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September 25, 2007

SCOTUS to review lethal injection protocols with Kentucky case

I spoke too soon when I said here that the ACCA cases were the only notable sentencing cases in the big group of SCOTUS cert grants today.  In addition, the Supreme Court has taken up Baze v. Rees, 07-5439, a case from Kentucky which, according to this SCOTUSblog post, will finally enable the Court to address on the merits "the constitutionality of execution by lethal drugs when the protocol poses a risk of pain and suffering."  (Thanks to commentors to my prior post spotlighting Baze.)

This is huge news which could (and probably should) lead to a de facto moratorium on all lethal injection executions nationwide until the Supreme Court issues a ruling (which might not come until June 2008).  I'll have a lot more to say about this very important cert grant in future posts, but for now here are some links a small sample of my copious coverage of all the lethal injection litigation that has been percolating around the country over the last two years:

UPDATE:  Thanks to SCOTUSblog, everyone can now check out the cert petition in Baze along with this supplemental filing.

September 25, 2007 at 11:10 AM | Permalink


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Why should it lead to a de facto moratorium on executions? First, different states have different protocols, and second, and more importantly, the granting of a stay is an equitable remedy, and most of these criminals haven't raised their lethal injection claims. That the Supreme Court has granted cert. doesn't mean that the Sec. 1983 limitations period hasn't run, and it doesn't mean that anyone who has delayed bringing his claim should be let off the hook for that delay.

Why is it that courts (and law professors) are often so solicitous of those who least deserve it, i.e., capital murderers.

Posted by: federalist | Sep 25, 2007 11:32:40 AM

Federalist, It would lead to a "de facto" moratorium because 1) courts would stay actions pending Supreme Court action (hey, the guy isn't going anywhere); and 2) the Supreme Court might sumarily G+V and delay R pending resolution of the a different state's killing-pracitce So, either way, states are going to have to wait a bit before doing some more killin'

If I were you, I would look on the bright side. This is an opportunity to, once and for all, approve of the correct method by which a state employee can kill a human.

And, since most people agree that death is an important life-event, it is no wonder that courts and law professors care.

Anyway, I look forward to your amicus brief.

Posted by: S.cotus | Sep 25, 2007 11:36:48 AM

I am not sure what federalists means by "deserve it."

If the "it" is cruel and unusual punishment then that argument has already been lost as the 8th amendnmnet clearly prohibits such things. I don't think this case is about banning the death penalty, but only about having executions performed humanly (if that is possible).

Posted by: Michael Hadley | Sep 25, 2007 11:41:09 AM

Why can't we just say "killing"?

Posted by: S.cotus | Sep 25, 2007 11:44:46 AM

Well, guys, as I said before, the stay is an equitable remedy, and not everyone is entitled to that equitable remedy. The law, as it currently stands, has restrictions on the stays, and I am not sure how a cert. grant would impact a killer who slept on his rights by not filing his lethal injection claims.

Posted by: federalist | Sep 25, 2007 11:48:32 AM

There's an execution scheduled in Texas tonite. We'll see what happens. The Supreme Court also denied cert. in two Texas death cases today. I don't know that anything can be gleaned from those cert. denials.

The "it" I was referring to is the courts bending over backwards to accommodate last-minute stay requests. Courts should strictly enforce any limitations on these guys' ability to get stays.

Posted by: federalist | Sep 25, 2007 12:11:55 PM

I am not sure that a stay is an equitable remedy, but instead it is the use of the court's equitable power to aid its jurisdiction.

Perhaps you can be specific as to which statute has been violated by the Supreme Court that it did not have the power to violate.

Posted by: S.cotus | Sep 25, 2007 12:16:48 PM

Abolishment of DP through 8th Ame. argument is a loser and everyone knows it. Politically, legally, historically... it's the same failure that has been writ large a thousand times. If DP opponents (for the most part) actually cared more about fairness and justice rather than feeling like superior human beings then they would focus on issues surrounding adequate trial defense where there is plenty of clear inequity and (unlike worn "cruel and unusual" arguments) a realistic chance of reform. The DP is not going away and if DP opponents are interested in progress over self-satisfied snobbery they'd stop acting like isolated academics and freaks and seek actual changes in the dollars made available and standards set for CP defense.

Posted by: dweedle | Sep 25, 2007 12:57:00 PM

Abolishment of DP through 8th Ame. argument is a loser and everyone knows it.

You are probably correct, but I wouldn't question someone's moral and legal right to take a stand on principle. Conservatives have been trying to get Roe v. Wade overturned for 35 years. If you believe something strongly enough, then there's more at stake than mere probability of success.

