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December 16, 2007

Seeking capital punishment predictions for 2008

As I may document in future posts, 2007 was quite a year for the death penalty.  Notably, my prediction in early January that we would likely have less than 46 executions because of lethal injection litigation proved prophetic.  But I did not expect that the year would end with New Jersey becoming the first state to legislatively abolish the death penalty in four decades.  Building on these developments, this Reuters article tries to predict the capital future:

New Jersey's abolition vote this week highlights scrutiny of the death penalty in America, and analysts say it could be a small step in the direction of an eventual nationwide ban. But with capital punishment still on the books in 36 states, a conservative majority on the Supreme Court, and broad political support for putting the worst offenders to death, the road to abolition will be long.

"Ultimate abolition is indeed a long way off," said Stuart Banner, a professor at the UCLA School of Law and author of "The Death Penalty: An American History." "I'd be very surprised if the (Supreme) Court casts any doubt any time soon on the constitutionality of capital punishment in general."

New Jersey on Thursday became the first state legislature since the 1960s to abolish the death penalty. Coming on top of an unofficial moratorium on executions, some had questioned whether the move by New Jersey was a step toward national abolition. The unofficial moratorium has been in place since just after the Supreme Court said on September 25 that it would decide an appeal by two death row inmates from Kentucky arguing that the three-chemical cocktail used in lethal injections inflicted unnecessary pain and suffering. One convicted killer was executed in Texas hours later but none have been since then.

Though I am prepared to predict that the Baze litigation will ensure another year of relatively few executions, I am not sure what else we should expect in this arena in 2008.  I'd be grateful if informed (or even uninformed) readers might share their predictions.

December 16, 2007 at 01:11 PM | Permalink


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Maybe people will start listening to me and states will start using lethal doses of opiates/opioids (fentanyl will do the trick) for executions rather than the nutty, irrational, and likely torturous coctail of drugs they use now. Nobody can complain that an opiate/opioid overdose is painful, cruel or unusual. And if the government used, say, heroin (diacetylmorphine) to do the executions (remember, all lethal injections are overdoses of something) it would stigmatize the drug far more than any "just say no" propaganda ever could. Kids would not want to use the drug they use to execute people.

But, "one last high" is probably too "nice" and not vengeful enough for the average American family of a murder victim (with the christian crosses hanging off of their necks as they scream for painful retribution).

Opiate overdoses are the answer to the Baze question and would put an end to 8th Amendment challenges over the current 3 drug coctail. Quick and painless, and probably quite pleasant at first, until respiratory depression kicks in and the defendant falls asleep and dies painlessly. I once saw someone overdose on opiates back in college, and he looked quite at peace before the EMS guys saved him. No twitching or anything.

Posted by: bruce | Dec 16, 2007 1:21:24 PM

I am a federal public defender who specializes in postconviction death penalty cases. I have these predictions for 2008:

1) The Supreme Court will take certiorari on a case concerning the timeliness of lethal injection challenges in the next three or four months --- perhaps the Cooey case out of the Sixth Circuit.

2) The Supreme Court will rule in favor of the Petitioner in Baze, but the case will not resolve the lethal injection issue once and for all, rather it will just set the standards to be applied to the substance of lethal injection challenges in the lower courts.

3) The result of the first two predictions is that a patchwork moratorium will persist throughout 2008 in many states, but the nationwide de facto moratorium will end by mid summer.

4) Three or four volunteers will be executed notwithstanding the Baze moratorium.

5) The Supreme Court will take cert from the Louisiana child rape case and rule that the death penalty for child rape is constitutionally permissible.

6) Following in the wake of New Jersey, one other blue state will put in place a moratorium to study whether to keep the death penalty. No states will legislatively or judicially abolish in 2008.

7) The over/under on total executions is about 35 because, while the LI moratorium will remain in effect in many states, for those in which it doesn't, the "backlog" of prisoners who have finished their ordinary habeas challenges will result in a spike in executions in those states.

Posted by: Anonymouse | Dec 16, 2007 5:10:17 PM

My predictions for 2008 are:
1. that the trend toward LWOP in preference to the death penalty will continue to rise in respect of new prosecutions in all states.
2. that the Supreme Court will not wish to widen the scope of the death penalty and will rule against child rape inclusion.
3. that a few more people will be emboldened to come off the fence (Doug excluded) and join those who wish to see not only the death penalty to be abolished, but also the entire sentencing regime kicked back into a framework of reason and moderation.

Well, that is what I will be wishing when I pull on the turkey wishbone this year :-)

Posted by: peter | Dec 16, 2007 5:33:14 PM

I am a criminal defense attorney located in West Palm Beach, Florida. My prediction for the state of capital punishment in 2008 is limited solely to its use in Florida since this is where I practice law.

