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

[Rick Halperin]

April 16


USA:

Supreme Court Allows Lethal Injection for Execution


The Supreme Court on Wednesday upheld Kentucky's method of putting
criminals to death by lethal injection, not only clearing the way for
Kentucky to resume executions but ending an unofficial moratorium in the
35 other states that have the death penalty. However one justice predicted
that the ruling would not end disputes over lethal injection and could
reignite the debate over capital punishment itself.

By 7 to 2, the court rejected challenges to the Kentucky execution
procedure brought by two death-row inmates, holding that they had failed
to show that the risks of pain from mistakes in an otherwise "humane
lethal execution protocol" amounted to cruel and unusual punishment, which
is banned by the Constitution.

The prisoners had contended that the 3-drug procedure used on death row -
1 drug each to sedate, paralyze and end life - was unconstitutional, and
that in any event there were strong indications that Kentucky had bungled
some executions, creating unnecessary pain for the condemned. Through
their lawyers, they maintained that problems could be largely solved by
administering a single overwhelming dose of a barbiturate, as opposed to
the 3-drug procedure.

The prisoners' challenge had implications far beyond Kentucky. Of the 36
states with the death penalty, all but Nebraska, which uses the electric
chair, rely on the same three-drug procedure that Kentucky uses. So does
the federal government. Now, with the Kentucky challenge disposed of,
other states that had set aside executions seem poised to begin them
again.

Gov. Tim Kaine of Virginia quickly announced that his state would lift its
moratorium on executions, and the Rev. Pat Delahanty, head of the Kentucky
Coalition to Abolish the Death Penalty, said, "We're going to be facing
some executions soon," The Associated Press reported.

Executions across the country have been on hold since last September, when
the Supreme Court decided to take the Kentucky case. About 2 dozen
executions did not go forward as scheduled while the case was pending,
death penalty opponents told the A.P. Because pre-execution procedures can
be time-consuming, there was no immediate way to gauge how quickly they
might resume. One prisoner who could be facing death soon, in view of the
Governor Kaine's remarks, is Edward Bell, who is on Virginia's death row
for killing a Winchester police officer. Mr. Bell's execution had been set
for April 8.

In a decision written by Chief Justice John G. Roberts Jr., which weighed
the Kentucky prisoners' claims that they faced an unacceptably high risk
of suffering at the hands of their executioners, the court concluded that
Kentucky's continued use of the three-drug protocol cannot be viewed as
posing an "objectively intolerable risk" when no other state has adopted
the 1-drug method and petitioners have proffered no study showing that it
is an equally effective manner of imposing a death sentence."

The prisoners who brought the challenge were Ralph Baze, who killed a
sheriff and a deputy who were trying to serve him with a warrant, and
Thomas C. Bowling, who killed a couple whose car he had damaged in a
parking lot.

The procedure that they challenged uses a barbiturate, then pancuronium
bromide, a paralyzing agent, followed by potassium chloride, which stops
the heart and brings about death - but with terrible pain if the
barbiturate does not work as intended, the condemned men's lawyers
maintained. And because of the paralyzing agent, a prisoner could appear
peaceful and relaxed even while suffering, they argued.

Lawyers for the prisoners contended that the barbiturate-only method is
widely used by veterinarians, who are barred in many states from using the
same paralyzing agent employed in executing people. But the court rejected
that argument, stating that "veterinary practice for animals is not an
appropriate guide for humane practices for humans." The 6 justices who
concurred in the judgment - with varying degrees of agreement - were
Anthony M. Kennedy, Samuel A. Alito Jr., John Paul Stevens, Antonin
Scalia, Clarence Thomas and Stephen G. Breyer.

Alluding to the Eighth Amendment's prohibition of cruel and unusual
punishment, the court said history leads to the conclusion that "an
execution method violates the Eighth Amendment only if it is deliberately
designed to inflict pain," a standard that bars disemboweling, burning
alive and other excruciating ways of bringing about death. "Judged under
that standard, this is an easy case," the court held.

But the deliberations were not easy, if the number of opinions is any
indicator. Although 7 members concurred in the judgment of the court, only
Justices Kennedy and Alito (who filed a concurring opinion of his own)
joined Chief Justice Roberts's opinion. Justices Scalia and Thomas joined
each other's concurring opinions.

