Sentencing Law and Policy

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

Baze is confused and other SCOTUS news

I had an inkling the Supreme Court might decide the Baze lethal injection case, and SCOTUSblog reports here that my inkling was right:

In a widely splintered decision, the Supreme Court cleared the way for executions to resume across the country, concluding that the most common method of lethal injection does not violate the Constitution. The final vote was 7-2 in Baze v. Rees, although there was no opinion that spoke for five or more Justices. The Court’s plurality adopted as a standard for assessing the validity of an execution method whether it poses a “substantial risk of serious harm.” It rejected the death row inmate’s proposal that the standard be “unnecessary risk.”

In addition, as reported here by SCOTUSblog, the Court also handed down two statutory interpretation sentencing cases, with notable results and votes:

The Supreme Court, in the first of its rulings on Wednesday, decided that druk driving is not a “violent felony,” at least for purposes of an enhanced prison sentence under the Armed Career Criminal Act.  The ruling, written by Justice Stephen G. Breyer, came on a 6-3 vote in Begay v. U.S. (06-11543). In a second decision on an enhanced sentencing law, the Court ruled that a drug crime that is punishable by more than one year in prison is a “felony drug offense” even if state law classifies it as a misdemeanor.  The unanimous ruling came in the case of Burgess v. U.S. (06-11429).

In short, there is a lot to talk about in the sentencing world today, and here are links to the raw material I will need to consume before being able to comment intelligently:

Today’s opinion by Justice Breyer in Begay v. United States (06-11543) is now available here. Justice Scalia filed an opinion concurring in the judgment. Justice Alito filed a dissenting opinion, in which Justices Souter and Thomas joined.

Today’s unanimous opinion by Justice Ginsburg in Burgess v. United States (06-11429) is now available here.

Today’s opinion in Baze v. Rees (07-5439) is now available here. The Chief Justice announced the judgment of the Court and delivered an opinion in which Justices Kennedy and Alito joined. Justice Alito also filed a concurring opinion. Justice Stevens and Breyer each filed an opinion concurring in the judgment. Justice Scalia and Thomas each filed an opinion concurring in the judgment, in which the other joined. Justice Ginsburg filed a dissenting opinion in which Justice Souter joined.

Electrifying capital issue from Nebraska (on path to GVR?)

This local story provides this electrifying news about Nebraska's death penalty system:

The Nebraska Supreme Court on Wednesday refused to reconsider its decision that electrocution is unconstitutional.  The decision was handed down by the court in response to Attorney General Jon Bruning’s request for another hearing in the case. The court did not explain its decision.

It didn’t come as a surprise — Bruning had said he didn’t expect judges who made the landmark decision to change their minds.  “Nebraskans overwhelmingly support the death penalty. We’ll do everything possible to ensure the sentences of the state’s worst murderers are carried out,” he said Wednesday. His office plans to appeal to the U.S. Supreme Court.

If and when the Nebraska AG seeks cert on this issue, I think the US Supreme Court would be inclined to GVR the case back to the state courts after the Justices establish a general legal standard for method of execution cases in Baze.

Some related posts:

• The Nebraska Supreme Court finds electrocution unconstitutional
• Justices take another long break without resolving Baze
• Examining why states have not tried improving execution protocols
• Is it time to seriously consider alternatives to lethal injection?
• My debatable PENNumbra views on Baze

Local court starts examining Ohio's execution protocol

This AP story provides some highlights from the first day of a state court litigation concerning Ohio's lethal injection protocol:

An anesthesiologist testified Monday that Ohio's lethal injection procedure isn't appropriate for dogs or cats, let alone humans. Dr. Mark Heath's testimony on behalf of two murder defendants came in a Lorain County hearing on the constitutionality of state's method for putting prisoners to death.

Heath, an assistant professor of anesthesiology at Columbia University, says it's possible to perform lethal injection of prisoners in a humane manner, but that Ohio's method falls below the standard for euthanizing household pets....

Heath testified that the design of Ohio's death house was problematic because it separates the inmate from the person administering the drugs in two separate rooms.  The rooms are separated by a one-way mirror. “Doing it that way substantially increases the risk of a major problem occurring,” said Heath, adding later, “I would never induce general anesthesia from a different room through long tubing.”...

