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October 27, 2007

Mississippi moratorium test case now primed for SCOTUS

Late yesterday a Fifth Circuit panel, in this relatively detailed opinion, denied a stay to a Mississippi death row inmate scheduled to be executed by lethal injection on Tuesday.  (The Fifth Circuit's work has me thinking of a variation on a famous movie sequence.  In response to the stay request, the Fifth Circuit panel said: "Baze? ... We ain't got no Baze... We don't need no stink'n Baze stays.")

As spotlighted in posts from SCOTUSblog and Crime & Consequences, this case is now primed for the Supreme Court to clarify whether Baze calls for a complete moratorium on all executions during its pendency, or whether defendants who did not raise these issues before Baze can still be executed while the Justices take their time to decide on the constitutionality of lethal injections.  Kent provides this fitting account of where matters stand and what followers must hope for:

This case should require the Supreme Court to tell us if there is a nationwide moratorium or not.... Memo to SCOTUS: whatever you do, please give us a reasoned explanation this time.

Some recent related posts:

October 27, 2007 at 08:14 AM | Permalink


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I am not sure if the opinion was subsequently corrected, however, there appeared to be an unusually large number of typos in the opinion, esp. the constant reference of the "Fifth Circuit" as the "fifth circuit." Lower cases might be fine if you are blogging but not in a formal opinion, IMO. The typos give the appearance, at least in my mind, that was a hastily put out opinion, and, again, at least in my mind, the language of the opinion seemed to almost dare the Supreme Court to get out of the way and let executions resume.

This is the Fifth Circuit of old, pre-Penry II, pre-Brewer, pre-Abdul-Kabir, that we all grew to love and/or hate.

Posted by: anon | Oct 27, 2007 10:46:48 AM

The fifth circuit seems to have gotten it right here.

The victims' families deserve some explanation of why the Supreme Court is doing what it is doing. It has acted in a completely irresponsible manner to date on this issue.

Posted by: federalist | Oct 27, 2007 11:12:27 AM

Maybe the Justices got round to actually reading what the rest of the civilized world has been up to and achieved in the past 25 years or so? Well, we can hope:)
eg Canada

extract from:
Over the period 1975/76 - 1998/99, there were 4,131 releases of murder offenders on day and full parole. Of these:
* 2,666 were day parole releases.
* 1,465 were full parole releases.
Over the past 24 years:
* 4 (0.2%) of the 2,666 day parole releases of murderers were subsequently re-incarcerated for a repeat homicide offence.
* 9 (0.6%) of the 1,465 releases of murder offenders on full parole were subsequently re-incarcerated for a repeat homicide offence.

From the Canadian website on parole of murderers:
extract from:
Parole is not automatically granted when inmates become eligible.
Because an offender is eligible for parole does not mean that it will be granted. In fact, NPB denies full parole to approximately six out of ten offenders at their first parole review date.
The law gives NPB absolute discretion in decisions to grant or deny parole. In arriving at a decision, Board members consider the risk that the offender may present to society if released and determine if, and to what extent, that risk can be managed in the community. The protection of society is the overriding consideration in any release decision.

Posted by: peter | Oct 27, 2007 11:47:12 AM

I love how people dress up their silly arguments with terms like "civilized" etc. It smacks of the elite (and effete) set sipping their lattes and sneering at the great unwashed.

Here are some of the flaws with your argument, Peter.

1) What other crimes were committed by these 4, 131 releasees? You don't say, but it seems almost certain that these guys probably committed a lot of other crimes besides murder.

2) What about the crimes that we don't know about? Not every murderer is caught.

3) No one asked the 13 dead if they wished to be sacrificed for the "achievement" you mention.

4) No one asked whether the ability to get parole causes more murders, as murderers have less to lose from their crime.

5) I wonder how the families of the more than 4,131 dead feel about these killers getting to walk the streets.

Civilized indeed. I am sure that when the 13 were being killed, sacrificed to the altar of the sensibilties of effete latte-sippers, they died with a smile on their face, knowing that they died for a higher cause.

Posted by: federalist | Oct 27, 2007 12:38:44 PM

I'm sorry, I made a mistake. The 13 I mention probably was more, as people can and do commit multiple murders.

Posted by: federalist | Oct 27, 2007 12:50:33 PM

"...there appeared to be an unusually large number of typos in the opinion..."

Let he who has never typoed throw the first stoan.

Posted by: Kent Scheidegger | Oct 27, 2007 1:17:14 PM


Until you advocate for the measures necessary to prevent murders from occurring in the first place (e.g., wealth and income distributive measures), your defense of the "sacrificed" is empty, to say the very least. You are clearly content to allow people to be murdered, so please do not pretend to sympathize with them or be offended by the people who murder them.

Posted by: DK | Oct 27, 2007 1:18:38 PM

Your response was anticipated. You propose flaws in the evidence with a closed mind, assuming you know the answers, and assuming that other countries would knowingly endanger their populations beyond the lowest possible risk? There is probably greater risk of a well supervised, released person - who has been assessed on a rigorous program of parole worthiness, based on evidence accumulated over at least 25 years of incarceration - of falling under a truck. We are not talking of everyone passing the test for parole. Confirmed or suspected multiple murders would clearly be unlikely ever to be released, amongst others similarly. Your whole argument is based on fear, yet most of us get on with our lives quite aware of the personal risks we face every day without cringing at every doorway. The climate of paranoia you like to promote is harming American society in ways that you will come to regret for perhaps generations to come.

Posted by: peter | Oct 27, 2007 1:43:30 PM

DK, ideas of wealth equality, and the force required to implement them, have wreaked havoc beyond imagination. So no, I won't be advocating for them.

And Peter, I was talking about multiple murders after incarceration, not before.

By the way, any idea how many other crimes were committed by your group of 4,131 parolees?

And as for cringing in my doorway, I don't. My views are not born out of fear, but a different emotion, outrage.

Posted by: federalist | Oct 27, 2007 1:55:50 PM

Oh, and Peter, you assume that you're average murderer here is the same as in Canada. Not likely.

Posted by: federalist | Oct 27, 2007 1:57:54 PM

A part (representative) answer to your specific question is easily obtained:
Between April 1, 1994 and March 31, 2002, 1,376 offenders with Life Minimum sentences had 1,487 full parole supervision periods. As of March 31, 2002, 1,079 (73%) of these supervision periods were still active. The outcome of the remaining cases was as follows:

142 (9%) offenders with life minimum sentences died between April 1/94 and March 31/02.

159 (11%) full parole supervision periods were revoked for a breach of conditions.

65 (4%) were revoked for a non-violent offence.

42 (3%) were revoked as a result of violent offence.

The data isn't hidden.

Your last comment sounds suspiciously racial in context. Now that's a surprise.

Posted by: peter | Oct 27, 2007 2:25:29 PM

federalist, why do you hate America?

"159 (11%) full parole supervision periods were revoked for a breach of conditions."

The other day there was the story of man violated in California for possession of a Bic lighter.

That's brutal and it contributes to the "brutalization effect."

Posted by: George | Oct 27, 2007 2:33:16 PM

Oh, there we go with the racism charges . . . . how revealing . . . .

Posted by: federalist | Oct 27, 2007 3:36:34 PM

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