[Deathpenalty] death penalty news----USA

[Rick Halperin]

April 17



USA:

States abandon execution moratorium

Virginia lifts death penalty moratorium

Mississippi, Oklahoma say they'll move to get execution dates for inmates

Supreme Court upheld lethal injection method on Tuesday

Nation's last execution was September 25, in Texas


Many states wasted little time trying to get executions back on track
following a U.S. Supreme Court ruling upholding the use of a 3-drug lethal
cocktail.

Guard Joe Dellabruna opens a door to death row at San Quentin State Prison
in California.

Almost immediately, Virginia lifted its death penalty moratorium.
Mississippi and Oklahoma said they would seek execution dates for
convicted murderers, and other states were ready to follow.

The ruling Wednesday "should put an end to the de facto moratorium on the
death penalty caused by legal challenges to this method of execution,"
said Kent Scheidegger of the Criminal Justice Legal Foundation, a
nonprofit group that supports the death penalty.

The chief prosecutor in Houston, Kenneth Magidson, whose surrounding
Harris County sends more inmates to death row than any other, said he
would seek execution dates for the six inmates awaiting execution "in due
course."

The nation's high court voted 7-2 Wednesday to reject inmates' challenges
to the procedure in Kentucky that use three drugs to sedate, paralyze and
kill inmates. Similar methods are used by roughly 3 dozen states.

Inmates and death row advocates were frustrated that the court brushed
aside their arguments that lethal injections are unconstitutional cruel
and unusual punishment.

"It's just terrible," said Paris Powell, a convicted killer at the
Oklahoma State Prison in McAlester. He added: "It's like the air has just
been let out of a balloon. There's disbelief that the ruling came so
quickly, but it goes further than just right now. It's now official that
the death penalty is here to stay forever, really."

Lawyers for death row inmates said challenges to lethal injections would
continue in states where problems with administering the drugs are well
documented.

The nation's last execution was September 25, when a Texas inmate was put
to death by injection for raping and shooting to death a mother of 7.
They've effectively been on hold as states awaited a ruling from the high
court.

After the ruling Wednesday, Virginia Gov. Timothy M. Kaine promptly lifted
a moratorium on executions that he imposed April 1 when he stayed the
execution of Edward Nathaniel Bell, who killed a police officer.

Arizona Attorney General Terry Goddard said the U.S. Supreme Court's
ruling "affirms that the procedure used in Arizona is humane and allows us
to proceed and administer justice."

Florida Gov. Charlie Crist praised the court's ruling and said he asked
one of his lawyers to put together "a very short list" of death warrants
to consider signing. There are 388 people on Florida's death row.

"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," he said.

California Gov. Arnold Schwarzenegger said the decision supports
California's lethal-injection procedure and will allow executions to
resume. They have been on hold for 2 years because of legal challenges in
federal and state courts.

California currently has 669 convicts awaiting execution, the most in the
country, although Texas leads the way in the number of executions.

Since capital punishment was reinstated in 1976, Texas has executed 405
inmates. Virginia is 2nd with 99. 26 of the 42 U.S. inmates put to death
last year were in Texas.

Ohio Gov. Ted Strickland said he hadn't yet been able to determine the
legal ramifications of the decision. Ohio also uses a regimen to sedate,
paralyze and kill inmates, although its procedure is not identical.

"You would just think that because the methodology is quite similar that
the legal outcome would be similar as well," Strickland said. "But I just
don't want to make that assumption without having a little deeper
understanding about what they said."

Prosecutors in many states said they were studying the U.S. Supreme
Court's ruling to determine how to proceed. Others said there may not be
an overnight change.

"We're going to read it and see how it impacts us," Arkansas Attorney
General Dustin McDaniel said. "There are going to be specific issues of
law and fact in Arkansas that are going to be different from Kentucky. It
may answer all of our questions, but it may leave some others unanswered."

In some states, inmates awaiting execution have pending appeals that are
expected to take a long time to finish, meaning the ruling may have no
immediate impact.

The high court's decision may have helped Nebraska figure out how to
proceed with its executions. The state's Supreme Court ruled in February
that its only method, electrocution, was unconstitutional.

"We now have a road map for selecting a new method of execution for our
state," Attorney General Jon Bruning said Wednesday.

(source: Associated Press)

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

In a reversal, Justice Stevens calls the death penalty
'anachronistic'----Part of the Supreme Court majority that reinstated
capital punishment in the U.S. in 1976, he says it no longer serves any
purpose.


The nation's longest-serving Supreme Court justice, John Paul Stevens, on
Wednesday declared his formal opposition to capital punishment.

Stevens, 87, was part of the court majority that reinstated the death
penalty in America in 1976. But in a concurring opinion to Wednesday's
ruling that Kentucky's use of lethal injection is constitutional, Stevens
wrote that the death penalty no longer served a legitimate social
function. He is the 1st justice to openly oppose capital punishment since
Harry Blackmun in 1994.

His words came as some comfort to death penalty opponents on a day when
they suffered a setback at the hands of the justices. Within hours of the
7-2 ruling, Virginia and Florida announced their intention to lift a
moratorium on executions, and several other states were expected to follow
suit. In California, executions could begin again by the end of the year.