Justices Ruth Bader Ginsburg and David H. Souter dissented from the
court's judgment. I would not dispose of the case so swiftly given the
character of the risk at stake," Justice Ginsburg wrote, declaring that
she would have sent the case back to the Kentucky courts for further
scrutiny of the condemned men's claims.

Perhaps most interestingly, Justice Stevens filed an opinion concurring in
the judgment of the court, but by no means embracing capital punishment.
Indeed, he asserted that recent decisions by state legislatures, Congress
and the Supreme Court itself to preserve the death penalty "are the
product of habit and inattention rather than an acceptable deliberative
process that weighs the costs and risks" of the ultimate punishment.

Justice Stevens noted that in the 1976 decision in which the Supreme Court
upheld the constitutionality of capital punishment, Gregg v. Georgia, the
court declared that "3 societal purposes" justified the death penalty:
"incapacitation, deterrence and retribution."

"In the past 3 decades, however, each of these rationales has been called
into question," Justice Stevens said. The possibility of a life sentence
without parole, he said, has often caused people to soften their positions
in favor of inflicting death.

"Full recognition of the diminishing force of the principal rationales for
retaining the death penalty should lead this court and legislatures to
re-examine" the ultimate question, Justice Stevens wrote, using a phrase
used by a former Texas prosecutor and judge: "Is it time to kill the death
penalty?"

Coming from Justice Stevens, those words could be especially significant.
The justice (who will turn 88 on Sunday) was one of the 7 justices who
voted in 1976 to uphold capital punishment. Since then, he has heard many
challenges to various aspects of the death penalty and the "evolving
standards of decency" often invoked by its opponents. In 2002, Justice
Stevens was in the majority as the court ruled that mentally retarded
killers could not be executed, and in 2005 he was in the majority as the
court banned the death penalty against juvenile offenders.

Deborah Denno, a Fordham University law professor, said further
death-penalty litigation is all but certain in light of the court's
"heavily splintered" opinions on Wednesday, in part because the court
recognized that "a risk of harm can qualify as an Eighth Amendment
violation."

On Wednesday, after handing down their opinions in the Kentucky case, the
justices heard arguments in a death penalty case from Louisiana. The
question was whether the Constitution allows capital punishment for the
rape of a child who is not killed.

(source: New York Times)

**************

The death penalty in the United States


The U.S. Supreme Court on Wednesday rejected a challenge to the lethal
three-drug cocktail used in most U.S. executions during the past 30 years.
This cleared the way for a resumption of executions halted since last
September pending the court's decision.

Following are some facts and figures about the death penalty in the United
States since 1977, when executions resumed following the lifting of a ban
on the practice by the U.S. Supreme Court the previous year.

- There have been 1,099 executions in the United States since 1977. The
peak year was 1999, when 98 were carried out while no inmates were put to
death in 1978 and 1980.

- 42 people were executed in the United States in 2007, the lowest number
since 1994 when 31 were put to death.

- 2005, the last year for which data is available, saw 128 death sentences
imposed, the lowest number over the past 3 decades. The peak year was 1996
when 317 were handed down.

- The death penalty is sanctioned by 37 of the 50 states and the U.S.
government and the military. Lethal injection is the main method used by
all of the death penalty states except for Nebraska which uses the
electric chair.

- The standard method involves administering three separate chemicals:
sodium pentothal, an anesthetic to make the inmate unconscious;
pancuronium bromide, which paralyzes all muscles except the heart; and
then potassium chloride, which stops the heart, causing death.

- Texas has been by far the most active death penalty state in the
post-1976 era with 405 executions. Virginia is a distant 2nd at 98.

- Amnesty International this week issued a report that ranked the United
States 5th in the world in the number of executions in 2007, behind China
(470), Iran (317), Saudi Arabia (143), Pakistan (135). These 5 countries
accounted for 88 % of all known executions.

(sources: Death Penalty Information Center, Texas Department of Criminal
Justice, Amnesty International, Reuters)

*************************

Stevens declares opposition to death penalty


Justice John Paul Stevens, a key vote in upholding the death penalty 30
years ago, now says he believes capital punishment is unconstitutional.

