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October 20, 2007

More on what a de facto execution moratorium might entail

This new AP article explores whether the emerging de facto execution moratorium could mean even bigger things for death penalty policy and politics.  Here is how the piece starts:

Stop executions for a while and perhaps they can be stopped forever.  That calculation has been part of the strategy of capital punishment opponents for decades.  The Supreme Court-inspired slowdown in executions offers the first nationwide opportunity in 20-plus years to test whether the absence of regularly scheduled executions will lead some states to abandon the death penalty and change public attitudes about capital punishment.

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The AP article you contributed to on the front page of Yahoo was excellent. Keep up your tireless work to fix our criminal justice system.

Law Student

Posted by: Anonymous | Oct 21, 2007 2:35:12 AM

Doug, in 1997 I was at Central Prison in Raleigh waiting for the state to execute one of my clients and I was passing time talking to the local Associated Press correspondent. He told me that he would probably soon stop covering executions because they were getting no longer newsworthy. I think of that comment often. Bruce

Posted by: bruce cunningham | Oct 21, 2007 8:43:54 AM


Like the law student, I very much appreciate the incredible service you provide with your excellent blog. Nonetheless, I vehemently disagree with your characterization that what currently exists is a de facto moratorium on the death penalty. Let me echo Professor Elizabeth Semel's point in Linda Greenhouse's October 19 New York Times article that "it would be inaccurate and very presumptuous to call this a moratorium." The October 20 AP article by Mike Sherman that you posted today also makes the point that if we look back, a halt in executions did not abolish the death penalty. This point is critical to take home.

I think it's important to cease conflating arguments against the current use of lethal injection with arguments against the death penalty itself. While it's simpler to put the two arguments together -- and even contend further that it's a calculated effort of anti-death penalty advocates -- the combined effect distorts the complexity and historical purpose of the recent litigation over legal injection. Baze v. Rees is not a legal sound bite; rather, it is the result of years of legal advocacy focused on preventing the unconstitutional application of lethal injection, not the death penalty itself. To contend otherwise diminishes the entire point of this litigation.

Again, Doug, thanks for all of your efforts as well as the opportunity for us to post our strongly conflicting views.

Debby Denno, Professor, Fordham Law School

Posted by: Deborah W. Denno | Oct 21, 2007 8:54:29 AM


Though you know I respect all the work you and others have done in this area tremendously, I dispute that this work does not grow out of an abolitionist movement to eliminate the death penalty altogether.

The pain and suffering experienced by the (many more) prisoners subject to supermax imprisonment is documented by much sounder science and impacts (many more) prisoners who have committed less awful crimes than those subject to execution. And yet there has been no systematic litigation campaign to end the risk of unecessary pain and suffering in the supermax context.

With all due respect, I think it is impossible to understand the attack on lethal injection protocols separately from a general attack on the death penalty.

Posted by: Doug B. | Oct 21, 2007 11:54:21 AM


Again, many thanks for your comments. But, if anyone were to look back on the modern start of questions about both electrocution and lethal injection, say beginning in the 1990, they would find a strong degree of resistance among abolitionists, including death penalty attorneys. Why? Because then as now, abolitionists firmly believed that attempts to make execution methods more humane would simply make them easier to apply in executions. And there is support for that perspective.

Electrocution challenges have existed for more than a century; lethal injection challenges started thirty years ago. Yes, these challenges have helped expose the frailties of the death penalty but they have not been effective vehicles for eliminating it.

In sum, there has been and continues to remain a strong degree of ambivalence by abolitists toward these execution method challenges as well as a strong degree of support among pro-death penalty advocates for having more humane executions. As I argued and documented in my 2002 Ohio State Law Journal article, the issue has always been a paradox, drawing supporters and deflectors on both sides. Indeed, Jay Chapman, M.D., the creator of lethal injection was and continues to remain an avid death penalty proponent and it was the pro death penalty movement in Oklahoma and Texas that propelled the use of lethal injection (as well as electrocution). Chapman himself has recently recommended ways to make lethal injection more humane in an effort to perpetuate the death penalty, not to eliminate it.

A focus on the problems of supermax prisons is of course also a good thing but as the Supreme Court has always said, "death is different." We are supposed to have more stringent standards safeguarding death row inmates. In addition, I don't see this as being a competition or debate between who we are going to defend more (death row inmates vs. super max inmates), but rather doing what is right under the Eighth Amendment for those unfairly affected by our criminal justice system.

Thanks again Doug as always for providing this forum for debate.

Debby Denno

Posted by: Deborah W. Denno | Oct 21, 2007 12:38:47 PM

Doug and Debby, as fans of both your scholarship, I think I speak for a lot of people when I say, please continue this debate!

Posted by: anonymouse | Oct 21, 2007 1:04:01 PM

My own two cents: Whatever the source of the scholarship, the source of the LITIGATION has nothing to do with exposing the flaws of, or shoring up, the system as a whole. Rather, it is the result of individual lawyers scrambling to stop execution dates for individual clients. Regardless of lethal injection litigation's effect on the death penalty debate as a whole, whether it helps abolitionists or retentionists, death penalty lawyers have an obligation to use lethal injection litigation in an individual case to stop an execution date if they can.

Posted by: anonymouse | Oct 21, 2007 1:08:49 PM

I find it telling that AP cited no "abolitionist" for the position of what abolitionists hope for. Ron Tabak, the only person other than you cited in the article, spoke on the ABA's efforts to mend, not end, the death penalty. There are many more Americans who want to see changes to fix the death penalty & an actual moratorium (70%+ of Americans) than to end the death penalty.

Indeed, some (indeed maybe many) friends in the abolitionist movement I know are worried that Baze may harm the abolitionist cause in the long run. The Baze litigation may reinforce the deluded belief by some (those who may be otherwise inclined to join the efforts to repeal the death penalty in retentionist jurisdictions) that litigation will abolish the death penalty.

Finally, the "m" word. Baze, to echo Profesor Denno is about the constitutionality of a specific method of execution, other methods are still available to kill. At any moment a legislature is free to bring back hanging to kill inmates by. Let me reiterate the words of Professors Denno & Semel, "it would be inaccurate and very presumptuous to call this a moratorium." I am aware of six serious execution dates that have yet to be stayed just in the next 60 days, any one of whom may realistically be executed.

Posted by: karl | Oct 21, 2007 1:14:03 PM

Interesting Post. After reading it, I thought you might be interested in some of our findings. Americans have long favored capital punishment, although the margin has declined in recent years. Half of Americans say the death penalty is not imposed enough, but most also believe that at least one innocent person has been sentenced to death in the past five years. Feel free to check out our crime facts at http://www.publicagenda.org/issues/factfiles.cfm?issue_type=crime, or contact me with any questions.

Posted by: William Hallowell | Oct 21, 2007 10:00:33 PM

Following up on my last post,the sentence stating the 70%+ number is slightly misleading as I altered it right before posting without rereading it. The number who actually support a national moratorium on executions is 58%, lower than that who support changes to the current practice of the death penalty. My apologies for any confusion.

Posted by: anon | Oct 21, 2007 10:09:22 PM

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