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October 19, 2007

NY Times coverage of moratorium head-scratching

In today's New York Times, Linda Greenhouse has this effective article entitled, "Trying to Decipher the State of the Death Penalty."  Here is how it starts:

Is there a death penalty moratorium now in place, and how would we know?

The Supreme Court has granted two stays of execution and refused to vacate a third in the three weeks since it agreed to hear a challenge to Kentucky's use of lethal injection. 

On Thursday, the Georgia Supreme Court became the latest state court to interpret the justices' actions as a signal to suspend at least some executions.  It granted a stay to Jack Alderman, who had been scheduled to die by lethal injection Friday night for murdering his wife 33 years ago.

The top criminal court in Texas, a state that accounts for 405 of the 1,099 executions carried out in this country since 1976, has indicated that it will permit no more executions until the Supreme Court rules, sometime next spring.  The Nevada Supreme Court this week postponed all executions in that state.  The governor of Alabama gave one inmate a 45-day reprieve.... This sequence of events has led some death penalty opponents and other analysts to declare that a de facto moratorium is in place.

Because the article thereafter kindly quotes my recent "moratorium mojo" post, it seems I am one of the "other analysts" declaring that we now have a de facto moratorium.  In fact, as some posts linked below explain, I think we may now be only a month into an execution hiatus that could last a year or even longer because of the likely pace of the Baze litigation and the uncertainty that may follow whatever nuanced ruling the Supreme Court delivers in Baze.

And yet, moratoriums (like sports momentum) can change very quickly.  So I think Karl Keys and others are wise to caution against too readily assuming that there will be no executions at all until Baze is decided.  That said, as detailed in this AP article, it seems all but certain that 2007 will end up having the fewest total executions in a decade and 2008 may end up having the fewest executions in a quarter century.

October 19, 2007 at 10:01 AM | Permalink


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The SCT's stay in Turner -- the first of the stays -- seems to have clearly signaled a moratorium (save, perhaps, in cases of volunteers) because the Texas Ct. (CCA) rejected Turner's application on procedural grounds (declined to authorize a successive petition). It's possible that the SCT thought that the procedural bar was inseparable from the federal merits, but it seems more likely that the SCT was determined to overlook state bars and to not permit the challenged practice to go forward while the SCT was reviewing it. This strikes me as a sensible decision in part because you don't want states rushing to complete executions prior to the decision and the compelling equities on the defendants' side -- a relatively short delay (in the scheme of capital defense litigation) vs. potentially cruel punishment.

Posted by: jordan | Oct 19, 2007 1:54:11 PM

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