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October 31, 2007

Notable state litigation over lethal injection issues

As I noted in this prior post, the Baze case could halt executions for as long as a year if the Supreme Court doesn't issue a ruling until summer 2008, and states thereafter have to figure out exactly what the ruling means for their execution protocols.   Indeed, today brings news that two states with sizeable death rows may be still be facing lots of state litigation after Baze:

As I have suggested before, a state like Texas likely will find a way to get back to executions relatively quickly after a decision in Baze.  But, I would expect de facto moratoriums to persist in some other states for quite a long time.

October 31, 2007 at 01:53 PM | Permalink


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That AP story on Judge Burge is not entirely accurate. The case filed against him requested a writ of prohibition and was filed by the director of the Ohio Dept. of Rehabiliation & Corrections. There were a number of issues there -- standing & an adequate remedy at law -- to name two. The denial of that writ is not the equivalent of saying Burge is correct in proceeding -- they simply determined that a writ would not issue based on the allegations.

Posted by: JustClerk | Oct 31, 2007 2:12:38 PM

"Back to the drawing board" is a bit of an overstatement. The article quotes an admin. law prof. saying it would take six months to jump through the hoops. That's about when we expect Baze to come down anyway.

Posted by: Kent Scheidegger | Oct 31, 2007 5:59:07 PM


I think you vastly underestimate what has been happening in Texas since the execution of Michael Richard. Texas isn't quite as execution prone as it was a few years ago and PJ Keller of the Tex Crim App has made the death penalty a political hot potato following her closing of the courthouse doors at 5 for Mr Richard's lawyers. Alabama, which rumor has it set an execution date for early December today, seems the most likely to score an execution first following Baze.

Posted by: nony | Oct 31, 2007 6:30:13 PM

Well, though all of what's been said about Sharon Keller and the egregious Texas CCA is true, the real answer to when Texas' executions start up won't be decided by Texas' highest criminal court. Instead, one of two things will happen: 1) The Supremes will approve LI next year in its current form, in which case Texas will restart immediately, or 2) the Supremes will require changes to or abolition of LI, in which case the Texas Legislature must approve a new execution method in 2009.

If it's the latter, and that legislation passes with a 2/3 majority, the next Texecution conceivably could happen as early as April or May 2009. More likely, executions could resume September 1, 2009. Given the Texas political climate, such legislation's passage in some form would be inevitable. That's why IMO the most likely guess (should you decide to start a pool) as to the date of the next Texecution is September 1, 2009.

Also, nony's right: Watch the Sharon Keller fallout. What she did was WAY out of line, and it keeps snowballing.

Posted by: Gritsforbreakfast | Nov 1, 2007 11:52:28 AM

Sharon Keller preserved the integrity of the court. A court doesn't have to stay open for a convicted murderer (or a capital defense attorney filing a last-minute appeal that could have been filed much much earlier). Courts don't typically bend the rules for ordinary (and law-abiding) litigants--why should they for capital murderers.

People keep saying that what Keller did was so awful? Why? Please explain where capital murderers have the right to keep courts open?

And I am guessing that the victim's family doesn't think that what she did was WAY out of line.

Posted by: federalist | Nov 1, 2007 3:55:10 PM

"Preserved the integrity of the court"?!!! Really, federalist? By usurping the authority of the duty judge assigned to the case and making the decision on her own? By letting her colleagues who expected the appeal wait at the office until 7 p.m. without telling them what she'd done?! To you THAT'S "integrity," huh?

Hogwash - sometimes I wonder, federalist, if you would know integrity if it jumped out of the bushes and bit you.

Posted by: Gritsforbreakfast | Nov 3, 2007 9:49:43 AM

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