Difficulties with two executions in recent years, in which the execution team struggled to find suitable veins in inmates' arms, brought complaints that the method is unconstitutionally cruel and unusual.

Ohio officials stand by the procedure. The state was expected to counter with expert witness Dr. Mark Dershwitz, an anesthesiologist from Massachusetts, who will testify via video conference Tuesday.

Some recent related posts:

• 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
• Should medical boards be able to bar doctor involvement in executions?
• My debatable PENNumbra views on Baze
• Can doctors block all US lethal injections (and indirectly abolish the death penalty)?

New study confirms we do not treat murderers like dogs

As this AP story details, examination of lethal injection protocols is not awaiting a Supreme Court ruling in Baze.  Here is the latest news based on the latest research:

Nearly all lethal injection executions have occurred in states where veterinarians are not allowed to use the same method to euthanize animals, according to a new study.

One of the three drugs used in executions, the one that paralyzes the condemned inmate, has been banned from use in animal euthanasia by at least 42 states, said the study author Ty Alper, a death penalty opponent and associate director of the Death Penalty Clinic at the University of California-Berkeley School of Law.  Those states include the five leaders in lethal injections — Texas, Oklahoma, Virginia, Missouri and North Carolina — and account for 907 of the 929 executions that have been carried out by that method since 1982.

More details on the new study and related issues are available here from Lethal Injection.org.  The new study by Ty Alper, which is titled "Anesthetizing the Public Conscience: Lethal Injection and Animal Euthanasia," is available at this link.

Some related posts:

• Lethal injection complaints going to the dogs
• A great animal irony in the Baze oral argument
• Should medical boards be able to bar doctor involvement in executions?
• Examining why states have not tried improving execution protocols
• Is it time to seriously consider alternatives to lethal injection?
• My debatable PENNumbra views on Baze
• Can doctors block all US lethal injections (and indirectly abolish the death penalty)?
• Justices take another long break without resolving Baze

Lethal injection complaints going to the dogs

Sherry Colb has this essay online at FindLaw, titled "Lethal Injection and Animal Euthanasia: A Fair Comparison?". Here are excerpts:

One argument that surfaces repeatedly in debates about lethal injection revolves around a comparison with the practice of euthanizing pets.  Opponents of the three-drug cocktail have claimed that one of the chemicals used was deemed inhumane by the American Veterinary Medical Association (AVMA) in connection with euthanizing animals....

Some opponents of lethal injection ... have argued that euthanasia protocols demonstrate a shocking reality — namely, that animals are treated more humanely than human beings undergoing lethal injection.  Those who take this view express outrage at the prospect of veterinarians exercising greater care in guarding against the suffering of mere dogs and cats than our society exercises in protecting the human beings in our custody.  Clearly, the argument goes, we have our priorities badly distorted if we are placing the needs of animals over those of human beings.  But is that a fair characterization of the facts? ...

Despite the important distinctions to be drawn between pets and condemned murders and between pets and animals generally, the humane approach to euthanizing pets may nonetheless be instructive to the Supreme Court as it considers execution by lethal injection....

Ultimately, then, the humane euthanasia of suffering pets teaches us that we can do better by our death row population, even if we are not yet prepared to abolish capital punishment.  At the same time, it should teach us that we can do far better by the domesticated animals on whom we blithely and unnecessarily inflict suffering and death in the cause of satisfying our appetite for flesh.  The planned death of a beloved pet helps show us just how far we have to travel to make the truly humane treatment of animals a reality.

Virginia Gov announces (quasi-)moratorium on executions until Baze

Because the Supreme Court has already created a de facto moratoirum on executions nationwide (which has now gone on more than six months), I am not sure this new moratorium story from Virginia is really big news.  Nevertheless, the details seem worth a mention:

Virginia Gov. Timothy M. Kaine (D) announced today a moratorium on executions until the U.S. Supreme Court decides whether lethal injection amounts to cruel and unusual punishment.