Posted by: Marc Shepherd | Sep 25, 2007 1:12:48 PM

Fair enough Marc, I appreciate religious and ethical belief against killin', but having worked in Harris County for eight years I find it annoying that the finite resources and time are consumed by arguments that will go nowhere when those same resources could be brought to bear to make changes to defeat individual death sentences in the trenches. The MILLIONS spent on such cases could be put to better use lobbying for trial reform, proper resources, and lawyer standards. But, once again, the Anti-DP Industry and scholars know better than a dumb 'ol trial lawyer. "Let them eat cake."

Posted by: dweedle | Sep 25, 2007 1:45:20 PM

Thank goodness! The whole lethal injection mess cries out for the Court to make it clear for once and for all how it is permissible to execute our murderers.

Posted by: William Jockusch | Sep 25, 2007 7:57:07 PM

But this grant of cert. should not delay a single execution. The killers who have exhausted their appeals shouldn't get stays by filing last-minute stay applications.

Posted by: federalist | Sep 25, 2007 8:06:27 PM

Federalist, why are you so gung-ho to see courts allow people to be executed in a manner that is banned on dogs? If the Supreme Court is going to decide whether it's cruel and unusual to execute people *in this fashion*, I can't imagine any equitable reason *not* to grant a stay. The state will get to execute the convicts either way; even the cert. petition suggests that all the state needs to do is remove one of the three drugs in the "cocktail" that doesn't do anything to speed death, but rather causes excruciating pain and is banned for purposes of animal euthanasia.

And, for the record, I support the death penalty 100% so long as there's adequate representation afforded. (I worked in the Indianapolis prosecutor's office for a short stretch, which requires capital defendants to get two lawyers with death-case experience, at state expense. Thus, I had zero problem working a case against a cop-killer, who was unfortunately allowed to plea to life w/o parole the morning his trial was to begin.)

Seriously, it's quite disturbing that you are effectively sanctioning potentially needless torture here, and to defend what interest? The state's desire to execute today instead of tomorrow? Give me a break.

Posted by: td | Sep 25, 2007 9:30:13 PM

td, give me a break. These killers have known of lethal injection issues for years. Years. Thus, they were obligated to raise their claims. They did not, and should pay the price just like any other litigant who sleeps on their rights. States have a valid interest in the orderly execution of their criminal judgments. That interest takes precedence over last minute claims of "it's gonna hurt". Sorry, killers, perhaps you shoulda thought of that before you killed someone.

The reason I am so "gung ho" about this is that I think that after all the appeals are done, as long as there are no innocence issues, it's time for justice to be carried out. No last minute claims (other than innocence). These last minute stays are an affront to our federal system and are completely irresponsible.

Posted by: federalist | Sep 25, 2007 10:12:08 PM

So, it's justice to torture people to death? This is frankly what you favor here. It would be better if you would just be honest.

Just be honest: you favor torturing people to death. For absolutely no reason. Given the issue up for review, it's not even an issue of delaying the penalty--it's excluding one unnecessary chemical from the injection cocktail. What's the harm there? Hell, it would even be cheaper to kill the guy with two chemicals rather than three. But hey, it would hurt less, and federalist wouldn't want that.

You know, there's a word for people who, all things being equal, prefer killing with more pain rather than less: sadist. Hiding behind "federalism" is frankly B.S.

What's your next issue? Lobbying to remove the wet sponge from the convict in the electric chair?

Posted by: td | Sep 25, 2007 10:43:53 PM

TD, I don't see how any of this is advocating torture. Everyone agrees that if the knockout drug is administered properly, there is no torture.

In any event, if it were simple to re-adjust protocols with no litigation risk, then fine. But it's not simple. Justice needs to be carried out. If people want to litigate this issue long before they get dates, more power to them. But that's not what's happening here.

Posted by: federalist | Sep 26, 2007 12:27:36 AM

Any of you actually practice "DP" law? I.e. Do any of you actually represent people on death row (filing amicus briefs don't count) or are any of you actually, currently prosecutors that are trying to (legally) kill someone on death row?

I am curious because there seems to be a lot of wanna-be prosecutors out there, and there also seems to be a disconnect between the actual lawyers that represent people at trial and "capital defenders" that don't.

Posted by: S.cotus | Sep 26, 2007 8:21:54 AM

Honestly, what difference does it make? Does anyone actually doubt that the conservative nutcases currently making up a majority of the court will say that you can't administer DP drugs if they cause the "murderer", as federalist says, pain? No way. It's rubber stamp time. Maybe 5-4 rubber stamp, but rubber stamp all the same.

Posted by: Anon | Sep 26, 2007 10:05:04 AM

Anon: My point exactly. It's a waste of time when those resources could be brought to bear to create fair trials and reasonable capital trial resources (like decently paid lawyers)... i.e. something that might make a difference instead of only making law prof.'s and other do-gooders feel superior.

Posted by: dweedle | Sep 26, 2007 11:52:29 AM

Dweedle - Hear hear.

Posted by: Anon | Sep 26, 2007 2:53:40 PM

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