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September 14, 2015

Is the death penalty on "life support" or about to have a quickened pulse?

NptuDCEThe question in the title of this post is prompted by this huge new USA Today article headlined "Courts, states put death penalty on life support." Here are some excerpts from the lengthy article that is well-told in multiple chapters:

If there is such a thing as a lock for the death penalty, the case against Daniel Higgins appeared to be just that. Already sought for sexually assaulting a child, Higgins killed Sheriff's Sgt. Michael Naylor last October with a point-blank shot to the head, making him the only deputy slain in the department's 130-year history. "I wanted him dead," Sheriff Gary Painter says of the murderer.

But Naylor's widow, Denise Davis, said she couldn't bear the likely rounds of appeals that could stretch on for decades.  Higgins was allowed to plead guilty and was sentenced to life without the possibility of parole.  The death penalty in America may be living on borrowed time.

The emotional and financial toll of prosecuting a single capital case to its conclusion, along with the increased availability of life without parole and continuing court challenges to execution methods, have made the ultimate punishment more elusive than at any time since its reinstatement in 1976.

Prosecutors, judges and juries also are being influenced by capital punishment's myriad afflictions: racial and ethnic discrimination, geographic disparities, decades spent on death row and glaring mistakes that have exonerated 155 prisoners in the last 42 years.

Those trends may be squeezing the life out of the death penalty.  That doesn't even take into account the added burden of legal clashes, legislative repeals, and problems finding and administering drugs for lethal injections.

The Supreme Court in June upheld a controversial form of lethal injection by the narrowest of margins, thereby giving Oklahoma the green light to reschedule three executions.  But courts in many states continue to wrestle with that issue, and the justices have four more death penalty cases on their docket this fall challenging the roles of Kansas juries, Florida judges and Georgia prosecutors....

Still, the Supreme Court has twice upheld the constitutionality of lethal injection, first in 2008 and again in June, when the justices ruled 5-4 that Oklahoma can use a sedative involved in three botched executions last year.  Justice Samuel Alito, writing for the majority, said challengers could not suggest a better alternative.

The ruling gave impetus to states such as Alabama and Mississippi seeking to jump-start executions after a hiatus of several years.  But it also rejuvenated legal efforts by groups opposed to the death penalty, who continue to fight against lethal injection protocols in several states....

Several states took the high court's ruling as a reason to rejuvenate the death penalty. Missouri wasted little time resuming executions, putting David Zink to death two weeks later, on July 14.  Texas, by far the nation's leader in executions with 528 since the Supreme Court reinstated capital punishment in 1976, followed suit with an execution in August and has six more on tap this year.

States from Florida to Montana that have not killed anyone for several years are in court, seeking to rejuvenate dormant death penalties.  Some states are establishing backup methods in case lethal injections become impossible.  Eight permit electrocution, three allow gas chambers, three allow hanging, and two would use firing squads -- as Utah did in 2010 and 2013....

Nebraska this year became the first "red" state to ban capital punishment.  That law faces potential repeal in 2016 if death penalty proponents can put it to a vote.  The attention Nebraska received overshadowed near-misses in Delaware, where Rep. Sean Lynn says the death penalty is applied in discriminatory fashion, and Montana, where Rep. David Moore says the costs are proving to be unaffordable....

The debate over lethal injection has energized legislatures as well as courts and corrections departments.  North Carolina and Arkansas, two Southern states seeking to rejuvenate their dormant death penalties, approved laws this year that impose secrecy on the source of lethal injection drugs.  Arkansas recently purchased a new supply of drugs.

The problem for the legal system is that it's more of a medical issue.  Some drugs, such as sodium thiopental and pentobarbital, no longer can be obtained from European drug makers.  That has sent states scurrying to compounding pharmacists, where the drugs they get are not subject to Food and Drug Administration regulation.

But those pharmacists aren't pleased.  Its trade group in March discouraged members from "participating in the preparation, dispensing or distribution of compounded medications for use in legally authorized executions."  A week later, the American Pharmacists Association called executions "fundamentally contrary to the role of pharmacists as providers of health care."

I would recommend this USA Today article to anyone looking for an effective up-to-date account of the current state of the death penalty in the United States. But while the piece details all the notable barriers and hurdles in the way of continued use of the death penalty and execution, it does not fully note that the Glossip case could well have removed enough legalistic barriers to allow traditional "death belt" states and a few others to conduct multiple executions in the coming months.

Notably, this Death Penalty Information Center scheduled execution page details nine serious execution dates in five different states for the month of October. If all (or even most) of these executions get carried out without any unusual difficulties or Supreme Court intervention, I suspect additional states will feel emboldened to try a bit harder to get its death machinery up-and-running again in 2016.  And especially if Ohio can get the drugs it needs to conduct executions, I think 2016 could see a significant uptick in nationwide executions.

Especially with a death penalty referendum on the ballot in Nebraska and a presidential election season in full swing, I think 2016 will be an especially interesting and important year for the future of the death penalty in the United States.  Though it is certainly possible to look at recent developments to predict the coming demise of capital punishment, the death penalty in the United States has historically found ways to stay alive and kicking.

September 14, 2015 at 12:16 PM | Permalink


"States from Florida to Montana that have not killed anyone for several years are in court, seeking to rejuvenate dormant death penalties."

Um, Florida executed Johnny Shane Kormondy on January 15th of this year. Doesn't USA Today have any fact checkers?

Posted by: alpino | Sep 14, 2015 7:20:57 PM

The article appears to have been edited and now it says "Alabama" though "several years" there would be about two given someone was executed in July 2013.

Posted by: Joe | Sep 14, 2015 10:14:58 PM

The death penalty is comatose, on a respirator, and only medication on a totally open IV is maintaining its blood pressure. It is in reality, dead. It is only being maintained to provide jobs for the death penalty appellate bar.

I have discussed the dose response curve as likely applying to all remedies. Too little does not work, nor help. Too much is toxic and potentially lethal. There is correct region of the curve. Finding that region is a requirement for all proposed remedies. That region is in the hundreds or thousands of executions a year, not in the dozens. It works by expelling. I am assuming no deterrence effects. It is the most reliable incapacitation, and is not even a real punishment. It should be the cheapest and most effective. In the hands of the lawyer is the most expensive and least effective.

Posted by: Supremacy Claus | Sep 15, 2015 1:13:50 AM

Left wing real asshole, John Oliver, says about public defenders,


If this moron realizes it, why can't the lawyer super dumbasses?

Posted by: Supremacy Claus | Sep 15, 2015 3:28:42 AM

At this point, I would support ending the death penalty to see the thousands of death penalty appellate lawyers fired. These are pro-criminal, sub-human, reptile scum. Do the death penalty right or do not do it at all.

A direct action movement would bring the violence to the legislators and appellate court judges that protect and privilege the murderer. Say, a loved one is murdered. Hunt, find, and beat the ass of 10 pro-criminal legislators. Lash them. Given the yearly death toll by their clients, these lawyer traitors are fully responsible for every murder. Their legal immunity fully justifies violence in formal logic. A boycott by all product and service providers has full legal and moral justification. That would include medical providers. If a lawyer is on the black list, do nothing. Watch the reptile die, just as it killed a loved one. To deter.

Posted by: Supremacy Claus | Sep 15, 2015 7:53:42 AM

I, fully, rebutted the article, here"

How bad is

"Courts, states put death penalty on life support", Richard Wolf & Kevin Johnson, USA TODAY, 9/14/2015

Posted by: Dudley Sharp | Sep 22, 2015 4:17:26 PM

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