Kaine delayed the scheduled April 8 execution of Edward Nathaniel Bell, who killed a police officer in Winchester in 1999, until at least July. Along with that decision, Kaine said future scheduled executions will also be put on hold until after the Supreme Court makes its ruling in the case Baze v. Rees. "Stays in the final hours before an execution can take an emotional and physical toll on those who must prepare for the execution," Kaine said in explaining his decision.

Kaine's move is largely symbolic because the Supreme Court hasn't allowed an execution to move forward since it took up the Baze v. Rees case in September. The case centers on challenges from two death row inmates in Kentucky. The justices could rule by July. Bell's execution date now is set for July 24.

Justices take another long break without resolving Baze

Lawyers and judges in state and lower federal courts in regions with active capital punishment systems are accustomed to speedy appellate litigation in which complicated death penalty issues must be resolved sometimes in a matter of days or hours because of a looming execution date.  I suspect some of these lawyers and judges will join me in being disappointed and concerned with how long the Supreme Court is taking with the Baze lethal injection case.

We are now approaching six months since the Justices took up the Baze case in September, and it has been nearly two full months since the Court heard oral arguments in Baze.  In my view, neither the legal or factual issues in Baze are that complicated.  Moreover, the Justices have had the benefit of two recent ruling in this area (Hill and Nelson), and also the benefit of lots of lower court and amici input.

If Chief Justice Roberts was genuinely committed to having the Justices act more like a court and less like law professors, he would have made sure Baze was resolved quickly.  Expedited action in this setting seems especially important if, as some suggest (here and here), that the SCOTUS moratorium on executions may be costing hundred or even thousands of innocent American lives because of diminished deterrence.

Joyfully, I do not think recent homicide data supports a claim that the SCOTUS moratorium on executions is costing lives.  Nevertheless, I do think it is troublesome that the Justices have kept the modern death penalty in suspended animation as the Justices take their sweet time deciding an issue critically important to the future status of the American system of capital punishment.  Perhaps Congress could and should pass a law preventing the Justices from going on any kind of book tour when important death penalty cases are pending.

This kvetchy post is primarily the result of the fact that, according to this post at SCOTUSblog, the Justices this morning resolved two complicated cases that were both argued after Baze.  In addition, it appears that the Court now goes on hiatus for a few weeks, so that March 18 may be the next chance for an opinion in Baze (and I am not holding my breath we will see a ruling then).  Maybe it is time to tweak Justice Jackson's famous quip about the Supreme Court to read: "We are not slow because we are infallible, but we are slow only because we are final."

SCOTUS grants last-minute execution stay in Alabama

According to this new AP story, a "murderer scheduled to die in what would have been the nation's first execution in months won a last-minute reprieve Thrusday from the U.S. Supreme Court, prison officials said."  Here's more from the AP report:

James Harvey Callahan, set to die at 6 p.m., was granted a stay, Holman prison warden Grant Culliver told officers on death row.  The inmate's attorney had asked the high court to halt the execution after a federal appeals court lifted a stay granted by a Montgomery judge.  It would have been the nation's first execution since Sept. 25, the day the U.S. Supreme Court agreed to consider whether lethal injection is cruel and unusual punishment.  THIS IS A BREAKING NEWS UPDATE. Check back soon for further information.

UPDATE:  This blog post from the Birmingham News provides a few more specifics:

The U.S. Supreme Court at 4:45 p.m. today issued a stay delaying the execution of convicted killer James Callahan, who was scheduled to die by lethal injection at 6 p.m. today.  Callahan was convicted of the 1982 kidnapping and murder of Jacksonville State University student Rebecca Howell....

Prison officials said Callahan's family is "overjoyed" that the execution has been delayed....  Alabama had tried twice before to become the first state to resume executions, but both of those executions also were stopped by the courts.

Is an Alabama execution possible this week after Eleventh Circuit lifts a stay?

It has been a long time since any lower court has generated serious execution news over the last three months as the Baze lethal injection de facto moratorium settled in.  However, as detailed in this brief AP piece from Alabama, a "federal appeals court has lifted a stay of execution for James Harvey Callahan, who is scheduled to be executed Thursday.  But it could be delayed again by the U.S. Supreme Court, which has not yet ruled on lethal injection."