But Elisabeth Semel, a law professor and director of the Death Penalty
Clinic at UC Berkeley who helped bring the challenge to Kentucky's
lethal-injection procedures, said the court's opinion made it clear that
states can be forced to institute alternative lethal-injection procedures
if they can be proven to alleviate a substantial risk of severe pain to
the inmate.

That may have been one reason that Stevens, in a sense, threw up his hands
and said "enough" even as he concurred with the majority in the Kentucky
case. Stevens wrote that when the court agreed to hear the Kentucky
challenge, he "assumed that our decision would bring the debate about
lethal injection as a method of execution to a close. It now seems clear
that it will not."

Then he went further, saying the death penalty was no longer meeting any
of the societal aims the court laid out when it reinstated the sanction in
1976 after a four-year pause. "State-sanctioned killing," he said, is
becoming "more and more anachronistic."

The Chicago native, who was named to the court by President Ford in 1975,
wrote that modern, lengthy prison sentences had achieved the goal of
preventing the offender from committing further crimes and said that
researchers had yet to prove to his satisfaction that the death penalty
deterred others from committing crimes.

That left retribution as the sole rationale for capital punishment, and
there Stevens found a paradox. Noting that the court is now working to
make executions as painless as possible, he wrote: "By requiring that an
execution be relatively painless, we necessarily protect the inmate from
enduring any punishment that is comparable to the suffering inflicted on
his victim."

Justice Antonin Scalia wrote a special concurrence to criticize Stevens,
saying that his reversal on the issue was "astounding" and that he was
substituting his own views for those of state legislatures elected by the
people.

"It is Justice Stevens' experience that reigns over all," he wrote
mockingly.

Notwithstanding Stevens' stance, states were gearing up to put a pair of
killers to death. Florida officials said that the high court's decision
paved the way for the execution of Mark Dean Schwab, convicted of raping
and killing an 11-year-old boy in 1991.

And in Virginia, Gov. Tim Kaine cleared the way for the execution of
Edward Bell, who killed a police officer in 1999. His execution was
scheduled for April 8, but Kaine had postponed it until July in advance of
the Supreme Court ruling.

(source: Los Angeles Times)

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

'The pointless and needless extinction of life'----USA should now look
beyond lethal injection issue to wider death penalty questions


17 April 2008 AI Index: AMR 51/031/2008

Yesterday's US Supreme Court ruling in Baze v. Rees upholding the
constitutionality of Kentucky's lethal injection procedures will in all
likelihood be followed by moves in various US jurisdictions to resume
executions, although the ruling is unlikely to stop litigation on this
issue.

Executions in the USA have been suspended since late September 2007 as
states waited for the Supreme Court's decision. A majority of the 36 death
penalty states, and the federal government, use the same 3-drug
combination as Kentucky to anesthetize, paralyze and kill the condemned
prisoner. Officials in a number of states, including Florida, Georgia,
Arizona and Ohio, have already suggested that the Baze decision should
clear the way to a resumption of executions in their jurisdictions, and
the likelihood of execution dates being set soon in states such as Texas
and Alabama is high.

Amnesty International opposes the death penalty in all cases,
unconditionally, regardless of the method chosen to kill the condemned
prisoner. There is no such thing as a humane, fair, reliable or useful
death penalty system.

Chief Justice Roberts indicated that in future cases a stay of execution
on the lethal injection issue would likely only be granted if "the
condemned prisoner establishes that the State's lethal injection protocol
creates a demonstrated risk of severe pain. He must show that the risk is
substantial when compared to the known and available alternatives." A
state with a lethal injection protocol "substantially similar" to
Kentucky's "would not create a risk that meets this standard". Justice
Stevens, in an opinion concurring in the judgment, nevertheless wrote:

"I assumed that our decision would bring the debate about lethal injection
as a method of execution to a close. It now seems clear that it will not.
The question whether a similar 3 drug protocol may be used in other States
remains open, and may well be answered differently in a future case on the
basis of a more complete record. Instead of ending the controversy, I am
now convinced that this case will generate debate not only about the
constitutionality of the 3-drug protocol, and specifically about the
justification for the use of the paralytic agent, pancuronium bromide, but
also about the justification for the death penalty itself."

Justice Stevens wrote that his experience has led him to 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". He suggested that the current decisions to retain the death
penalty taken by state legislatures, US Congress, and the Supreme Court
itself "are the product of habit and inattention rather than an acceptable
deliberative process that weighs the costs and risks of administering that
penalty against its identifiable benefits, and rest in part on a faulty
assumption about the retributive force of the death penalty." Over the
past three decades, he continued, the state purposes of the death penalty
- incapacitation, deterrence and retribution - have all been called into
question. On deterrence, for example, Justice Stevens wrote that "despite
30 years of empirical research in the area, there remains no reliable
statistical evidence that capital punishment in fact deters potential
offenders".

