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

[Rick Halperin]

Nov. 2


USA:

Opinion Is The Government Finally Scrutinizing The Death Penalty?


The Supreme Court's focus on the administration of death by lethal
injection could expose the plethora of problems that come with the death
penalty.

That's the hope of Russ Feingold who's using the Court's stay of execution
for a Mississippi prisoner to re-introduce his Federal Death Penalty
Abolition Act. The Wisconsin Democrat fired off a statement yesterday
declaring that, "This de facto moratorium on executions by lethal
injection gives us a chance to recognize just how deeply flawed the
implementation of capital punishment in this country is."

Since the Supreme Court effectively legalized the federal death penalty in
1976, death penalty legislation or even legislative oversight has been
nearly non-existent. Feingold's hearing this summer on death penalty
implementation was the first of its kind since 2001-- the last time a
Democratic majority enabled Feingold to chair a Senate committee.

But there are indications that Feingold may no longer be the lone wolf in
Washington howling about the death penalty's moral and practical problems.
His hearing this summer actually made front-page headlines when fired U.S.
Attorney Paul Charlton gave specific examples of the Alberto Gonzales-led
Justice Department eagerly pursuing death sentences at the expense of due
process. Nationally, executions this year are down to 42, their lowest
level in a decade.

Of those executions all but one were done via lethal injection. And the
Supreme Court's stay of execution for Mississippi prisoner Earl Berry was,
according to the New York Times, an "indisputable indication" that the
Court will stop all deaths by lethal injection until next spring.

That's when the nine justices argue Baze v. Rees, which will determine if
death row inmates can challenge the so-called 3-drug cocktail used for
executions as a violation of 8th amendment prohibition of cruel and
unusual punishment. Some doctors now argue that the drug combination may
sometimes result in inmates being paralyzed but not anesthetized, meaning
the final moments of their lives are spent in searing pain, unable to
move.

While the case will focus on the narrow legal issues of whether such a
constitutional claim can ever be brought, it might represent the best
chance in years to publicly debate whether the entire enterprise of
state-sanctioned killing is cruel and unusual.

Just this week, for example, the American Bar Association released a
timely report showing the misuse and outright neglect of DNA evidence in
capital cases, racial disparity in death sentences and instances of
prosecutorial overzealousness. The findings aren't new but such reports
might at last be heard in the courts and Congress.

(source: Opinion, The Nation)

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

States likely to delay executions until ruling----The US Supreme Court's
stay of an execution Tuesday signals a moratorium on lethal injections
until it decides a key case.


When the US Supreme Court agreed in late September to take up a Kentucky
case testing the constitutionality of the protocol used for executions by
lethal injection, the action raised an immediate question.

What about other death row inmates slated for execution; should their
scheduled executions be postponed pending a final decision by the high
court?

It took more than a month of confusing signals, but the Supreme Court
appears to have finally answered that question when it granted a
last-minute stay of execution Tuesday evening for a Mississippi death row
inmate.

Legal analysts say the action makes it highly unlikely that there will be
any executions by lethal injection in the US until after the high court
hands down its decision in the Kentucky case.

"I wouldn't place any wagers on any [scheduled executions] being carried
out," says Kent Scheidegger, who closely follows death penalty issues at
the Criminal Justice Legal Foundation in Sacramento, Calif. He says stays
of execution will most likely be issued by state and federal judges and
that those stays will not be disturbed by the high court.

"There may be a couple of skirmishes, but the main war is over," says
Richard Dieter of the Death Penalty Information Center in Washington, D.C.
"This is the clearest indication that there is pretty much a de facto
moratorium on executions until the Supreme Court decides this [lethal
injection] issue."

The Kentucky case, Baze v. Rees, is expected to be heard by the justices
in January or February. The Supreme Court will issue a decision by late
June.

Of more than 3 dozen death penalty states, all but 1 use lethal injection
as the preferred method of execution. Most employ the same 3-drug protocol
at issue in the Kentucky case.

The justices have agreed to clarify when a lethal injection execution
might amount to a form of cruel and unusual punishment because of a risk
of pain associated with the procedure. The question is how much pain is
too much pain under the Eighth Amendment.

"The law applied by lower courts is a haphazard flux ranging from
requiring 'wanton infliction of pain,' 'excessive pain,' 'unnecessary
pain,' 'substantial risk,' 'unnecessary risk,' 'substantial risk of wanton
and unnecessary pain,' and numerous other ways of describing when a method
of execution is cruel and unusual," writes David Barron, a lawyer for
death row inmate Ralph Baze in his brief to the court.

Given the prospect that lethal injection might amount to cruel and unusual
punishment under certain circumstances, legal analysts had questioned
whether the court would move to prevent all executions while the Kentucky
case was pending. But on Sept. 25  the same day the high court announced
it would hear the Kentucky case  the justices refused to block the
execution of Texas death row inmate Michael Richard.

The justices turned down a last-minute, after-hours appeal by Mr.
Richard's lawyers. He was put to death that night by the same lethal
injection protocol at issue in the pending Kentucky case. That action
raised the prospect that other death row inmates could be put to death via
a lethal injection protocol that might soon be declared cruel and unusual.

3 weeks later, the court seemed to reverse course when it moved to block
scheduled executions in Arkansas and Virginia.

The actions sent new and conflicting signals to state and federal judges.
In addition, the court's moves led to confusion among state officials
intent on carrying out what they saw as long overdue punishments, and
among defense lawyers seeking ways to slow down the capital punishment
process.