Stevens on Wednesday became the first of the 9 sitting justices to say the
death penalty violates the Eighth Amendment ban on cruel and unusual
punishment.

"I have relied on my own experience in reaching the conclusion that the
imposition of the death penalty represents 'the pointless and needless
extinction of life with only marginal contributions to any discernible
social or public purposes. A penalty with such negligible returns to the
state (is) patently excessive and cruel and unusual punishment violative
of the Eighth Amendment,'" he said in a concurring opinion rejecting a
challenge to lethal injections in Kentucky.

He said, however, that he will respect court precedents in favor of
capital punishment, explaining why he voted against the death row inmates
in Kentucky.

Stevens' comments are reminiscent of the public conversion of Harry
Blackmun, months before his retirement in 1994.

Blackmun repudiated his career-long acceptance of capital punishment and
declared himself opposed to the death penalty in all circumstances.

"The death-penalty experiment has failed. I no longer shall tinker with
the machinery of death," Blackmun wrote. 2 other justices who served many
years with Blackmun  William Brennan and Thurgood Marshall  were longtime
death penalty opponents who most often were in the minority in capital
cases.

Stevens, who turns 88 on Sunday, has given no indication that he plans to
retire. He was new to the court when he co-authored the controlling
opinion in 1976 that held that the death penalty is constitutional.

On Wednesday, he urged his colleagues to re-examine the constitutionality
of capital punishment because of concerns that it is used in a racially
discriminatory way and risks executing the innocent.

On the Net: Supreme Court: http://www.supremecourtus.gov

(source: Associated Press)

************************

High court split over execution of child rapists----Louisiana man is on
death row for the rape of his 8-year-old stepdaughter


Court banned execution for rape in 1970s, but Louisiana law differs

Stevens, Ginsburg and Breyer express concern about fair application of law

Justice Kennedy might be the swing vote

The Supreme Court focused Wednesday on whether "evolving standards of
decency" in the United States forbid a resumption of capital punishment
for any felony but murder. But the justices offered no clear indication of
how they will rule in the case of a man who is on Louisiana death row for
raping a child.

Patrick Kennedy, 43, is on Louisiana's death row for the rape of his
8-year-old stepdaughter.

"The trend since 1995 has been more and more states are passing statutes
imposing the death penalty in situations that do not result in death" to
the victims, said Chief Justice John Roberts, who appeared to support the
state's position.

Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer
expressed concern about applying the death penalty fairly.

"It gives tremendous discretion to the prosecutor to pick and choose who
should be executed," Breyer said, summarizing the position of death
penalty opponents. He wondered whether degrees of child abuse could be
capital eligible, including molestation not involving intercourse.

Patrick Kennedy, 43, would be the 1st convicted rapist in 44 years to be
executed in a case in which the victim was not killed.

He was sentenced to die in 2003 for sexually assaulting his 8-year-old
stepdaughter in her bed. In addition to severe emotional trauma, the
attack caused internal injuries and bleeding to the child, requiring
extensive surgery, Louisiana prosecutors said.

Both in 1976 and a year later, the U.S. Supreme Court banned capital
punishment for rape -- and, by implication, any other crime except murder.
But 19 years later, Louisiana passed a law allowing execution for the
sexual violation of a child under 12. State lawmakers argued that the
earlier high court cases pertained only to "adult women."

In oral arguments Wednesday, Kennedy's lawyer, Jeffrey Fisher, faced
spirited questioning from several conservative justices.

Rape child and pay with your life, Louisiana says

"Our jurisprudence just requires the narrowing of the death penalty to be
[for] particularly heinous crimes," Justice Antonin Scalia said. "And one
could say the rape is in and of itself particularly heinous, rape of a
child of 12 or under."

But Fisher said Louisiana's law "is particularly at odds with national
values" on whether the death penalty should be expanded.

The high court has in recent years banned execution for the mentally
retarded, underage killers and those receiving an inadequate defense at
trial.

Those exceptions drew a good deal of interest from the justices in the
one-hour argument over what the trend now is.

"What about treason?" asked Justice Anthony Kennedy, a possible swing
vote. He noted that the European Convention on Human Rights generally
opposes the death penalty, except for treason. "You can slaughter your
fellow citizens, but if you offend the state, you can be put to death."