Justice Stevens pointed to other aspects of the application of the death
penalty that concern him, including "rules that deprive the defendant of a
trial by jurors representing a fair cross section of the community". The
procedures for obtaining a jury in a death penalty case, he wrote, have
the "purpose and effect of obtaining a jury that is biased in favour of
conviction". He also raised the risk of "discriminatory application of the
death penalty", which the Supreme Court has allowed "to continue to play
an unacceptable role in capital cases". On the risk of wrongful conviction
in capital cases ("the irrevocable nature of the consequences is of
decisive importance to me"), Justice Stevens pointed out that the risk of
executing the innocent "can be entirely eliminated" by abolishing the
death penalty.

Justice Breyer also pointed to the wider concerns about the death penalty,
beyond the issue of any risks associated with lethal injections:

"The death penalty itself, of course, brings with it serious risks, for
example, risks of executing the wrong person, risks that unwarranted
animus (in respect, e.g., to the race of victims), may play a role, risks
that those convicted will find themselves on death row for many years,
perhaps decades, to come But the lawfulness of the death penalty is not
before us."

Chief Justice Roberts said that "nothing in our opinion undermines or
remotely addresses the validity of capital punishment". The comments of
Justices Stevens and Breyer nevertheless serve to bring attention back to
the bigger picture. That bigger picture is this: No amount of examining or
tinkering with the machinery of death can free the death penalty of its
inherent flaws. A clear majority of countries have given up trying, and
the USA should now look to do the same.

Amnesty International emphasizes that to end the death penalty is to
abandon a destructive, diversionary and divisive public policy that is not
consistent with widely held values. A recent indicator of this was the
landmark UN General Assembly resolution in late 2007 calling for a
worldwide moratorium on the death penalty. To use the words of Justice
Stevens in the Baze opinion: "State-sanctioned killing is becoming more
and more anachronistic".

The death penalty not only runs the risk of irrevocable error, it is also
costly - to the public purse, as well as in social and psychological
terms. It has not been proved to have a special deterrent effect. It tends
to be applied discriminatorily on grounds of race and class. It denies the
possibility of reconciliation and rehabilitation. It promotes simplistic
responses to complex human problems, rather than pursuing explanations
that could inform positive strategies. It prolongs the suffering of the
murder victim's family, and extends that suffering to the loved ones of
the condemned prisoner. It diverts resources that could be better used to
work against violent crime and assist those affected by it. It is a
symptom of a culture of violence, not a solution to it. It is an affront
to human dignity. It should be abolished.

For further information, see

USA: The experiment that failed. A reflection on 30 years of executions,
AI Index: AMR 51/011/2007,
http://www.amnesty.org/en/library/info/AMR51/011/2007/en.

USA: Breaking a lethal habit: A look back at the death penalty in 2007, AI
Index: AMR 51/197/2007,
http://www.amnesty.org/en/library/info/AMR51/197/2007/en.

(source: Amnesty International)

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

The Supreme Court Brings Back the Death Penalty


With a 7-2 ruling ending a moratorium on state-sanctioned killing, states
across the country are gearing up to resume executions.

The Supreme Court just made a decision that will send prisoners across the
country to their deaths.

In a 7 to 2 ruling, it upheld lethal injection as currently carried out as
Constitutional, ending a de-facto moratorium on state-sanctioned murder.

Executions in the United States had been on hold since last September,
when the Court decided to take on the case of Baze v. Reese. At stake was
the question of whether Kentucky's lethal injection protocol violates the
8th Amendment prohibition of "cruel and unusual punishment." The
three-drug killing technique or some version of it -- a paralytic, a
barbiturate, and a dose of potassium chloride -- is used in 35 out of 36
death penalty states. (Nebraska, whose sole method of execution used to be
electrocution, ruled the electric chair unconstitutional this past
February.) As states froze their execution machinery to await the
justices' ruling, not a single execution was carried out for seven months.
Last-minute stays of execution aside, it was a glimpse into what the
United States might look like without the death penalty.

Baze represented a critical development in death penalty litigation, the
first time the Court has considered a specific method of execution since
it upheld the firing squad in 1878. Ever since the Supreme Court's
last-minute intervention in the case of Florida death row prisoner
Clarence Hill -- he was strapped onto a gurney with intravenous lines in
his arms -- in January 2006, the stage had been set for a showdown on
lethal injection. When the Court ruled later that year that prisoners
could appeal their death sentences based on the possibility that lethal
injection is cruel and unusual, a wave of appeals swept the country.

Now, those prisoners have lost significant legal footing and with it, very
possibly, the right to live. "While the opinion appeared to leave open a
chance that some further challenges could be made to the use of lethal
drugs under a specific procedure in another state," explained Lyle
Denniston at SCOTUSblog, "...The opinion also appeared to mean that the
three drugs now used in all of those jurisdictions do not, alone or in
combination, fail the Court's new standard."

In other words, the country's preferred execution method is now insulated
by a legal precedent.

