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November 1, 2007

Wondering once more about the broader impact of a de facto execution moratorium

A few weeks ago I pondered here whether and how a de facto moratorium on executions would impact capital indictments and death sentences.  But that was when the very existence of a moratorium was still subject to robust debate.  Now, as this new USA Today article spotlights, after this week's stay of a Mississippi execution, everyone recognizes the de facto reality of a de facto moratorium:

The Supreme Court's orders in recent death penalty cases have been brief, cryptic and even contradictory.  But after Tuesday night's action stopping a Mississippi prisoner's execution, their consequences seem clear.

Imposition of the death penalty is unlikely to resume until next year, after the justices hear the Kentucky case of Baze v. Rees and rule on the constitutionality of the lethal injections. Most of the 38 states that permit capital punishment use that method.

"The court is sending signals that make it extraordinarily unlikely that there will be any executions before Baze comes out," said Deborah Denno, a law professor at Fordham University in New York. "I think this is unprecedented," added Denno, an expert on lethal-injection issues, referring to the court's decision to review a method of execution for the first time in more than a century and the far-reaching consequences of its orders prior to hearing the case. "It sure looks like that until they decide this issue, they don't want to see any more executions," Georgetown University criminal law professor Randy Barnett said.

So now I wonder again how this moratorium reality is going to impact other aspects of the modern administration of the death penalty.  The USA Today article notes that in "Oklahoma Attorney General Drew Edmonson on Oct. 3 asked state judges not to schedule any executions until the high court rules."  I suspect some other states will take the same approach.  But, the de facto moratorium would be really consequential if state prosecutors and/or judges become less eager to move forward with capital cases.

I am also now wondering about system-wide impacts as well as case-specific ones.  Will the momentum to eliminate the death penalty in a state like New Jersey speed up, or perhaps slow down, in light of the Baze moratorium?  Will some states, as I have wondered recently, start looking at other possible execution methods?  Might Congress, as I urged long ago, finally appreciate that this is an issue of national significance calling for the attention of the nation's legislature?

November 1, 2007 at 09:56 AM | Permalink


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