments.

Some related posts on Baze-ian execution realities:

• Can we learn anything from five months without executions?
• Wondering once more about the broader impact of a de facto execution moratorium
• Are botched executions inevitable?
• Examining why states have not tried improving execution protocols
• Can doctors block all US lethal injections (and indirectly abolish the death penalty)?
• Finding Bickel Gold in a Hill of Beans (my article about last SCOTUS lethal injection case)
• My debatable PENNumbra views on Baze
• Is it time to seriously consider alternatives to lethal injection?
• New study confirms we do not treat murderers like dogs
• What will be the ripples of Baze in the states?
• Is the developing moratorium on executions risking innocent lives?
• Virginia Gov announces (quasi-)moratorium on executions until Baze