This is a serious blow to death penalty opponents who hoped that disabling
the death machinery would lead to abolishing it. It is also, in many ways,
the result of a frustrating failure of legal strategy. The attorneys who
argued Baze did so on very narrow grounds, contending that Kentucky's
lethal injection protocol is broken, but not beyond repair. "One needs a
person trained in monitoring anesthetic death to participate in the
process," defense attorney Donald Verrilli suggested, not only encouraging
the controversial notion that medical professionals have a role in
carrying out executions, but also encouraging the Court to treat botched
executions as an aberration; freak accidents that rarely occur. "The Court
has held that an isolated mishap alone does not violate the Eighth
Amendment," wrote Chief Justice John Roberts in the decision. But states
from California to Florida have had lethal injections go horribly wrong in
recent years; with states often secretive about their execution procedures
-- and many not keeping data on file about them -- how "isolated" these
incidents are is largely unknown.

Lethal injection is often described as a "3-drug cocktail." The 1st drug
is the barbiturate sodium thiopental; the 2nd, a paralytic called
pancuronium bromide, and the 3rd, potassium chloride, which stops the
heart. The technique has been favored by death penalty supporters who find
appeal in its medical veneer. In theory, if the drugs are administered
correctly, the victim will die quickly and painlessly. But in reality,
executioners, contrary to the assumption of many, usually have little or
no medical training. If they wrongly administer the first drug, the result
can be grisly.

Take the case of Joseph A. Clark, a death row prisoner in Ohio. On the day
of his execution in May 2006, it took the execution team 22 minutes to
find a vein -- a not uncommon problem. Shortly after the catheter was
finally inserted, Clark's vein collapsed and his arm began to swell, at
which point, he lifted his head. "He said 'It don't work, it don't work,
it don't work, it ain't working,' about five times," one witness later
described. At that point, the gurney was concealed by curtains. Thirty
minutes later, there was "moaning, crying out and guttural noises." An
hour and a half after the start of the execution, Clark was dead.

Then there are instances where the paralytic drug can make it impossible
to tell if something has gone wrong. Since a paralyzed prisoner cannot cry
out or move if in pain, clues that he or she suffered only come with the
autopsy. In the case of Florida prisoner Angel Diaz in December 2006, he
started to move following the 1st drug, "squinting and grimacing as he
tried to mouth words," according to the Death Penalty Information Center.
"A second dose was then administered, and 34 minutes passed before Mr.
Diaz was declared dead. At first a spokesperson for the Florida Department
of Corrections claimed that this was because Mr. Diaz had some sort of
liver disease. After performing an autopsy, the Medical Examiner, Dr.
William Hamilton, stated that Mr. Diaz's liver was undamaged, but that the
needle had gone through Mr. Diaz's vein and out the other side, so the
deadly chemicals were injected into soft tissue, rather than the vein."
Angel Diaz was quite literally tortured to death.

The cruel irony is that the paralyzing agent is totally pointless; serving
no purpose aside from masking the effects of the lethal chemicals on a
prisoner's body. In fact, veterinarians long ago decided not to use it for
the that very reason. But death row prisoners, despite being human beings,
do not inspire the humane treatment that animals do -- and twisted logic
is offered to keep the paralyzing drug in place. "The purpose it serves,"
argued Roy Englert, the attorney representing Kentucky before the Court,
"is the purpose of dignifying the process for the benefit of the inmate
and for the benefit of the witnesses." In reality, it is used to "dignify
the process" for the benefit of the state. It makes murder look a little
less murderous.

For legal experts, the Baze decision is not a major surprise and in fact,
contains some interesting language about the future of death penalty
litigation. ''I am now convinced that this case will generate debate not
only about the constitutionality of the 3-drug protocol, and specifically
about the justification for the use of the paralytic agent, pancuronium
bromide, but also about the justification for the death penalty itself,''
wrote Justice Stevens. The variety of opinions expressed by the justices
-- a "plurality" in legal terms -- in the rather glib interpretation of
one expert blogger, "provides a little something for everyone."
Unfortunately, for prisoners granted a temporary reprieve by the
seven-month-long de facto moratorium, what the decision provides is death.

As they have since the return of the American death penalty in 1976,
defense attorneys will find new legal arguments to try to spare their
clients' lives. But how many prisoners will die before another opportunity
arrives like the one presented by Baze? How many of them are on death row
because they are poor or black? How many of them are innocent?

As Marlene Martin, executive director of the Campaign to End the Death
Penalty says, "I think of people like Troy Davis, Rodney Reed and Timothy
McKinney -- all on death row, all African American, all poor and almost
all surely innocent. What does this decision mean for them and the
countless others like them?" As executions resume in a country with more
than 3,000 people on death row -- whose names are unknown to the vast
majority of Americans -- it is a question not enough people are willing to
ask.

(source: AlterNet)

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

Decision May Reopen Death Chamber


A national drive to halt the death penalty met defeat at the Supreme Court
on Wednesday when the justices ruled that lethal injections, if properly
administered, are a humane means of executing a condemned prisoner.

With a 7-2 vote, the court rejected a constitutional attack on the main
method of carrying out the death penalty across America. Its ruling
cleared the way for executions to resume after a seven-month delay.

Since October, officials and judges in several states, including Florida,
have put executions on hold while awaiting the outcome of the Kentucky
case decided Wednesday.

The court's opinion by Chief Justice John Roberts confirmed there is
strong support for the death penalty among the justices and an
unwillingness to tolerate endless delay.

"We begin with the principle ... that capital punishment is
constitutional. It necessarily follows that there must be a means of
carrying it out," Roberts wrote.