The federal appeals court making the news is the Eleventh Circuit, which just released this split panel opinion in which the majority explains that "in light of the fact Callahan’s complaint was filed more than two years beyond the limitations period, the district court abused its discretion by entering a stay of execution."  The opinion is an interesting read, and there is little doubt that additional litigation developments will follow soon.  Stay tuned.

UPDATE:  Over at SCOTUSblog, Lyle Denniston has this new post about this Alabama litigation.  Here is how that post begins:

Three weeks after the Supreme Court held a hearing on constitutional issues surrounding the lethal injection method of execution for murder, the Justices are expected to be asked later Wednesday whether to keep intact an informal but functional bar to such executions until a ruling is issued in the test case.  Alabama legal sources said that attorneys for James Callahan, facing execution in that state at 6 p.m. Thursday, were preparing an application seeking to postpone the execution.  The Court has not permitted an execution to occur since shortly after it agreed to examine the lethal injection method in an order on Sept. 25.

Can doctors block all US lethal injections (and indirectly abolish the death penalty)?

This new editorial authored by three physicians in the New England Journal of Medicine suggests a (clever?) game-plan for doctors playing a role in abolishing the death penalty.  Here is the key passage of the editorial (with my emphasis):

We are concerned that, regardless of its decision in Baze v. Rees, the Court may include language in its opinion that will turn again to the medical profession to legitimize a form of lethal injection that, meeting an appropriate constitutional standard, will not be considered "cruel and unusual punishment."  On the surface, lethal injection is a deceptively simple procedure, but its practical application has been fraught with numerous technical difficulties.  Without the involvement of physicians and other medical professionals with special training in the use of anesthetic drugs and related agents, it is unlikely that lethal injection will ever meet a constitutional standard of decency. But do we as a society want the nation's physicians to do this?  We believe not.

Physicians and other health care providers should not be involved in capital punishment, even in an advisory capacity.  A profession dedicated to healing the sick has no place in the process of execution.  On January 7 in oral arguments in Baze v. Rees, the justices asked many important and thoughtful questions about a potential role for physicians and other health care professionals in executions.  In their fuller examination of Baze v. Rees, the justices should not presume that the medical profession will be available to assist in the taking of human lives.  We believe that, like the anesthesiologists in the Morales case, all responsible members of the medical profession, when asked to assist in a state-ordered execution, will remember the Hippocratic Oath and refuse to participate.  The future of capital punishment in the United States will be up to the justices, but the involvement of physicians in executions will be up to the medical profession.

Anyone who did okay on the LSAT should readily be able to see how the pieces of this argument add up: (1) it is "unlikely" lethal injection "will ever" be constitutional "without the involvement of physicians and other medical professionals with special training," and (2) "physicians and other health care providers should not be involved in capital punishment, even in an advisory capacity," so therefore (3) it is unlikely there will ever be a constitutional lethal injection.

Why do I have a feeling these doctors also would view firing squads and all other execution methods as involving a "deceptively simple procedure" that is really "fraught with numerous technical difficulties"?  Of course, I did not got to med school, so perhaps I can't really understand what this is all about.

Some related posts on doctors and executions:

• Should medical boards be able to bar doctor involvement in executions?
• Examining why states have not tried improving execution protocols
• Is it time to seriously consider alternatives to lethal injection?
• My debatable PENNumbra views on Baze
• Could states eager to execute quickly adopt a new execution method?
• Readings on lethal injection protocols and the role of doctors in executions
• The realities of a doctored execution
• A timely note about physician involvement in executions
• Are botched executions inevitable?

More evidence some are afraid to change lethal injection protocols

Thanks to this post at C&C, I see that The Tennessean has this notable article in which Governor Phil Bredesen's explains his resistance to changing the state's lethal injection protocol from the three-drug method to a one-drug method often touted by those objecting to the three-drug method.  Here are snippets from the piece:

Gov. Phil Bredesen said proposals to introduce a one-drug lethal injection method to navigate around the hazy legal future of Tennessee's three-drug procedure would delay rather than expedite executions. Bredesen told The Associated Press in a recent interview that he "would disagree violently" with those who argue that the state could immediately use a single heavy dose of barbiturates for executions. "Just remember that among the strongest proponents of the one-drug protocol are people who are adamantly opposed to the death penalty," said Bredesen, a Democrat who supports the death penalty and has signed the papers to execute three prisoners during his administration....

