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December 21, 2007

Terrific Baze-ian analysis of lethal injection issues

Writing in the National Law Journal, Marcia Coyle has this very strong piece entitled "Supreme Court Asked to Set a Standard for Lethal Injection."  The piece provides an extremely effective review of the issues and arguments facing the Justices as they consider the Baze lethal injection case (which will be argued January 7).  Here are some excerpts:

[T]he justices are being asked to give judges a standard for evaluating challenges to lethal injection protocols under the Eighth Amendment. The need for one standard is obvious from the flow of litigation throughout the country that followed the high court's 2004 and 2006 rulings in Nelson v. Campbell and Hill v. McDonough, respectively.

Lower courts have used a variety of standards — "substantial risk of wanton and unnecessary pain," "wanton infliction of pain," "significant and unnecessary risk" of inflicting severe pain" — to decide whether the challenged protocols are "cruel and unusual." Not surprisingly, then, the results in this crucial matter of death procedures have been inconsistent and frustrating to judges, death row litigators and the state defendants....

The lethal injection case, say many scholars, presents difficult questions for the justices for a number of reasons: There is very little method-of-execution case law for them to examine, standards that do exist are vague and the issue involves not just law but medical expertise. There have been essentially three separate lines of analysis under the Eighth Amendment, they say. There is the principle in Gregg and earlier cases that asks whether the punishment inflicts unnecessary and wanton pain. Second, there is the more modern formulation of "evolving standards of decency." And finally, there is the "deliberate indifference" analysis applied only in cases challenging conditions of confinement....

But whatever the justices decide, lethal injection challenges are unlikely to end, said Berkeley's [Elisabeth] Semel. "It all depends on how big a window the Court leaves open."

December 21, 2007 at 09:35 AM | Permalink


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Via Doug Berman bin ich auf einen sehr interessanten Artikel im National Law Journal gestoßen, welcher Baze et al. vs. Rees und die Hintergründe beleuchtet. Bereits am Anfang fallen die ernüchternden Worte:It (der Supreme Court, J.) is not be... [Read More]

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Trop v. Dulles (1958) is "more modern" than Gregg v. Georgia (1976)? That is not self-evident.

Ms. Semel is correct that "it all depends on how big a window the Court leaves open." Let's hope that the Court shuts the window and gives clear guidance as to what is and is not allowed.

Posted by: Kent Scheidegger | Dec 21, 2007 12:16:43 PM

I am a capital habeas litigator with non-Bazean lethal injection litigation pending in a southern state that shall remain nameless:

Doug, I always appreciate your coverage, usually love your analysis, and read your blog every day. But your comment to Marcia Coyle that invalidating lethal injection as currently practiced could risk "bringing the system down all together" was uninformed.

There is no contention anywhere - not even among the most ardent abolitionists - that a single-drug barbiturate lethal injection protocol would cause sufficient pain to implicate the 8th Amendment. Nor is there any colorable objection that a single-drug protocol would be impractical. Vets use it to put down animals. Oregon has used it for years in physician assisted suicide. And, as the legislator from Tennessee has recently written, the states could adopt a single-drug protocol right now and fire back up their execution chambers immediately. Under what possible scenario, then, could a victory for Baze "bring[] the system down"? The only thing that has stopped lethal injections thus far is the states' intransigence in adhering to their outmoded protocols in the face of obviously superior alternatives.

I understand that you have a need to be "neutral" in the capital punishment debate. It's fine to present the state as acting in good faith. But, as the go-to sentencing guy for the press, I think you have a responsibility to the public to be "neutral," if you're going to be, in an accurate fashion.

I think it would be fine for you to say, for example, "There is a genuine feeling among state officials that the allegations of botched executions have been overblown, that the present protocols usually offer a more peaceful death than people dying of natural causes get, and that convicted aggravated murderers do not merit any further solicitude." But what you did say just flies in the face of the facts.

Posted by: Anonymouse | Dec 21, 2007 10:39:02 PM

I neglected to disclose: I am a capital habeas litigator working ON THE SIDE OF THE INMATES, though I'm sure those who read the whole post deduced that.

Posted by: Anonymouse | Dec 21, 2007 10:40:53 PM

Anonymouse, I understand your concerns, but here's my "real politik" perspective. If the defense side simply wanted a move to a better 1-drug protocol, why haven't we seen a lot of defense offers to "settle" these cases with both sides agreeing to a 1-drug protocol. Significantly, much prison litigation got resolved through consent degrees with prison officials agreeing to the defenses' proposed prison improvements (e.g., no triple bunking, better medical care, etc.). If all that was sought was a better procedure, I think the defense could/should propose such a procedure and agree to drop/waive all execution protocol claims.

Even though there is distinct LI litigation afoot in nearly every capital jurisdiction, to my knowledge not a single defense team has offered to drop/waive all 8th A challenges if the state were to adopt a particular protocol. Not only is this fact a telling indication of the broader goals of this litigation, but it also necessarily makes state suspect about the motives of those challenging existing protocols.

Of course, I understand defense lawyers have an obligation to litigate in the best interests of their clients. But, realistically, the best interest of all non-volunteer death row defendants IS bringing down the system, not merely making the system more effective.

Posted by: Doug B. | Dec 22, 2007 9:28:27 AM

Doug, thanks for your response. I think you are wrongly equating a few months' delay with "bringing the system down." There is zero chance that LI litigation could lead to a "Furman moment." While capital defense lawyers might WANT to bring the system down, none in her right mind thinks that lethal injection litigation is the way to do it---for precisely the reasons stated in my first post. At most, lethal injection suits get, in addition to a more humane procedure, some additional months of life for the clients while the litigation works its way through the courts. And, again, this delay in the execution of sentences only happens because of the states' utterly short-sighted stubbornness.

As for your settlement issue, that offer is essentially on the table because a one-drug barbiturate protocol has been the remedy explicitly requested in many LI cases. That's all the plaintiffs are seeking. No bargaining would be necessary because any LI challenge after a state adopted the single-shot barbiturate protocol would be frivolous. Indeed, I wouldn't dare claim that a barbiturate protocol is unduly painful---for fear of being Rule 11'ed, not to mention losing all credibility.

Here, as in many circumstances, the state actors defending the death penalty are their own worst enemies. If they would just give death row inmates what the incremental procedural changes they have asked for, they could kill twice as many. I can't tell you how screwed many of my clients would be if the states' attorneys took any approach besides deny, deny, deny, deny.

Posted by: Anonymouse | Dec 22, 2007 12:08:00 PM

Anonymouse is 100% correct.

Doug wrote: "Of course, I understand defense lawyers have an obligation to litigate in the best interests of their clients. But, realistically, the best interest of all non-volunteer death row defendants IS bringing down the system, not merely making the system more effective."

The end of lethal injection litigation is not to make the system more effective. It is to make it less cruel. It protects the person's right to be free from a completely unnecessary risk of extreme torture inflicted by state actors. That is not an insubstantial interest. It's considered enough of an interest for animals that veterinarians and even legislators spend considerable time and resources determining and regulating the most humane methods. It borders on sociopathy not to recognize or acknowledge this.

Bringing down the system is always on the agenda, as it should be. Lethal injection litigation, however, is not and never has been a strategic step towards that end.

Posted by: DK | Dec 22, 2007 6:55:27 PM

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