"Some risk of pain is inherent in any method of execution - no matter how
humane - if only from the prospect of error in following the required
procedure."

Roberts said the court would not allow a theoretical risk that a future
execution would be botched to stand in the way of carrying out the death
penalty.

He also set a high bar for future challenges to carrying out an execution.

To win a halt to an execution, defense lawyers must show there is a
"substantial risk" that the condemned prisoner will suffer "severe pain,"
the chief justice said.

"A state with a lethal injection protocol substantially similar to the
protocol we upheld today would not create a risk that meets this
standard," he said.

Agreeing with Roberts, Justice Samuel Alito added a note to say the court
should not allow "litigation gridlock" to "produce a de facto ban on
capital punishment." Justice Anthony Kennedy also agreed with Roberts.

Justices Clarence Thomas and Antonin Scalia said they would go further and
reject all challenges to an execution method unless it is "deliberately
designed to inflict pain."

Officials Move Quickly

Florida Attorney General Bill McCollum asked the high court to allow the
state to go ahead with the execution of child killer Mark Dean Schwab
because Florida's method of execution is nearly identical to the method
upheld in the Kentucky case.

The court had stopped the Schwab execution, and McCollum filed paperwork
Wednesday afternoon seeking to have the order lifted.

Also, Gov. Charlie Crist asked for a "very short list" of the worst death
row inmates so he can sign his next death warrant. There are 388 people on
death row.

Despite the lopsided outcome in the Supreme Court case, a deep split
remains on capital punishment among the justices. Death penalty cases that
come before the court often are decided by a 5-4 vote.

Justice John Paul Stevens, who will be 88 years old Sunday, said his 3
decades on the court have convinced him that the death penalty should be
ended.

Nonetheless, Stevens voted with Roberts to reject the challenge to lethal
injections, since there was no evidence that Kentucky's approach is badly
flawed. Justice Stephen Breyer agreed for much the same reason.

Giving Way To 'Humane Methods'

Justices Ruth Bader Ginsburg and David Souter stood alone in dissent. They
said they would maintain the hold on executions because Kentucky "lacks
the basic safeguards" to ensure the inmate dies a painless death.

The argument against the 3-drug protocol used in executions is that if the
initial anesthetic does not take hold, the other 2 drugs can cause
excruciating pain. One of those drugs, a paralytic, would render the
prisoner unable to express his discomfort.

Last year, defense lawyers appealed on behalf of 2 Kentucky inmates and
argued that the court should say it is unconstitutional "cruel and unusual
punishment" to subject prisoners to an "unnecessary risk" of pain. Death
penalty foes were cheered in the fall when the court agreed to hear this
challenge.

Taking a longer view, Roberts noted that the Supreme Court has never
struck down an execution method as unconstitutional. Nonetheless, states
have made steady progress in finding better ways to execute prisoners, he
said.

"The firing squad, hanging, the electric chair and the gas chamber have
each in turn given way to more humane methods, culminating in today's
consensus on lethal injections," Roberts said.

Mark Elliott, executive director of Floridians for Alternatives to the
Death Penalty, said the court had sidestepped the issue of whether the
death penalty is just and proper.

"The Supreme Court addressed the method but not the madness," Elliott
said. "There's no right way to do the wrong thing."

(source: Los Angeles Times)

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

Supreme Court Ruling Puts U.S. on Wrong


Campaign to End the Death Penalty: Supreme Court Ruling on the Death
Penalty Puts the United States on the Wrong Side of History

The ruling of the U.S. Supreme Court to uphold the Kentucky lethal
injection protocol, likely re-starting executions, makes the United States
an international pariah, the Campaign to End the Death Penalty (CEDP) said
today.

"This ruling puts the United States back in dubious company. China,
Vietnam, Iran and the United States carry out the vast majority of the
world's executions," pointed out Marlene Martin, National Director of the
CEDP. "If and when states re-start the execution machine, we will be going
backwards as a society. The death penalty is a barbaric relic of the past,
and the Supreme Court is on the wrong side of history."

Today's ruling in Baze v. Rees overturns the trend of the U.S. Supreme
Court to limit the scope of the death penalty. In 2002, the court declared
the execution of the mentally retarded unconstitutional, and in 2005, it
banned the execution of juveniles, citing "evolving standards of decency."
States, too, have bolstered this trend, as New Jersey became the 1st state
to abolish the death penalty legislatively last December. Internationally,
the U.S. is the only Western industrialized country with a death penalty.
The United Nations General Assembly, reflecting worldwide opinion, passed
a resolution against capital punishment last year.

Justice John Paul Stevens issued a separate opinion in Baze v. Rees,
asserting that decisions by state legislatures, Congress and the Supreme
Court itself to preserve the death penalty were not the "product ofSan
acceptable deliberative process that weighs the costs and risks" of the
death penalty. Martin agrees. "128 men and women have walked off death row
after wasting years of their lives in prison for crimes they did not
commit. The ruling of the Supreme Court means that more men Sandra Reed, a
Board member of the CEDP, says her son Rodney is on death row for a crime
he did not commit. She maintains that her sons case is an example of why
the justice system is unfit to re-start executions. "I am from that sour
belly of the beast in Texas. In 1998, my son was tried by an all-white
jury and wrongfully convicted for a crime he did not commit. Rodney's
lawyers did nothing for him. The Supreme Court is supposed to be on the
side of justice. Instead, they want to stand by while the State of Texas
kills Rodney."

