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September 28, 2007

A Texas companion? A lengthy de facto moratorium? What the Baze f@%$, SCOTUS?

Along  with many others, I am trying to figure out just what to make of the Supreme Court's decision to block Texas's effort to go forward with a lethal injection execution last night (details here).  The decision suggests (but hardly ensures) the Justices will decided to block all lethal injection executions while the Baze case is pending.

As I think this through, this one not-quite-random thought came to mind: perhaps the Justices are now thinking about taking a Texas lethal injection case to hear and adjudicate along with Baze?  After all, as these DPIC stats highlight, Texas is the only state still regularly using the death penalty and nearly 70% of all lethal injections in 2007 have taken place in Texas.  If any particular state's execution protocol is to be rigorously examined by the Supreme Court, it really ought to be the protocol being used in Texas.

Even though it likely would be a good idea for SCOTUS to take a Texas companion case, a clear and cogent opinion in just the Kentucky case ought to provide sufficient guidance for Texas and other states eager to continue lethal injection execution.  However, I am not that all confident that we will get a clear and cogent opinion in Baze (since we didn't in the Hill precursor case).  Moreover, it seems all but certain that there will be (chaotic?) lower court litigation after Baze no matter what the Justices decide. 

Looking at the calender, then, I think there is now a real possibility of very few (if any) executions in the United States for the next 9 to 18 months.  With or without a companion case, the Justices seem unlikely to resolve Baze until at least March or April.  And, if there is strong division within the Court, the Baze opinion might not come until late June.  And, with a divided opinion, lower court litigation over Baze's impact might take at least another few months even in states like Texas eager to get back to their capital business.

What a mess.  Nearly 18 months ago in this post, I described all the lethal injection litigation "a national disgrace" undermining the interests of federalism and sentencing consistency and orderly government.  Then (and in this subsequent article), I urged Congress to step in because it seems that the Court is poorly positioned to handle these issues effectively and efficiently.  (Of course, I have little confidence Congress would handle this issue well, but at least it should try since its approval rating cannot get much lower.)

UPDATE:  This new AP piece includes this assessment from an informed observer:

"I think we're headed toward a moratorium, at least until the Supreme Court resolves the Kentucky case," University of Texas law professor Jordan Steiker said Friday. "I think now the course seems relatively clear that we are likely to have moratorium on executions for at least nine months, probably a year, until the court issues an opinion and provides definitive guidance."

September 28, 2007 at 04:06 PM | Permalink


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I'm quite disappointed that the docket experts at SCOTUSblog have not given us a hint as to what might be going on.

Posted by: anonymouse | Sep 28, 2007 6:21:02 PM

And there we have it, laid bare, the anti-death penalty lobby cannot win in the court of public opinion and therefore endeavor to tie up capital punishment in litigation. Federal courts will tolerate this state of affairs at a cost to their legitimacy, which means, ultimately, they will back off.

Maybe someone can ask Justice Breyer if there's a tolling of his "you gotta execute me within X years or you can never do it" deadline during this possible moratorium. What childish silliness.

And what of the victims' families, who now, even if they don't support capital punishment, have to endure more delays.

Hopefully, the Gang of Four members who criticized the Florida Legislature for not keeping up with the Lancet Study have boned up a bit on the science. That line of questioning was a disgrace, showing spectacular ignorance and the arrogance only a federal judge could have.

Posted by: federalist | Sep 28, 2007 6:36:07 PM

What a surprise. federalist is mad because the state's not killing people fast enough for his tastes.

Posted by: td | Sep 28, 2007 7:03:39 PM

You inadvertently posit an interesting question or two, federalist.

Is the delay the families have to endure worth the price? Put differently, is the closure greater and the emotional cost-benefit analysis clearly in favor of the death penalty? Or would closure be nearly equal after a LWOP sentence, which would avoid delays the family has to endure?

I'm not sure how a survey could be designed to answer these questions but the results would be interesting.

Posted by: George | Sep 28, 2007 8:33:16 PM

As a matter of common sense, legally speaking, all LI executions should be stayed, as was Baze's. We're talking about ability of the government to kill a citizen using a process that might be painful.

Balance that.

Posted by: Matthew Byrne | Sep 29, 2007 5:52:58 PM

Lethalinjection.org has all the pleadings in this case from the trial court filings thru cert. Those interested might do well to visit there.

Posted by: karl | Sep 29, 2007 8:51:50 PM


consider this:

Here are some quotes from a unanimous Supreme Court decision:

1. "Both the states and the victims of crime have an important interest in the timely enforcement of a sentence."

2. " . . . a stay of execution is an equitably remedy. It is not available as a matter of right, and equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts."

3. "A court considering a stay must also apply a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time to allow consideration of the merits without requiring entry of a stay."

4. "The federal courts can and should protect States from dilatory or speculative suits . . . ."

I'd hardly say that stays should be granted as a matter of course . . . .

Posted by: | Oct 1, 2007 8:05:09 PM

Anonymous, those statements were made before the cert grant in Baze. The calculus has changed since the grant increased the likelihood of success for the movant/petitioner. Also, splits among and within the lower courts on the issue became more pronounced after Hill, which is a reason to be prudent and avoid even the appearance of arbitrariness. The dissent in Little out of the 6th Cir. provides a good example.

The Supreme Court just stayed Berry's execution in MS (a month after your reply). In the same case, the 5th Cir. had earlier refused to entertain the merits on timeliness ground, relying on its cases which the Supreme Court itself had cited in Hill. Apparently the landscape has shifted and Hill is no longer the final word.

Defense attorney here.

Posted by: Matthew Byrne | Oct 31, 2007 8:28:21 AM

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