"The answer is obvious, that when you change protocols to something new you're going to have 10 years of litigation," the governor said. "We're not going to execute anybody for 10 years in this country while all this new uncharted territory of what a one-drug protocol is and what problems it may or may not have get adjudicated."...

While some Tennessee lawmakers and death penalty advocates were pushing for the state to go ahead with a one-drug protocol to continue with executions, most are waiting to see what the nation's high court will decide. "The practical and prudent approach is to wait for that decision," said state Sen. Doug Jackson, co-chairman of a legislative committee studying the state's death penalty. "Experts have testified that a single-drug protocol would be equally effective and at the same time would be less complicated and have a much lower potential of causing a horrific death," the Dickson Democrat said.

Some related posts:

• Tennessee state legislator calling for one-drug lethal injection protocol
• Examining why states have not tried improving execution protocols
• Is it time to seriously consider alternatives to lethal injection?
• My debatable PENNumbra views on Baze
• Could states eager to execute quickly adopt a new execution method?
• Strong Baze scholarly bloggy insights
• How could (and should) Congress clean up the lethal injection mess?
• Terrific Baze-ian analysis of lethal injection issues
• How Ohio executes
• Are botched executions inevitable?

Upcoming NYC conferences on lethal injection

Even though New York has not executed anyone in nearly 50 years (details here), and even though New York's modern death penalty statute was found constitutional nearly four years ago, New York City is the place to be if you want to learn all about the debates over lethal injection protocols in the next few months:

• Next week, as detailed here, Columbia Law School is having a half-day event, titled "The Supreme Court and the Legal, Medical, and Ethical Challenges to Execution by Lethal Injection."

• In early March, as detailed here, Fordham Law School is having a two-day event, titled simply "Lethal Injection."

I have the honor of participating in the Fordham event, where I likely will discuss some of the legal realist points I covered in this recent debate I had with Fordham Prof. Alison Nathan over the Baze case.

A bit of historical perspective on execution methods

Providing an interesting perspective on the Supreme Court's consideration of execution methods in Baze, Jonathan Turley today has this notable op-ed in USA Today.  Here is part of this piece that immediately caught my attention:

Pain has long been a surrogate issue for a deeper unease with death as a punishment.  At one time, pain was part of the purpose of the moral execution.  Early practitioners sought ever more gruesome and prolonged methods. Phalaris, the tyrant of Agrigentum (571 to 556 B.C.), used his infamous Brazen Bull, which was designed so that a man placed inside over a fire would roast while his moans were amplified through a series of tubes as soothing music for the tyrant.  The Romans punished parricide (murder of a parent) by putting the condemned into a sack with a dog, a rooster, a viper and an ape — then throwing the sack into the water.

In the USA, executions were recorded almost immediately upon the landing of Europeans. In 1608, George Kendall was executed in Virginia for plotting against the Crown.  By 1612, Virginia Gov. Sir Thomas Dale enacted the Divine, Moral and Martial Laws, which mandated the death penalty for virtually any conceivable crime, from trading with the Indians to killing chickens. Colonial executions included hanging, beheading, drowning, burning and breaking at the wheel (where a person was tied to a wagon wheel and his limbs were broken; then the shattered limbs wrapped around the wheel spokes).  With the age of enlightenment, the idea of executing someone in a way to heighten suffering came into disrepute as states sought uniform methods of capital punishment.

I spotlight this passage not only to provide historical perspective on the modern debate over lethal injection protocols, but also to raise issues concerning the relationship between theoretical justifications for the death penalty and execution methods.  It seems that the Romans and colonialists sensibly believed that, whether society's goal is to deter capital crimes or to achieve retributivist justice for, say, murder of a parent, an extreme execution method might better serve these goals than a painless one.