Baze v. Rees centered on a constitutional challenge to the 3-drug protocol
used in most states to carry out lethal injections. Attorneys for death
row inmates argued that the procedure violates the eighth amendment ban on
cruel and unusual punishment, as the 1st drug administered often fails to
sedate death row prisoners, ensuring that they suffer excruciating pain as
the 2nd and 3rd drugs paralyze them, then stop their heart. In April 2005,
the British medical journal The Lancet published a report, finding "that
in 43 of the 49 executed prisoners studied the anesthetic administered
during lethal injection was lower than required for surgery. In 43 % of
cases, drug levels were consistent with awareness."

"The Supreme Court today has declared today that torturing someone to
death is not cruel and unusual punishment. But no matter how you mix the
chemicals, the death penalty is still cruel. Its cruel that it punishes
the poor; it's cruel that it targets African-Americans and Latinos; and
it's cruel that it condemns the innocent to die," said Martin. "The death
penalty is wrong, and there's just no right way to do the wrong thing."

Exonerated death row prisoners, activists and prisoners' family members
are available for interview.

(source: Campaign to End the Death Penalty)

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

Challenges Remain for Lethal Injection


Executions in Texas, Alabama and other Southern states with large death
rows are likely to resume shortly in the wake of the Supreme Court's
decision Wednesday upholding Kentuckys method of putting condemned
prisoners to death.

But the fractured decision may actually slow executions elsewhere, legal
experts said, as lawyers for death row inmates undertake fresh challenges
based on its newly announced legal standards.

"The decision will have the effect of widening the divide between
executing states and symbolic states, states that have the death penalty
on the books but rarely carry out executions," said Jordan M. Steiker, a
law professor at the University of Texas.

George H. Kendall, a lawyer with Holland & Knight in New York who is an
authority on capital litigation, said the effect of the Kentucky decision,
Baze v. Rees, "is going to vary greatly."

"I bet you by this time next week there will be execution dates in Texas
and Alabama," Mr. Kendall said. "But nothing is going to happen very
quickly in California at all."

Supporters of the death penalty welcomed the decision, though they
suggested that it could have been more definitive.

"It's true that they didn't completely slam the door and lock it," said
Kent Scheidegger, the legal director of the Criminal Justice Legal
Foundation, which advocates strong criminal penalties. "But I expect that
the de facto moratorium will end this year, and in most states executions
will resume."

Opponents of the death penalty said the decision was little more than a
road map for more litigation. "I think it opens the door," said Elisabeth
A. Semel, the director of the Death Penalty Clinic at the University of
California, Berkeley.

Lawyers representing death row inmates said the plurality opinion
presented them two challenges. One is to distinguish their states
procedures from that used in Kentucky. The other is to overcome the high
evidentiary bar Chief Justice John G. Roberts Jr. set for all challenges
to methods of execution.

In that plurality opinion, the chief justice said states with lethal
injection protocols "substantially similar" to that used in Kentucky would
be immune from challenges under the court's new standard, which requires
death row inmates to prove not only a demonstrated risk of severe pain but
also that the risk is substantial when compared with available
alternatives.

"Substantially similar?" said Deborah W. Denno, a law professor at Fordham
University whose work was cited by the court. "I'm not sure what that is
or what that would constitute."

35 states and the federal government use lethal injections in executions,
most if not all of them relying on a combination of 3 chemicals: a
sedative, a paralyzing agent and a drug that stops the heart. If the
chemicals are administered properly, all concerned agree, they produce a
humane death. If the 1st is administered improperly, the 2nd and 3rd
chemicals can give rise to suffocation and intense pain.

Relatively little is known about Kentuckys procedures for administering
the chemicals, Professor Denno said, adding that other states had made
public much more evidence concerning the risks involved.

Justices on the court's left and right wings said Chief Justice Roberts's
opinion was an invitation to a fresh round of litigation.

"The question of whether a similar three-drug protocol may be used in
other states remains open, and may well be answered differently in a
future case on the basis of a more complete record," Justice John Paul
Stevens wrote.

Justice Clarence Thomas said that "today's decision is sure to engender
more litigation," because "we have left the states with nothing resembling
a bright-line rule."

Professor Semel said the fractured decision, the relatively sparse
information available about practices in Kentucky and the new standard
announced by the court would produce fertile ground for additional
litigation, particularly in states where flaws in the administration of
lethal injections were documented.

"If it looks like California or it looks like Missouri or it looks like
Tennessee," she said, "then it's not a substantially similar protocol to
the one in Kentucky."

Indeed, Professor Denno said, "attorneys are in pretty good shape for
further litigation." In particular, she said, they may be able to demand
that state corrections departments provide them more information about
execution procedures.

