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October 21, 2007

Why exactly are some death penalty opponents resisting the moratorium label?

As detailed in this prior post, the opaque work of the Supreme Court in granting stays since its cert grant in Baze makes it hard to say with great certainty that there is a de facto moratorium on all lethal injection executions now in place.  Nevertheless, I find quite intriguing, as detailed in this post from Karl Keys and from comments here, that various persons who support an end to executions seem eager to avoid using the moratorium label to describe post-Baze developments.

Let's start with some basic facts.  Partially as a result of the Baze grant and post-Baze developments, there has not been an execution in the United States for nearly a month and more than a dozen scheduled executions in nearly 10 different states have been put on hold.  (A few of these stays pre-date the Baze grant, but the Baze grant essentially ensured the stays would not be undone.)   Perhaps most significantly, Texas, the state responsible for the majority of executions in 2007, has indicated that it won't even try to go forward with any executions until Baze is decided.

Of course, no formal moratorium has been declared (or really could be declared) by the Supreme Court.  Thus, nobody should believe there is a de jure moratorium that ensures no executions until an outcome in Baze.  But, in the wake of this past week's stays in Nevada and Virginia and Georgia, I have come comfortably to the conclusion that there is now a de facto moratorium on lethal injection executions.  And though it's possible that a state will at some point convince the Supreme Court to allow it to go forward with an execution while we await Baze, I still think the label "moratorium" is the most accurate way to describe the extant consequences of the Baze grant and post-Baze developments.

Intriguingly, it appears that death penalty supporter Kent Scheidegger has now begrudgingly accepted the de facto moratorium label.  Why exactly, then, are death penalty opponents eager to resist the moratorium label?

UPDATE: Karl Keys responds here by suggesting it "may be more helpful to ask why call it a moratorium" given that there are "six serious execution dates that have yet to be stayed just in the next 60 days, any one of whom may realistically lead to a fellow human being getting strapped downed to a gurney and poisoned to death."  My response is that I do not know what other word effectively describes the fact that more than a dozen serious execution dates have been stayed in the last four weeks since the Baze grant.

Karl goes on suggest that calling current events "a moratorium would be to denigrate [the] effort" of defense lawyers working to get stays in cases still with serious execution dates.  On this point, I look at the issue from the other end of the legal uncertainty: by denying the existence of a de facto moratorium, aren't death penalty opponents indirectly encouraging lower courts NOT to grant stays and encouraging prosecutors to keep pushing capital cases forward. 

In my view, If death penalty opponents were to vocally accept (and vigorously praise) the existence of a de facto moratorium on all lethal injection executions, it would make it a lot easier for defense lawyers to get stays in all still-pending capital cases.  Or, put differently, it seems that denying the existence of a moratorium serves to justify the efforts of those prosecutors and judges seeking to keep the machinery of death well oiled and fully functional despite Baze.

October 21, 2007 at 03:42 PM | Permalink


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» Doug Berman on the State of Lethal Injection from StandDown Texas Project
At his Sentencing Law and Policy blog, Doug has several recent posts on where we stand, including his latest, Why exactly are some death penalty opponents resisting the moratorium label? Here's the opening paragraph:As detailed in this prior post, the [Read More]

Tracked on Oct 22, 2007 11:23:41 AM


No idea, and not especially worried except in so far as it offers another distraction from the real debate.
So far as I am concerned, the Supreme Court review of the lethal injection protocol is in itself plainly merited and long overdue. Since the review inevitably involves a consideration of the concept of the death penalty as cruel and unusual punishment, if only as a test for the present protocol, it is to be hoped, if not expected, that the Justices will extend their thoughts to the justifications for its maintenance. It gives us all, intended or not, an opportunity to re-assess our personal appreciation of our motivations and beliefs in this regard. America has moved on. Can the Supreme Court continue to affirm a practice that can no longer be justified in terms of public safety? It is not enough to argue that some elements of justification remain (which I would dispute). If just ONE element no longer applies then the whole justification fails the test, since these same elements can be supported by alternative penalties. As the Catholic Church expresses it:
"We believe that in the conditions of contemporary American society, the legitimate purposes of punishment do not justify the imposition of the death penalty."
For those who are not aware of the thinking behind this statement, further details can be read at http://www.americancatholic.org/Newsletters/CU/ac0195.asp
The first value position is that:
"abolition sends a message that we can break the cycle of violence, that we need not take life for life, that we can envisage more humane and more hopeful and effective responses to the growth of violent crime."
If America is not ready for that in 2007/8, then we should all hang our heads in shame.
I asked the question a while back - who and where are the leaders for Justice in America today? This is a significant test of the Supreme Court to indicate at least that they are prepared to be a party to that group.
For those who fear the expansion of LWOP, tainted with its own excesses of inhumanity, the reality is that the fight has to begin, and has to be won, to first lower the threshold of ultimate punishment. A whole process of downward adjustment is required to restore sanity to the realm of criminal sentencing.

