[Deathpenalty] death penalty news-----USA, KY.

[Rick Halperin]

Nov. 13


USA:

DNA evidence builds case against the death penalty


I spent a couple weeks in Italy recently, and it was while watching a TV
news broadcast there that I learned that the U.S. Supreme Court had
granted a stay of execution to a convicted murderer in Mississippi.

I have no particular interest in the case of Earl W. Berry, who is on
death row for killing a woman 20 years ago. I'd never heard of him.

And initially I didn't understand why he was important enough to rate a
segment on Italy's RAI 2 TV station. My knowledge of the Italian language
is pretty rudimentary, but I understood that the news reporter was
interviewing some Italian death-penalty opponents in the United States who
were encouraged by the high court's action.

That's understandable. Italy, like most nations in Europe and indeed most
nations in the world, doesn't impose the death penalty. And some Italians
have difficulty understanding why the United States, the world's
wealthiest and most powerful nation, does.

It was with this in mind that I read with interest a report of a forum on
the death penalty held Friday in New Hope.

37 states, including Pennsylvania, employ capital punishment; 13 states
and the District of Columbia have no death penalty.

The Supreme Court's decision on Oct. 30 to at least delay Berry's
scheduled execution had really nothing to do with the merits of Berry's
appeal. However, it is being viewed as an indication that a majority of
the justices intends to block all executions until the court decides a
lethal injection case from Kentucky next spring.

The issue of capital punishment, always controversial, is being challenged
now on grounds that lethal injection, the form of execution used in
Pennsylvania and most death penalty states, might violate the
Constitution's Eighth Amendment prohibiting cruel and unusual punishment.

But there are other issues at hand that are causing some states to
reconsider their use of capital punishment.

Chief among these is the significant number of convicted murderers
sentenced to be executed for their alleged crimes who have been found to
be innocent, thanks in some cases to technological advances such as DNA
analysis.

Since 1973, 124 death-row inmates have been released from American prisons
after being declared innocent of the charges that landed them there.
There's no way of telling how many innocent people have been executed, but
it's giving many lawmakers something to ponder.

In Pennsylvania, state Sen. Stewart J. Greenleaf of Willow Grove, chairman
of the Senate Judiciary Committee, formed an advisory committee to examine
the cases of people who have been wrongly convicted in the state.

The commission consists of about 30 members drawn from the state's
prosecutors, defense attorneys, judges, corrections officials, police,
victim advocates and others. The commission is expected to report its
findings and recommendations to the Senate by Nov. 30, 2008.

Across the river in New Jersey, the state Assembly is expected to vote
next month on whether to abolish the death penalty and make the state's
most severe punishment life in prison without parole. The state Senate is
likely to take similar action before the legislative session ends in
January. If approved by the Legislature and signed by Gov. Jon Corzine,
who opposes the death penalty, the move would make New Jersey the 1st
state to vote to abolish capital punishment since the U.S. Supreme Court
reinstated it in 1976.

New Jersey, like several other states, has had a moratorium on executions
for at least a year.

Pennsylvania, while having no formal moratorium, has been historically
slow to carry out executions. The state has executed only three inmates
since the death penalty was reinstated in Pennsylvania in 1974. The last
execution was carried out in 1999. Yet, there are 226 inmates awaiting
execution on the state's death row.

I tend to waver in my support and opposition to capital punishment.

When I am in an emotional state  angry about some heinous act that has
been committed  I often hold the opinion that execution is too kind a
penalty for the offender.

But in more rational moments, I'm horrified to think that a state might
put to death a person wrongly accused.

If you think about it coolly and without the raging heat of vengeance
infecting your soul, what is capital punishment if not an emotionally
charged exercise in retribution, a primal act of vengeance.

I'm not suggesting we go soft on criminals. Criminals must be punished for
their lawless and often brutal acts. And a life sentence with no
possibility of parole is a suitable punishment.

Taking a life in exchange for a life serves no genuine purpose other than
tossing a hunk of meat to our baser appetites.

It's better to spare the lives of a thousand guilty individuals than to
take the life of one who is guiltless.

Because if we allow that to happen, we are no better than those bloody
ones we would condemn.

(source: phillyburbs.com)





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Jurisprudence: The law, lawyers, and the court.

Die Hardest----Why the states are standing by their outdated, messy
lethal-injection protocols.


Would a modified drug cocktail make lethal injection more humane?

It's unofficial: The country is in the throes of a de facto moratorium on
the death penalty. In the wake of a Supreme Court decision in September to
take a case testing the constitutionality of Kentucky's lethal-injection
protocol, and after a series of stays granted by state courts and the
Supreme Court, prosecutors in Texas and elsewhere announced they will stop
seeking execution dates. This past October was the first month in three
years in which nobody was executed in the United States.