Justice Stevens urged states to consider abandoning 1 of the 3 chemicals,
the paralyzing drug that would leave an unsedated inmate conscious but
unable to move, breathe or cry out.

But no state has so far abandoned the 3-chemical combination. And it is
not clear whether Baze will make changes more or less likely.

"The court is giving different messages," Professor Denno said. On one
hand, Chief Justice Roberts suggested that emulating the Kentucky protocol
might provide states a safe harbor. On the other, Justice Stevens, though
concurring in the courts judgment, said the paralyzing drug was a
litigation magnet.

States that have considered moving to a simpler protocol may have been
waiting, some legal experts said, until Baze was decided, so as not to
prejudice Kentucky's chances before the court.

More than 40 stays have been issued in lethal-injection cases by various
courts, 17 of them since the Supreme Court agreed in September to hear
Baze, according to the Death Penalty Information Center. Those stays will
presumably now be dissolved.

In addition, officials in at least 4 states  Virginia, Texas, Florida and
Oklahoma  moved on Wednesday to begin setting new execution dates after
the informal moratorium of the last 7 months.

But the litigation will not stop, Professor Steiker said.

"We will end up largely where we were before Baze," he said. "It has set
us on a course in which there will be continuing challenges, efforts to
document botched executions and efforts to continue to explore alternative
protocols."

(source: New York Times)

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

The Supreme Court Fine-Tunes Pain


The Supreme Court's regrettable ruling upholding Kentucky's use of lethal
injection is a reminder of why government should get out of the business
of executing prisoners. Rather than producing a crisp decision upholding
the constitutionality of lethal injection, the court broke down into
warring opinions debating the ugly question of how much unnecessary pain
the state may impose. Most compelling were the dissenters, which wanted to
know more about whether Kentucky was torturing inmates needlessly, and
Justice John Paul Stevens's challenge to capital punishment in all forms.

Kentucky is 1 of at least 30 states that execute people by lethal
injection of a three-drug cocktail. This method was meant to be humane,
but it can cause inmates to feel excruciating pain. Kentucky lacks proper
safeguards, including adequate training, to avoid needless suffering.

Chief Justice John Roberts, writing for himself and 2 other justices,
found that Kentuckys procedures do not violate the Eighth Amendment ban on
cruel and unusual punishment. Even if they inflict great pain, he said,
the inmates challenging them failed to show that the risk of harm was
"objectively intolerable." ( 7 justices concurred, to varying degrees.)
Justices Clarence Thomas and Antonin Scalia laid out an even crueler
standard  unless an execution is "deliberately designed to inflict pain"
it does not violate the Eighth Amendment. That would allow a lot of
grossly negligent infliction of agony.

In dissent, Justice Ruth Bader Ginsburg, writing for herself and Justice
David Souter, emphasized that Kentucky does not take steps that other
states do to help ensure that inmates do not suffer. She argued that the
case should be sent back to a lower court to determine if Kentucky should
use such safeguards.

Justice Stevens, in a welcome surprise, said that he had come to the
conclusion that the death penalty carries such high risks of error and
discrimination, while doing so little good, that it is unconstitutional.
He voted to uphold Kentucky's procedures because he believed precedent
required it, but he said it is time for the court and legislatures to take
a hard look at whether the death penaltys substantial costs outweigh its
benefits.

Wednesday's ruling clears the way for states that had put their executions
on hold to resume them. Lawyers for death-row inmates insist, however,
that the legal test the Roberts decision used gives them a basis for more
challenges to lethal injection. That means more fights over how much
needless pain is too much.

The better course would be for the nation to undertake Justice Stevens's
hard look at capital punishment  and leave it behind.

(source: Editorial, New York Times)

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

How justices arrived at death penalty ruling


ON DEATH ROW

Total number of death-row inmates, followed by number added since fall
moratorium. California 669-- 4


Florida 388 --11

Texas 357 -- 5

Pennsylvania 228 -- 1

Alabama 201 -- 4

[source: Death Penalty Information Center and USA TODAY research]

The moratorium on executions is likely to end this spring at such sites as
the Southern Ohio Correctional Facility in Lucasville.

A moratorium on the death penalty that began when the Supreme Court agreed
to review the lethal injection method has turned out not to be a pivotal
moment in the justices' ongoing struggle with capital punishment.

The halt in executions that started in late September is likely to end by
late spring as states restart their processes for executing condemned
murderers.

Yet the prospects for success for those who challenge lethal injections
may improve in the long run. If, as executions resume, the challengers can
generate a record of botched injections and document other problems that
they insist exist, they would have a better case than the one the justices
decided Wednesday from Kentucky.

Unlike in other states where the death penalty is carried out more often,
Kentucky had little history of problems with lethal injection. It is also
likely that the justices' splintered rationale  which played out in 7
opinions and a total of 92 pages  will lead to future cases testing the
death penalty.

"We cannot hold our breath for this court to stay executions again,
certainly not in the wake of this case," says Elisabeth Semel, director of
the Death Penalty Clinic at the University of California, Berkeley, law
school. "But if we can gain traction in other states and develop records
about how executions are actually carried out, it is likely we could meet
the court's test" for when an execution method is unconstitutional.