And Texas Solicitor General Ted Cruz told the high court that "few
evolving standards are more pronounced than the growing understanding in
modern society of the unique and irreparable harm caused by violent child
rape."

Florida, Montana, Oklahoma and South Carolina have long had death-penalty
laws for rape but have not applied them in decades. Texas enacted a
version in June, but no defendant has been designated death-eligible for
child rape in any state but Louisiana. Texas and other states have
submitted a "friend of the court" brief in the case, supporting
Louisiana's position.

Kennedy recently was joined on Louisiana's death row by another child
rapist, Richard Davis. Davis' legal appeals have barely begun.

Arguing for the state, Juliet Clark, Jefferson Parish assistant district
attorney, described in some detail the injuries suffered by the victim in
an attack Clark called "savage."

In their appeal, Kennedy's lawyers repeatedly raised the issue of skin
color and whether that has played a factor in the political and legal
debate over expanding capital crimes to include rape. Kennedy and the
victim are both African-American.

Billy Sothern of the Capital Appeals Project cited Department of Justice
statistics that all 14 rapists executed by Louisiana in the past 75 years
or so were African-American. Nationwide from 1930 to 1964, nearly 90
percent of executed rapists were black, he said.

But race did not come up in court Wednesday.

No one in the United States has been executed for rape since 1964. Other
state and federal crimes theoretically eligible for execution include
treason, aggravated kidnapping, drug trafficking, aircraft hijacking and
espionage. None of these crimes has been prosecuted as a capital offense
in decades, if ever.

Supporters of Louisiana's law say that besides murder, no crime is more
deserving of the death penalty, and that the punishment would be used only
in the most heinous of circumstances.

Death penalty opponents contend, among other things, that it could give
attackers a reason to murder their victims.

A ruling is expected by late June.

(source: CNN)

***************

High court upholds lethal injection method----7-2 ruling, upheld
Kentucky's use of lethal injection "cocktail" is constitutional

High court said Method -- used in some 35 states -- is not "cruel or
unusual"

The immediate impact of ruling is that it will allow states to resume
executions

Recent lethal injection executions in Florida and Ohio had technical
problems

The Supreme Court, in a 7-2 ruling, upheld Kentucky's use of lethal
injection as a means of executing prisoners, ruling that the method --
used in some 35 states -- is properly and humanely applied. The Supreme
Court ruled Wednesday that Kentucky's use of lethal injection is not
"cruel and unusual."

At issue was whether the most common method of capital punishment can
cause excruciating pain for death row inmates, violating the
Constitution's ban on "cruel and unusual punishment," and thereby giving
inmates a proper challenge in court.

The justices had never before directly addressed the fundamental question
over the constitutionality of the chemical "cocktail" of drugs used to
execute convicted killers. All but one of the states that perform
executions use the 3-drug mixture.

"Kentucky has adopted a method of execution believed to be the most humane
available," wrote Chief Justice John Roberts for the majority. "If
administered as intended, that procedure will result in a painless death."

The immediate impact of the ruling is that it will allow states to resume
executions, which had been on hold since September while the high court
considered this appeal. No executions are scheduled in the next few weeks.

The ruling gives guidance to other states, some of which may have to
modify their procedures to fall in line with Kentucky's method and thereby
survive judicial scrutiny.

Kentucky inmates Ralph Baze and Clyde Bowling Jr. brought suit in federal
court three years ago, questioning that state's three-chemical mixture and
the procedures used to administer it.

They claim the 1st drug -- sodium thiopental -- which renders the prisoner
unconscious, wears off too quickly, and that some prisoners are actually
awake and able to feel pain as the procedure continues.

The 2nd drug -- pancuronium bromide -- which paralyzes all muscle
movement, then prevents the condemned person from speaking out and
expressing awareness of the pain, according to the suit, and the 3rd drug,
potassium chloride, which induces cardiac arrest, is "excruciatingly
painful in a conscious person."

"We ... agree that petitioners have not carried their burden of showing
that the risk of pain from maladministration of a concededly humane lethal
injection protocol, and the failure to adopt untried and untested
alternatives, constitute cruel and unusual punishment," said Roberts. His
opinion had the support of only 2 other justices. Three others agreed with
the outcome but wrote separate concurring opinions.