As the machinery of death clanks to a temporary halt, the real question is
whether this pause in executions is going to lead to more humane death
chambers or an all-out ban. Death-penalty opponents are hoping for the
latter. John Holdridge, director of the ACLU's Capital Punishment Project,
says the moratorium "presents a rare opportunity to reflect on why we
remain the only advanced Western democracy to retain this punishment." The
American Bar Association just released a controversial report calling for
a serious re-examination of the ways the death penalty is
administeredhighlighting pervasive problems with DNA evidence, racial
disparity in death sentences, the state of the capital defense bar, and
overzealous prosecutors. Wisconsin Sen. Russ Feingold seized the moment to
draw attention to his Federal Death Penalty Abolition Act. It's not
surprising that foes of capital punishment are trying to turn this
spontaneous moratorium into a permanent one. But why are death-penalty
supporters letting it happen?

The question the court will tackle in the Kentucky case, Baze v. Rees
(PDF), is a narrow one, and the likelihood of a ruling resulting in an
all-out ban on executions is pretty much zero. The court will consider the
standard by which to evaluate whether the state's lethal-injection
protocol carries an "unnecessary" risk of pain, prohibited by the Eighth
Amendment. The justices will look at the three-drug cocktail used in
Kentucky and all but one of the 37 states (PDF) that permit capital
punishment (Nebraska still uses electrocution). The case comes down to a
constitutional quest for the somewhat-but-not-too-painful death, with
different lower courts employing a mess of legal standards, including
"wanton infliction of pain," "excessive pain," "unnecessary pain,"
"substantial risk," "unnecessary risk," and also "substantial risk of
wanton and unnecessary pain."

The prevalent 3-drug protocol consists of an anesthetic rendering the
victim unconscious, a paralytic that stops his breathing, and a drug that
stops his heart. Mounting evidence suggests some prisoners may be
suffering horribly. As Justice John Paul Stevens tartly pointed out at
oral argument on a related question, the lethal-injection procedure we use
"would be prohibited if applied to dogs and cats." (The American
Veterinary Medical Association issued guidelines in 2002 saying the mix of
drugs is unacceptable for putting animals to sleep.) Terminally ill
patients in Oregon can swallow a large dose of a single barbiturate that
will put them in a coma in minutes, and a state commission in Tennessee
recommended this in lieu of the 3-drug system. Even defenders of the
current protocol concede it was simply copied from state to state, each
cheerfully adopting the 1977 version cooked up by Dr. Jay Chapman,
formerly chief medical examiner in Oklahoma, who devised the system as a
hasty alternative to the firing squad. A state-to-state game of telephone:
That's how the national patchwork of lethal-injection protocolsmany
developed and administered in secretwas born. Thus, at a 1990 meeting with
Texas corrections officials to devise a protocol for Louisiana, Texas
officials were asked why they used 5 grams of sodium pentothal instead of
2 grams, like other states. According to testimony in a Louisiana appeal,
Texas' prison pharmacy director just laughed: "When we did our 1st
execution, the only thing I had on hand was a 5-gram vial. And rather than
do the paperwork on wasting 3 grams, we just gave all 5."

Dr. Chapman himself recently acknowledged that it's probably time to
change the method. He suggests an anesthetic called Diprivan. Michael
Rushford, president of the Criminal Justice Legal Foundation, a
pro-death-penalty group, agrees the cocktail is "open to criticism." He
would suggest carbon monoxide instead.

If academics, doctors, and prisonersas well as death-penalty supporters
and the guy who invented the protocolhave been criticizing the three-drug
protocol for years, why haven't the states switched methods? And once the
court agreed to hear Baze, why didn't Texas simply change to barbiturates
and keep its executions on schedule? You'd expect the states to choose
doling out the barbiturates instead of acceding to a monthslong moratorium
that will offer the public a chance to see that life without the death
penalty may still be worth living.

The reason the states haven't acted is one part strategic and one part
inertia. As the appellants' brief in Baze (PDF) points out, most of the
states have persistently stood by their protocols with the argument that
everyone else is doing it. Kentucky adopted Chapman's cocktail without
"any independent or scientific studies" because "other states were doing
it  on a regular basis."

As Richard Dieter at the Death Penalty Information Center points out, once
the Supreme Court granted certiorari in Baze, the states were forced to
defend their protocols en masse, even if they knew them to be flawed. If
even one state were to change its procedure now, prisoners in the other
states would have a constitutional claim. It's a form ofpardon the
punprisoner's dilemma; the states backed their way into a rotten system,
and now they must insist that it's the greatest, most constitutional
system around.