In July 2007, the Florida state legislature severely curtailed funding for indigent defense. As a result, numerous criminal defense lawyers who are qualified to handle capital cases at the trial level are no longer accepting court appointments in such cases. In Palm Beach County, where I reside, judges are not currently able to appoint attorneys qualified to handle the guilt phase of capital trials since the few lawyers who are qualified and who are still doing court-appointed work have more work than they can presently handle.

Last week, I was appointed to handle the sentencing phase in a capital case; however, my client currently has no one representing him for the guilt phase. Hopefully, a lawyer will become available next month.

If this sorry state of affairs continues for very long here in Florida, there will undoubtedly be numerous challenges to the imposition of the death penalty in those cases that are found to have been grossly underfunded.

Posted by: Ronald Chapman | Dec 16, 2007 8:36:58 PM

I'll bite, play conservative, and not overly tip my hand: one successful legislative repeal drive, one state scheme stricken, no new states join the executioner's team, several exonerations, several additional state statutory schemes in trouble, new death sentencing numberslevel off, SCOTUS action holds down new executions, and look for an interesting federal dp challenge. OH wait, that was 2007. I'll just double down and say it repeats in 2008

Note that until Baze & related LI developments are resolved any guess on # of new executions would be premature.

Finally, Anonymouse gives some great counsel, save for predictions of dp repeal efforts. Also, to again buck Anonymouse's predictions, the SCOTUS will not take up the child rape matter this term UNLESS Justice Kennedy wants them to. The Scalia/Roberts block can afford to wait until after the elections to see if they have a reliable 5th vote & the Stevens wing won't risk potentially have Coker overturned unless Kennedy is already on board. If cert is granted (and I am bucking CW and say it wont get cert) La (and Kent & crew on amici) will have to do a hell of a brief & oral arguments or they are odds on favorites to lose.

Posted by: nony | Dec 16, 2007 10:12:34 PM

Well, here is one prediction I can make with complete confidence. Nony's prediction that I will file an amicus in support of Louisiana in the child rape case will not come true.

Posted by: Kent Scheidegger | Dec 17, 2007 9:56:35 AM

Why, Kent?

Posted by: Anonymouse | Dec 17, 2007 10:25:15 AM

I believe that Kent has taken the position in the past that capital punishment should be reserved for crimes that result in death, so that someone who is committing a serious but non-fatal crime has an incentive to stop short of murder.

And if that is his position (and I don't mean to put words in his mouth if it's not) I think it's a well-reasoned one. I think imposing the death penalty for child rape would serve primarily to increase child murder.

Posted by: M. | Dec 17, 2007 11:03:41 AM

Louisiana's law is constitutional. It's just a bad one.

Posted by: federalist | Dec 17, 2007 11:34:19 AM

I agree with M. If you're going to be executed for raping a child, you may as well kill the child. That child crying on the stand makes for a very compelling witness. If you're going to get the same punishment whether you whack the witness or not, it becomes irrational NOT to whack the witness.

That's the very definition of a stupid law. This is also an example of a law that I believe to be constitutionally irrational. No legislature, federal or state, should be permitted to pass irrational laws. I don't only refer to a rational basis test for equal protetion cases. My position is that an irrational law violates the due process of society as a whole, and is not within any enumerated power of any legislature to pass. Sometimes "bad law" is not a matter of opinion.

Posted by: bruce | Dec 17, 2007 1:23:02 PM

Support for the death penalty will continue to gradually decline.

The death penalty will not be a major issue in the election (it appears unlikely that a death penalty opponent will get either of the major party nominations and in light of Tim Kaine's election as Virginia governor in 2005, I am not sure whether even having a candidate opposing the death penalty will matter since voters have more important concerns).

Posted by: Zack | Dec 17, 2007 3:33:51 PM

"Nobody can complain that an opiate/opioid overdose is painful, cruel or unusual."

As a doctor I can tell you this is demonstrably false. Overdose of opioid is associated with numerous outcomes that are potentially painful, including suffocating on your own vomit. The only guaranteed manner for a painless death is a bullet to the head (although I doubt the current cocktail causes pain with a typical "mega dose" of sodium thiopental at 5 grams (cf: surgical use is about 300 mgs.)

Posted by: Michelle | Dec 18, 2007 9:06:54 AM

GPS tracking systems are only a small part of what it takes to keep our children safe from sexual predators. First of all, legislators need to ensure that these sex offenders cannot reside anywhere near children. Police need to spend less time hiding with their radar guns to give speeding tickets and more time monitoring areas where sex offenders reside. GPS tracking bracelets are a must! The people monitoring GPS trackers most be competent and knowledgeable.

Posted by: jordan shoes 1 | Nov 29, 2010 3:06:02 AM

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