Posted by: peter | Oct 21, 2007 5:20:04 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 9:57:25 PM

I think the reason is that "moratorium" has taken on a political meaning: a step toward abolition. Further, as seen in Illinois Gov. Ryan's actions and the New Jersey state action, "moratorium" is also associated with the possibility of innocent people being executed. Prosecutors and DP supporters understandably do want want to use such a charged term, especially knowing that any statements they use containing "moratorium" will likely be used against them (perhaps out-of-context)in the future.

Posted by: Andrew | Oct 22, 2007 10:09:28 AM

Doug, perhaps it's because in states like TX, execution dates continue to be set? And if our Court of Criminal Appeals can find the smallest excuse to let one go forward, they will, see:


Posted by: Gritsforbreakfast | Oct 22, 2007 11:36:21 AM

I'm afraid the first commenter is expecting more from Baze than the Justices can, or will, deliver. The Justices have not been asked to hold the DP unconstitutional. They have been asked to rule on one particular protocol for carrying it out. All of the Court's current members have, at times, voted to uphold death sentences. Unless a whole bunch of them suddenly have the same end-of-life epiphany that Justice Blackmun did, the Court won't be banning capital punishment anytime soon.

Posted by: Marc Shepherd | Oct 22, 2007 12:40:47 PM

"....it seems that denying the existence of a moratorium serves to justify the efforts of those prosecutors and judges seeking to keep the machinery of death well oiled and fully functional despite Baze."

The fact that no executions are being carried out for a period of a few months has no bearing on what punishment to seek in a case now at the trial stage. Whatever issues exist regarding lethal injection will be resolved long before such a case reaches the point of setting a realistic execution date.

If the prosecutors believe that the circumstances of the crime and the defendant's criminal history warrant the death penalty, they should seek it regardless of Baze. If they do not, they should not seek it regardless of Baze.

People speak of the death penalty being arbitrary. Wouldn't it be exceedingly arbitrary to let killers who deserve the death penalty off with less merely because their cases happened to come up for trial during the Supreme Court's consideration of this case?

Posted by: Kent Scheidegger | Oct 22, 2007 12:48:10 PM

Might it not occur to the Court that the semantics in this case are such that that is exactly what they are being given an opportunity to pass judgment on? If the present protocol is unconstitutional because it cannot with certainty be conducted painlessly, especially when qualified medical personnel are not performing the task, then it is not much of a leap to infer that all forms of injection might suffer from the same objection. Short of demanding that medical staff perform the injections, that is indeed the case. There is evidence that the problem is not only the constituent ingredients, but the unprofessional manner of injecting the substances where they are supposed to be injected.
If you have ever had a blood test where the needle tore or penetrated through the vein (as I have) then you will know that the process should never be conducted without such professional touch or supervision. Given that the act of the Death Penalty offends the contemporary views of the medical profession (in so far as they refuse to be a party to it), and there are as many people in the country who would be satisfied with an alternative punishment as not (given that we take popular opinion into account), now would seem to be a highly advantageous time to make such judgment, so maintaining the Courts role in determining a major legislative policy.
If the Supreme Court duck out of the decision, effectively leaving it to the local politics of individual States (for there is no realistic possibility of the other federal Houses taking this issue on anytime soon), then their influence is truly diminished and given away needlessly.

Your phrase "deserves the death penalty" is one which offends me almost more than any other. Again, in this very complex issue, such judgment is so inevitably subjective that it beggars belief. The death penalty is certainly imposed in some States and in some jurisdictions within those States, but inconsistently, and at the influence of individual officials, and at the mercy of jury constituents. "to deserve" is an inappropriate term to use with such randomness.

Posted by: peter | Oct 22, 2007 2:58:58 PM

Peter, elected officials who are accountable to the people make that value judgment. That shouldn't be offensive.

Posted by: federalist | Oct 22, 2007 4:20:30 PM

Might it not occur to the Court that the semantics in this case are such that that is exactly what they are being given an opportunity to pass judgment on? If the present protocol is unconstitutional because it cannot with certainty be conducted painlessly, especially when qualified medical personnel are not performing the task, then it is not much of a leap to infer that all forms of injection might suffer from the same objection.

You're assuming that the Court will side with the prisoner in this case, which they very well may not. But in any event, the Court does not normally decide more than is necessary to address the question presented. And that question is about a particular protocol, not about other protocols that haven't been briefed.

Obviously, if the Court does rule for the prisoner in this case, we can assume that challenges to other protocols will follow. That always happens. But the Court will wait to decide each type of challenge until it is actually before them.

Posted by: Marc Shepherd | Oct 22, 2007 4:40:22 PM

Peter, the people who disagree with you about the death penalty are just as much entitled to our opinion as you are to yours. If the mere expression of that opinion offends you, perhaps you take offense too easily.

Posted by: Kent Scheidegger | Oct 22, 2007 6:59:10 PM

Kent, Federalist:
Death IS different. The death penalty survives because we allow ourselves to be de-sensitized to the process, and to the act, by disassociation. You may be comfortable with that, but that is why, over the course of history, the death penalty, where it still exists at all, has mostly retreated from public spectacle to very secluded environments. We accept death by proxy. Our hands are clean.