But Dieter points to another, more important reason states aren't racing
to embrace new execution methods: "The pitched battle over the death
penalty is not a rational one," he says. States that allow capital
punishment don't really want to kill a lot more people a lot more
efficiently. They want to execute some people, sometimes, and the
lethal-injection systemwhile flawed in substantive wayswas a political
solution to a political problem.

The politics of the fight over capital punishment may also explain why, as
professor Doug Berman pointed out, the Bush Justice Department seemed to
be secretly accepting a moratorium on lethal injections even before the
high court agreed to hear Baze. Berman's best hypothesis at the time?
"Most folks on both sides of the debate seem to care a lot more about
death sentences than they care about whether those sentences result in
actual executions."

Deborah Denno, a Fordham University law professor and expert on lethal
injection, highlights this same political inertia in a recent article in
the Fordham Law Review (PDF). State death-penalty procedures are screwed
up because while courts and lawmakers want to be tough on the death
penalty, they don't want to dirty their hands with execution. Denno writes
that "the entities most responsible for implementing the state's death
sentence never want to be associated with the details of itnot the
legislatures, not the courts, and until September 27, 2007, not the
Supreme Court." Thus, lethal injection policies land in the laps of the
states' department of corrections personnel, who have no expertise, and
thus depend blindly on the solutions found by other states.

The reason our death-penalty methods are old and rickety is that they were
cobbled together on the fly and broadly adopted without care. They are
being defended for political and strategic reasons, as opposed to
pragmatic ones. And the whole argument is a bad proxy for a larger fight
about capital punishment. If carelessness, raw politics, and inertia
should be driving policy, the current lethal-injection system is a
penalogical grand slam. One shouldn't have to be opposed to the death
penalty, be soft on criminals, or be a liberal crybaby to insist that
procedures that are hopelessly outdated and medically suspect should be
fixed.

(source: Dahlia Lithwick, Slate.com)






KENTUCKY:

Judge doesn't rule out execution----BARNETT FACES TRIAL IN KILLING OF CLAY
CITY CHIEF


A judge denied a defense motion yesterday to exclude the death penalty as
a possible sentence in the case of James H. "Jamie" Barnett Jr., the man
charged in the shooting death of Clay City Police Chief Randy Lacy.

Public advocate Marcus Jones sought to remove the death penalty from a
jury's consideration because the U.S. Supreme Court agreed in September to
consider whether Kentucky's method of executing prisoners is
constitutional.

Commonwealth's Attorney Darrell Herald argued that it is premature to
remove execution from consideration until the high court issues a ruling.

"Right now the law in Kentucky is that the death penalty is one of the
possibilities," Herald said.

Powell Circuit Judge Frank Fletcher denied Jones' motion.

So Barnett, 37, could face the death penalty if convicted of murder. Lacy,
55, had served 22 years in law enforcement and was the only active member
of the police force in Clay City.

Lacy arrested Barnett on June 13 on suspicion of drunken driving and put
him in the back seat of his police cruiser.

Barnett was handcuffed with his hands in front of him. Police said he was
able to reach Lacy's spare handgun while it was lying on a console in the
cruiser, according to testimony at a hearing earlier this year.

Whatever the U.S. Supreme Court decides on lethal injection could have
implications across the country. At issue is whether the 3-drug cocktail
used in lethal injection violates an inmate's Eighth Amendment right to
not suffer cruel and unusual punishment.

The high court's decision involves 2 appeals, one of them involving
another Powell County case.

Ralph Baze, 52, was scheduled to be executed Sept. 25, but the Kentucky
Supreme Court stayed the execution, citing Baze's pending appeals. Baze
has been convicted of gunning down Powell County Sheriff Steve Bennett and
Deputy Arthur Briscoe, Bennett's brother-in-law, in 1992.

The other appeals case was that of Clyde Thomas Bowling Jr., 54, who was
scheduled to be executed in November 2004. His execution was halted in
part because of the pending legal challenge to the state's execution
method.

Meanwhile, Barnett's trial has been postponed.

The trial had been scheduled to start Jan. 7 in Stanton. But defense
attorneys want Barnett to undergo a mental evaluation, and that probably
won't be completed before the trial date.

"Once they complete their evaluation, we may ask the court to have him
evaluated" at the Kentucky Correctional Psychiatric Center, Herald said.

Fletcher scheduled another pretrial conference for Dec. 19 to get an
update on the mental evaluations. No new trial date has been scheduled.

(source: Kentucky.com)