Justices Ruth Bader Ginsburg and David Souter dissented. Ginsburg said
Kentucky failed to consider "readily available safeguards" to ensure
inmates were not subject to pain. She urged the state to revise its
procedures, which she suggested might create "an untoward, readily
avoidable risk of inflicting severe and unnecessary pain."

Baze, 52, admits killing Powell County Sheriff Steve Bennett and Deputy
Arthur Briscoe in 1992 while the lawmen were trying to serve him with
arrest warrants.

Bowling was convicted of killing Edward and Tina Earley in Louisville in
1990. Their 2-year-old son was wounded in the attack in the couple's dry
cleaning business parking lot. Bowling's lawyers have claimed
prosecutorial misconduct in the case, and say their client has a low IQ.

State officials have said their lethal-injection procedures are in line
with other states, and a doctor is on site and available to provide any
pre-execution medical care to the inmate.

A Texas inmate was put to death the day the high court accepted the
Kentucky cases in late September, but since then, the justices have
stepped in and imposed a de facto moratorium nationwide.

Only 26 people were executed last year, the lowest total in more than a
decade. No executions have taken place this year.

The justices spent nearly 6 months debating behind closed doors the
threshold when execution procedures become unconstitutional. Both sides of
this politically charged national debate were hoping for clear guidelines
from the Supreme Court to help guide capital inmates and the courts.

Different states and different judges have applied different standards
over whether an inmate can make a challenge to the method of execution.

Recent executions in Florida and Ohio were rife with problems, taking much
longer than expected when technicians had trouble inserting IVs into the
prisoners' veins.

The Supreme Court in 2006 ruled prisoners could make last-ditch legal
challenges to the method of execution, using claims that they would suffer
a painful death.

"The question before the court was how much risk of unnecessary pain is
too much risk of unnecessary pain under the Constitution," said Edward
Lazarus, an appellate attorney and Supreme Court legal analyst. "There is
evidence to show that this is somewhat of an inhumane way to approach
this, but there's going to be a group of justices who really think we
shouldn't be in the business of micro-managing the death penalty, [who
say] if state legislatures think that this is OK, that's going to be fine
with us."

(source: CNN)






FLORIDA:

Florida scurries to get executions back on track


Florida wasted little time trying to get executions back on track after
the U.S. Supreme Court ruled Wednesday that Kentucky can continue using
lethal injection to carry out the death penalty.

Attorney General Bill McCollum quickly sent paperwork to the U.S. Supreme
Court asking for permission to go ahead with the execution of child killer
Mark Dean Schwab, who the state was supposed to kill last November.
Kentucky and Florida have nearly identical lethal injection procedures.

Gov. Charlie Crist immediately asked for a list so he can pick who among
the state's worst killers should now prepare to die.

Crist will have plenty to choose from: There are 338 people on death row.

The governor said he wants a list of five or so death row inmates who have
served the longest or committed the worst crimes so he can sign his second
death warrant since taking office in January 2007.

"Justice delayed is justice denied and an awful lot of families of the
victims have been waiting for justice to be done, and so that's certainly
an important factor," Crist said. "But in addition, the heinous nature of
the crime itself is important to consider."

Gary Alvord has been on death row the longest. Last week marked the 34th
anniversary of his arrival there after being convicted of killing 3
Tampa-area women.

Schwab's case easily falls in the heinous category, and the governor will
have to set a new date for his execution if the Supreme Court agrees
Florida can resume lethal injections.

Schwab was supposed to be executed last November for raping and murdering
11-year-old Junny Rios-Martinez in 1991. The boy was strangled or
suffocated. He received his stay just four hours before his scheduled
procedure. His death was held up while the U.S. Supreme Court considered
the Kentucky case.

McCollum said his belief that Florida's executions "are constitutionally
sound has been upheld by the highest legal authority in the nation."

Last year was the first since 1982 that there wasn't an execution in
Florida. Gov. Jeb Bush placed a moratorium on executions as Crist was
getting ready to take office. Bush called for a study of lethal injection
after it took twice as long as usual - 34 minutes - for convicted killer
Angel Diaz, 55, to die in December 2006.

An investigation found the needles had been pushed through Diaz's veins
into his flesh, reducing the drugs' effectiveness.