It is strange that death penalty supporters cannot see the perversity of seeking out those willing and capable of killing a human being to commit this act of proxy and at the same time expect that a message is somehow going out to similar others that killing is wrong.

It does of course expose the myth that the death penalty is anything other than a pure act of retribution. Hence your words "killers deserve the death penalty". The problem arises when you realise that, in all probability, you have killed, or have allowed to be killed in your name, an innocent man.

Federalists glib trust in a process of democracy is simply a cloak for this act of proxy. I might vote for this official because I like him more than the other guy. That doesn't mean that he will always make the correct judgments on my behalf. If he doesn't, I still may vote for him again because he is better than the other guy. But where is the morality in that? Where is the JUSTICE in that? I remain a killer by proxy.

I do not object to reading of or hearing your opinions. I do object to the use of loosely used language that condemns a man through an often flawed and arbitrary process. No, I do not think I am too easily offended.

Posted by: peter | Oct 23, 2007 4:14:27 AM

An arbitrary process? That's why abolitionists will never succeed. Rather than making a cohesive argument, you resort to claims that the process is arbitrary. Now, I don't claim that playing field is level, and I highly doubt that it ever will be -- resources will always be allocated to the prosecution first (goes back to that whole "tough on crime" thing people run an election on), but the process is anything from arbitrary.

Most places you're guaranteed two attorneys, one of whom must be certified to try a death eligible case. Then, there's review by your own state supreme court, post-conviction relief at the trial court level, state appellate court, and again to the state supreme court. Then add in habeas relief, including successive petitions if they are filed with the right federal judge -- then finally SCOTUS at the end of each of those trails.

Peter -- while you may be morally opposed to the DP, calling the process arbitrary only serves to undermine your own position.

Posted by: JustClerk | Oct 23, 2007 8:24:59 AM

JustClerk: Just to compare two cases at the end of the process (not to mention the vast majority of murderers punished with lesser sentences), in Texas recently after Baze, one offender was executed because the Presiding Judge at the Court of Criminal Appeals wouldn't allow the court clerk to stay open an extra 20 minutes for a last minute filing, pre-empting the decision of the "duty judge" who was assigned the case and awaiting the applicant's brief. A few hours later, State kills applicant. Two days later another defendant made identical claims on time and received a stay. He's still alive today.

The only differences I see between the two decisions are "arbitrary" - most importantly, a judge's decision to prioritize petty deadlines over a condemned man's last legal claims. (This case, incidentally, has caused dozens of lawyers to sign complaints against her with the Texas Commission on Judicial Conduct.) As long as the most prolific death penalty state has a high criminal court that so aggressively looks for loopholes to apply the death penalty, I think it's fair to call the outcomes at least "arbitrary." It's the Reverse Lottery Theory of criminal justice, see:)



Posted by: Gritsforbreakfast | Oct 23, 2007 9:51:54 AM

This all centers around the belief that the rules must be bent for those on death row and there is simply no law to support that. If anything, the fact that there is a "duty judge" to accept filings after hours shows that the process isn't arbitrary.

You can bet your house that if I went to file a med mal case on the last day before the SOL ran and showed up 20 minutes late, my filing wouldn't be accepted. The fact that there's even a process for filing motions after hours on the day of your execution (which is what, 10-15 years after your conviction) evidences that the system does everything it can to provide review.

And the fact that one judge disagrees with another over whether a stay is justified is an issue of discretion (and since these were 2 different cases, I seriously doubt they have identical fact patterns/timeliness issues).

As for whether this Texas trial court judge usurped the duty judge's authority, I question that system in the first place. Seems that such a procedure permits a bit of judge shopping. Don't like the judge your case has been assigned to, then wait until after hours and try another. (which by your anecdotal evidence would have benefited the defendant here)

Posted by: JustClerk | Oct 23, 2007 11:36:15 AM

JustClerk -- It's more complicated than that. Unlike your scenario, it was not the last day of the SOL. The SCT had just granted cert that day on the lethal injection issue. Given that there are duty judges around the clock in other non-death contexts to address emergencies, why should this judge close the office in the face of a reasonable before-closing request without asking the other judges who were expecting the late filing?


Posted by: SL | Oct 23, 2007 12:55:19 PM

That's the point again -- this defendant never attempted to timely raise this issue -- he waited for others and then sought to hook on to the bandwagon -- an untimely challenge doesn't magically become untimely because of a cert grant in another case.

Posted by: JustClerk | Oct 23, 2007 7:38:59 PM

Peter, you are wrong about proxy. I would have zero, and I mean zero, compunction about personally carrying out executions.

Grits, as for arbitrariness, we need to be careful about what we call arbitrary. I am happy to agree that when you look at the results of death cases that there is arbitrariness. But so what? Whenever you have a system of decentralized and diffuse decisionmaking, you will have arbitrariness in results. But no one ever said that capital defendants are constitutionally entitled to exact fairness when compared to other death-eligible murderers. What they are entitled to is a fair process, and when they get that, it is difficult to argue that the meting out of capital punishment is "arbitrary".

Posted by: federalist | Oct 23, 2007 11:16:02 PM

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