2 convicted murderers in Kentucky had claimed that the widely used 3-drug
lethal injection method constitutes cruel and unusual punishment under the
Eighth Amendment.

Most of the 36 states that permit capital punishment use the same mix:
sodium thiopental (an anesthetic), pancuronium bromide (a paralyzing
agent) and potassium chloride (which stops the heart). The prisoners said
the second drug can mask signs of distress and create a risk that inmates
suffer excruciating pain before death.

Chief Justice John Roberts, writing the leading opinion for the court,
said the inmates had failed to show that the way the drugs are
administered could be unconstitutionally cruel. Roberts noted that the
Kentucky officials participate in at least 10 practice runs a year and
have safeguards to ensure that the 2nd drug is effective.

Kentucky, however, has held only one actual execution using the challenged
protocol: Eddie Lee Harperin 1999. So the overall record in the case was
thin.

Setting a threshold for pain

Semel says that in other states, like Missouri and California, more
problems have been documented.

Under the standard the majority effectively imposed in Baze v. Rees,
prisoners challenging injection procedures as unconstitutional must show a
"substantial risk" of harm to a prisoner.

Prisoners who claim that an alternative method would be better would have
to show it significantly reduced the risk of severe pain, Roberts said.

The chief justice's opinion was joined by Justices Anthony Kennedy and
Samuel Alito. Justices John Paul Stevens and Stephen Breyer concurred in
the bottom-line judgment against the two Kentucky prisoners but did not
adopt Roberts' rationale.

Justices Clarence Thomas and Antonin Scalia also voted against the two
prisoners. They wrote separately to say an execution method would violate
the Eighth Amendment only if it were deliberately designed to inflict
pain. That test would make it even harder for challengers to succeed than
Roberts' approach.

In their opinions, Roberts, Kennedy, Alito, Thomas and Scalia also
signaled that they want to curb litigation and are ready for executions
nationwide to resume. That majority showed little interest in interfering
with what Roberts emphasized was the right of states to carry out the
ultimate punishment.

Roberts said states with methods similar to the Kentucky protocol  the
prevailing approach  should be allowed to go forward. "A stay of execution
may not be granted on grounds such as those asserted here unless the
condemned prisoner establishes that the state's lethal injection protocol
creates a demonstrated risk of severe pain," he wrote.

Stepping back and looking at the larger controversy, Roberts said,
"Reasonable people of good faith disagree on the morality and efficacy of
capital punishment, and for many who oppose it, no method of execution
would ever be acceptable."

"This court has ruled that capital punishment is not prohibited under our
Constitution," he added, "and that the states may enact laws specifying
that sanction." Roberts said that power would mean little if states could
not carry it out.

Stevens takes exception

Only Stevens, the court's eldest and longest-serving member, directly
addressed the constitutionality of capital punishment. Stevens, who turns
88 on Sunday, concluded for the 1st time in his 33-year tenure that the
death penalty should be abolished.

Yet he said he was bound by precedent allowing the death penalty and that,
under existing standards, he was not convinced that Kentucky's protocol
was flawed.

Justices Ruth Bader Ginsburg and David Souter, who dissented in the
Kentucky case, have problems with the way capital punishment is imposed.
Yet, Stevens is the only one who apparently would end it completely. He
said he had come to believe "the death penalty represents the pointless
and needless extinction of life with only marginal contributions to any
discernible social or public purposes."

Ginsburg, joined by Souter, wrote that Kentucky's protocol lacked "basic
safeguards used by other states to confirm that an inmate is unconscious
before injection of the 2nd and 3rd drugs."

Some states, notably Florida, have studied and revised their lethal
injection procedures.

George Kendall, a defendants' rights advocate, predicted that despite the
court's endorsement of the Kentucky method, other states would continue to
scrutinize lethal-injection methods.

Said Kendall, "When the court focuses on something, it causes states to
seriously look at things."

(source: USA Today)

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

Recent decisions have narrowed use of death penalty


In a landmark 1972 decision, the Supreme Court, in Furman vs. Georgia,
declared capital punishment in the United States unconstitutional, saying
that it was being applied in a racially discriminatory manner. But 4 years
later, the court reinstated the death penalty after reforms that attempted
to ensure that death sentences were applied in a more race-neutral manner.

Since then, the constitutionality of the death penalty itself has not been
an issue. Instead, the court has found itself in a protracted battle over
the appeals process. The advancement in DNA evidence and subsequent
exonerations nationwide raised the stakes.

In recent years, however, the court has signaled a willingness to narrow
the application of the sanction. In 2002, in a 6-3 decision, the court
held that states could not execute the mentally retarded. Then in 2005, in
a 5-4 decision, the court ruled that states could not execute a prisoner
if the crime was committed while the person was a minor.

On Wednesday the court's most senior member, Justice John Paul Stevens,
warned that the larger issues at the heart of the capital punishment
debate are not going to go away. Critics of the death penalty maintain
that it is still applied in a racially discriminatory way and that it
costs more to fight a lengthy appeal than to incarcerate a prisoner for
life. Supporters say the extended appeals process is needless and draws
out the trauma felt by a victim's family.

(source: Opinion, James Oliphant; Chicago Tribune)