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Friday, September 28, 2007

Courts - Kentucky lethal injection case granted cert Tuesday by SCOTUS [Updated]

James R. Carroll of the Louisville Courier Journal reported Sept. 25th in a story that began:

The Supreme Court agreed yesterday to hear a Kentucky case that challenges the constitutionality of the mix of drugs used in lethal injections.

This will be the first time the high court will consider whether such injections violate the Eighth Amendment of the Constitution prohibiting cruel and unusual punishment.

The decision to hear the case is likely to have an immediate impact beyond Kentucky, said Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit organization based in Washington.

"Virtually all executions are by lethal injection," Dieter said. "It will at least hold up all executions in the country for a time and may require broad revisions in the law."

Today the NY Times reports:
In a fresh sign that the use of lethal injection in capital punishment faces an uncertain future, the Supreme Court issued an unusual last-minute reprieve for a death-row inmate in Texas late last night.

Although the court gave no reason for its decision, the inmate, Carlton Turner Jr., had appealed to the court after it agreed on Tuesday to consider the constitutionality of lethal injection, the most commonly used method of execution in the United States. The decision suggests that until it issues a ruling on lethal injection, the court may be receptive to requests to delay such executions, at least for defendants whose cases raise no procedural issues. * * *

Earlier in the day, another rare stay of an execution came in Alabama, where Gov. Bob Riley said the state would not execute an inmate named Tommy Arthur while it came up with a new formula for lethal injection. State officials said they wanted to make sure prisoners were completely unconscious before they were killed.

The full effect of the Supreme Court’s decision is not yet known, but it may interrupt what appears to be emerging as a patchwork, state-by-state response to its decision Tuesday to look at whether lethal injection causes unnecessary suffering.

Some states, even ardent pro-death penalty ones like Alabama, are slowing down. Others, like Texas, had been cruising at full speed; the state executed a prisoner a few hours after the court’s decision on Tuesday and was planning to proceed with its 27th execution of the year last night when the Court intervened. Eleven states have stopped lethal injections altogether, as litigation proceeds.

Regular ILB readers may recall this May 1, 2007 entry headed "Judge Young denies challenge to Indiana's lethal-injection procedures," perhaps worth rereading.

Three Indiana Death Row inmates had joined the request for a preliminary injunction. Subsequently, David Leon Woods and Michael A. Lambert have been executed by lethal injection. Norman Timberlake, who filed the original suit last December in U.S. District Court in Indianapolis, remains on Death Row. For more, see this list of ILB entries.

[Updated 9/29/07] "Lethal Injection Under Scrutiny" is the heading of a comprehensive story by the AP's Ron Word.

"Texas Planning New Execution Despite Ruling" is the headline to a story in today's NY Times by Ralph Blumenthal and Linda Greenhouse that begins:

HOUSTON, Sept. 28 — A day after the United States Supreme Court halted an execution in Texas at the last minute, Texas officials made clear on Friday that they would nonetheless proceed with more executions in coming months, including one next week.

Though several other states are halting lethal injections until it is clear whether they are constitutional, Texas is taking a different course, risking a confrontation with the court.

“The Supreme Court’s decision to stay convicted murderer Carlton Turner’s execution will not necessarily result in an abrupt halt to Texas executions,” said Jerry Strickland, a spokesman for Attorney General Greg Abbott of Texas. “State and federal courts will continue to address each scheduled execution on a case-by-case basis.”

Shortly before midnight on Thursday, the Supreme Court stayed the execution of Mr. Turner, who had been scheduled to become the 26th Texas inmate executed this year by lethal injection in Huntsville. * * *

Several legal experts said the Supreme Court reprieve would be seen by most states as a signal to halt all executions until the court determined, probably some time next year, whether the current chemical formulation used for lethal injections amounts to cruel and unusual punishment barred by the Eighth Amendment.

Eleven states had halted executions for that reason. On Thursday, Alabama stayed an execution for 45 days to come up with a new formula.

“There is a momentum quality to this,” said Douglas A. Berman, a law professor at Ohio State University who has a blog, Sentencing Law and Policy. “Not only the Supreme Court granting the stay, but also the Alabama governor doing a reprieve that is likely to lead to other states with executions on the horizon waiting to see what the Supreme Court does. I’ll be surprised if many, and arguably if any states other than Texas, go through with executions this year.”

On his blog on Friday, Professor Berman predicted that there would be few if any executions in the country for the next 9 to 18 months, while the court deliberates and, later, as lower courts parse the meaning of its eventual ruling.

Texas, which has a history of confrontations with the Supreme Court over its prerogatives in criminal justice, does not appear interested in waiting. That forces lawyers for condemned prisoners to appeal each case as high as the Supreme Court.

See this entry today from Sentencing Law Blog, headed "Everyone trying to figure out if there is now an execution moratorium."

Posted by Marcia Oddi on September 28, 2007 02:55 PM
Posted to Courts in general