Corrections officials responded by ordering more training and monitoring
of its execution team. The new procedures also include a delay after the
1st chemical, the anesthetic sodium pentothal, is injected to make sure an
inmate is unconscious before the other drugs are administered.

The 2nd chemical causes paralysis and the third stops the heart from
beating, which can result in severe pain if a person is conscious.

Critics of the 3-drug system say the paralyzing drug is unnecessary and
prevents an inmate from showing any sign of pain. Some have advocated
using only sodium pentothal because it also is lethal in large doses.

Crist lifted the moratorium when he signed Schwab's death warrant in July.

The Florida Supreme Court rejected arguments about lethal injections from
Schwab this year. His lawyers said the state Corrections Department
execution team botched 2 of 5 training sessions using recently adopted
procedures.

Schwab's lawyers also contend that during the exercises, a Florida
Department of Law Enforcement official who is supposed to monitor the
mixing of lethal chemicals, was insufficiently trained.

(source: Miami Herald)

****************

Crist says death row process will re-start


Gov. Charlie Crist is ready to begin signing death warrants after
Wednesday's U.S. Supreme Court decision clearing the use of lethal
injection in a Kentucky case.

The wait for the decision had acted as a de facto hold on executions in
Florida and other states.

Crist said he was grateful that the Supreme Court rendered the decision
that they did. This is a serious subject. The governor added that courts
are still considering the death row appeal of Mark Dean Schwab, a child
killer, so no decision will be made on that paused process.

"In the meantime, because of the ruling  we may consider signing
additional death warrants," Crist said. He has asked Rob Wheeler of his
legal staff to produce a "short list" of death row prisoners who could now
receive lethal injections.

Crist said the main criteria would be how "heinous the crime" committed by
the prisoners and how long they have been on death row.

"Justice delayed and justice denied and an awful lot of families of the
victims have been waiting for justice to be done," Crist said.

(source: Sarasota Herald Tribune)






TENNESSEE:

Tennessee Death Row Inmate: Prosecutors Would be "Idiots" to Retry Him


Tennessee death row inmate Paul House says prosecutors would be "idiots"
if they begin a new trial against him after nearly 22 years.

In an interview Wednesday, April 16, 2008, with The Associated Press,
House said he's lost all faith in the criminal justice system and may
pursue a lawsuit in his conviction for the 1985 killing of Carolyn Muncey.

The U.S. Supreme Court ruled in 2006 that the jury that convicted House
didn't hear testimony that could have exonerated him for the killing of
Muncey.

In December a federal judge ordered House's release unless prosecutors
begin a new trial against him within 180 days.

House, who suffers multiple sclerosis and must use a wheelchair, has been
granted release after a May 28 court hearing.

(source: Associated Press)






KENTUCKY:

Both sides react to the Supreme Court ruling over Kentucky's lethal
injection process---High court strikes down death row challenge


The courts have spoken -- Kentucky's use of lethal injection is
constitutional. Wednesday, the U.S. Supreme Court struck down a legal
challenge by 2 Kentucky death row inmates. Executions have been on hold in
the Commonwealth since September when the Supreme Court agreed to hear the
case. WAVE 3's Mark Schnyder was in Frankfort and has reaction from both
sides about the decision.

"It's not something everyone wants to do, but it is our law," said J.
Michael Brown, Kentucky Justice Secretary.

The case before the U.S. Supreme Court is whether Kentucky execution
method was cruel and unusual punishment. The high court ruled 7 to 2 that
the state's three drug injection cocktail is not.

"As soon as we've determined that all the remedies are exhausted and it's
appropriate to seek the death warrants, we will do so. I'll do that.
That's my job," said Jack Conway, Kentucky Attorney General.

Both Conway and Brown call the court upholding the use of lethal injection
a sweeping vindication of their procedures. Advocates for those on death
row say the 7 to 2 decision illustrates a country divided on the death
penalty.

"I believe that the death penalty is not necessary for public safety. I
believe it's extremely costly," said Ernie Lewis of the Department of
Public Advocacy.

Thomas Bowling and Ralph Baze are the inmates on death row that got this
case to the Supreme court. Of the 38 inmates on Kentucky's death row, they
are the furthest along in the appeals process. Conway made it clear that
he has no idea who could be executed first.

(source: WAVE)