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May 3, 2008

The haze and litigation maze after Baze

0504natwebexecute The first few weeks after the US Supreme Court upheld the constitutionality of Kentucky's lethal injection protocol have been relatively calm.  But, as documented by lots of new media stories, the post-Baze legal haze and litigation maze is about to kick into high gear.

First, as detailed in this long New York Times article, "[l]ess than three weeks after a United States Supreme Court ruling ended a seven-month moratorium on lethal injections, at least 14 execution dates have been set in six states between May 6 and October."  This article provides the list of scheduled executions posted above, and it also details that "Texas leads the list with five people now set to die here in the Walls Unit, the state's death house, between June 3 and Aug. 20.  Virginia is next with four.  Louisiana, Oklahoma and South Dakota have also set execution dates."

But, as detailed in this new CNN.com story, the venerable NY Times apparently missed some of the lethal injection news that is fit to print.  According to CNN, Mississippi is trying to be the first state to conduct a post-Baze execution: "state officials [are] pushing for an execution Monday" of Earl Wesley Berry, who "came within 21 minutes of dying at the hands of the state of Mississippi in October, before the Supreme Court issued a last-minute stay."

Meanwhile, Lyle Denniston has this report at SCOTUSblog about efforts to press a new type of lethal injection argument in the Fourth Circuit: "lawyers for a Virginia inmate on Friday asked a federal appeals court to allow review of a possible one-drug approach in place of the three drugs commonly used now."  Lyle's report indicates that the Fourth Circuit "has scheduled a hearing for Wednesday, May 14."

Not to be overlooked, StandDown Texas has this effective round-up of lethal injection media stories from Virginia, Mississippi, and Arkansas. One of the Arkansas stories indicates that the state "Attorney General says he plans to send death warrants to the Governor within the next thirty days."

Though there are lots of fascinating aspects to all this news, I found especially telling and questionable these comments in the NY Times article from two well-known experts on the death penalty:

Experts say the resumption of executions is likely to throw a strong new spotlight on the divisive national — and international — issue of capital punishment.  "When people confront a new wave of executions, they'll be questioning not only how people are executed but whether people should be executed," said James R. Acker, a historian of the death penalty and a criminal justice professor at the State University at Albany....

"There will be more executions than people have the stomach for, at least in many parts of the country," said Stephen B. Bright, president of the Southern Center for Human Rights in Atlanta, a leading anti-death-penalty litigation clinic.

Call me either a realist or a cynic, but I think Acker and Bright are wrong.  Most of the executions will take place in states with a long-standing affinity for the death penalty, and thus I would be surprised if a "new wave of executions" changes dramatically any of the debates and perspectives folks have concerning the death penalty.  Given that most national politicians have been actively avoiding serious discussion of the death penalty (both before and after Baze), I do not expect a serious change in capital conversations even if we end up see a few executions every week for the rest of 2008.

May 3, 2008 at 01:18 PM | Permalink


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Tracked on May 5, 2008 7:44:13 PM


One issue is whether federal courts will enforce the rules about the timeliness of lethal injection challenges. They should.

Posted by: federalist | May 3, 2008 3:12:53 PM

Another issue is the constant barrage of the exonerated in Texas.

Posted by: George | May 3, 2008 3:44:43 PM

Professor Berman,

regarding the last paragraph of your post - I fear you're a realist...


Posted by: Joachim | May 3, 2008 4:16:16 PM

"Call me either a realist or a cynic, but I think Acker and Bright are wrong."

I agree with Joaquim that you are a realist, but I see nothing to fear in that.

Posted by: Kent Scheidegger | May 3, 2008 6:03:00 PM

Thanks for updating us.

Posted by: personal injury lawsuit loan | May 4, 2008 2:02:43 AM

So, back to the good ol' days is it?
For those that haven't, listen and weep:

Posted by: peter | May 4, 2008 5:47:40 AM

Mr. Scheidegger,

I see a lot to fear. Not only because the 129th human being is freed from death row or my pen pal Troy Davis in GA maybe soon will face an execution date...

To me - as a non-lawyer - it seems that in the last months most of the discussion regarding the death penalty was on technique. But in my opinion the most important point is whether a society is allowed to execute people in the name of justice or not.I say "No" - I assume you will say "Yes". But on which basis do we argue against it or in favor of it?

Best wishes.


Posted by: Joachim | May 4, 2008 10:44:40 AM


On the basis of Justice, of course. I don't think you'll get too many arguments against the idea that a punishment must fit the crime. By that standard, the only punishment appropriate for the crime of murder is the death penalty.

Posted by: realist | May 4, 2008 9:59:20 PM

Hi realist,

do you think the execution of Kelsey Patterson (2004), who suffered from paraonid schizophrenia was "Justice"? http://www.amnesty.org/en/library/asset/AMR51/047/2004/en/dom-AMR510472004en.html

And regarding the standard that the death penalty is the appropriate punishment for murder. This logic implicates that the rapist has to be raped, the thief has to be robbed and so on. I guess you agree with me that this doesn't make sense.


Posted by: Joachim | May 5, 2008 10:26:37 AM

This logic implicates that the rapist has to be raped, the thief has to be robbed and so on.

I'm not sure what's so clearly nonsensical about this. Replace "has to" with "deserves to," and I'm not quite sure what the problem is.

Posted by: | May 5, 2008 5:45:46 PM

death penalty is not a solution. If you are still a human in 21st century, then you should be against death penalty.

Posted by: lawsuit loan | May 30, 2009 12:04:28 PM

death penalty is not solution but sometimes you have no options. If you're in charge, what would you do with a man who killed or raped 20 children?

Posted by: loan | Jun 13, 2009 7:16:34 PM

justice or revenge...
what u prefere?

Posted by: enema bag | Oct 16, 2009 2:21:03 PM

I agree with Joachim - so are we supposed to rape all the rapists and give drugs to the drug dealers. makes no sense

Posted by: nina | Mar 20, 2010 8:29:50 AM

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