Some analysts say the justices appeared to be trying to draw a careful
distinction between legitimately filed death row appeals on one hand and
last-minute, successive appeals that haphazardly grasp for any legal straw
that might delay an execution on the other.

The granted stay in the Mississippi case on Tuesday is being widely viewed
as a signal by the high court that all lethal injection executions should
be stayed pending resolution of the Kentucky case.

The justices granted the last-minute stay of execution in the case of
Mississippi death row inmate Earl Berry, who had exhausted all of his
appeals. He received his stay of execution even though he presented his
lethal-injection appeal in violation of requirements that such appeals be
filed much earlier in the process, legal analysts say.

The next test of the court's posture on this issue could come in Florida
with the scheduled Nov. 15 execution of Mark Schwab. "That might still be
a test case," says Mr. Dieter, if the Florida Supreme Court rules the
Schwab execution can go forward. But he adds that the more likely scenario
is that the Florida courts or a federal judge will halt the Schwab
execution pending the outcome of the Kentucky case at the US Supreme
Court.

(source: Christian Science Monitor)

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

DEATH PENALTY'S DEADLY VACATION


The Supreme Court on Tuesday effectively halted U.S. executions via lethal
injection until it can rule on a challenge to the constitutionality of a
particu lar execution "cocktail."

This is just the latest example of the whittling away of the death penalty
- the courts have already cut executions by over a third since 1999. But
this latest suspension of executions is likely to demonstrate yet again
that the death penalty deters crime.

The most recent Gallup poll shows that 69 % of Americans favor the death
penalty, yet opponents continue to force a widespread public debate over
its effectiveness.

A common claim is that executions - now down to about 60 per year - are
too rare to deter criminals. To see the spuriousness of this complaint,
consider that "only" about 55 police officers are killed each year - yet
we (academics and the public alike) still see it as a dangerous job, one
whose stresses help account for higher divorce and suicide rates.

Yet those killings are spread across about 700,000 U.S. police officers.
By contrast, 2005 saw 60 executions and 16,700 murders - that is, we
executed murderers at 45 times the rate at which criminals killed police
officers. Given the impact on police, how can we believe that murderers
would be unaffected by the much larger risk they face?

Critics also point to mistaken convictions - yet they still can't point to
a single case in which an innocent person was executed. This is ultimate
proof that our justice system works well - making due account, for
example, for the fact that witnesses sometimes make misidentifications.

Others, like the American Bar Association, claim racial biases in how the
death penalty is applied. In fact, while African-Americans have committed
53 % of all murders since 1980 in which the killer's race is known, they
have accounted for only 38 % of the executions.

The campaign against the death penalty also gives us such spurious studies
as a much-publicized look by The New York Times that compared murder rates
in 1998 in states with and without the death penalty.

(source: Op-Ed, John Lott Jr., New York Post)

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

JUSTICE SYSTEM----U.S. capital punishment under 'significant
review'----Unofficial hold on executions comes amid challenge to method of
lethal injection and rising concern about wrongful convictions


It's not official, but a "creeping moratorium" on the death penalty in the
United States is taking hold as the Supreme Court prepares to hear a
challenge to the method of lethal injection.

The latest inmate to win a reprieve was Earl Wesley Berry of Mississippi,
whose execution was stayed on Tuesday by the U.S. Supreme Court just 19
minutes before he was scheduled to die. He had already eaten his "last
meal."

The United States is one of only a handful of democracies that still
carries out capital punishment.

But the unofficial hold on executions comes amid a steep decline in the
number of death sentences imposed and rising concern about wrongful
convictions.

"All of this suggests that the death penalty is under a significant review
in a way that we haven't had in almost four decades," said Jordan Steiker
of the school of law at the University of Texas at Austin.

Lethal injection has come under increased scrutiny after executions in
Florida and California in which it took inmates up to 30 minutes to die.
All but one of the 37 states with the death penalty and the federal
government use lethal injection for executions.

This year was the first October since 1989 without a U.S. execution and
the first month without one since December of 2004; December is a
typically quiet month in the death chambers because of a reluctance to
execute near Christmas.

If the "moratorium" holds until at least the end of this year, the United
States will have executed 42 inmates in 2007, the lowest number since
1994, when 31 were put to death. If it doesn't hold, the execution rate is
still seen slowing to a trickle.

Around a dozen condemned prisoners have been granted stays since the
Supreme Court announced on Sept. 25 that it would decide an appeal by 2
death-row inmates from Kentucky arguing that the 3-chemical cocktail used
in lethal injections inflicted unnecessary pain and suffering.

One convicted killer was executed in Texas hours later, but legal
observers said his case slipped through partly because of the timing of
the announcement.

The top U.S. court itself subsequently postponed an execution in Texas,
the most active death-penalty state by far with 405 since 1982. Two other
stays have since been granted in Texas by state courts.

Judges or governors in Alabama, Georgia, Virginia, Nevada, Arkansas and
Arizona have also granted stays. Oklahoma's Attorney-General last month
asked the State Court of Criminal Appeals not to set any more execution
dates until the U.S. Supreme Court rules on the Kentucky challenge.

All of the stays were directly related to the Supreme Court's review. It
is not expected to make a ruling before June.

Since it is the 3-drug mixture used in lethal injection that is being
challenged and not the practice itself, states could in theory come up
with an alternative cocktail or method -- but experts believe that is
unlikely.

Enthusiasm for the death penalty appears to be fading, partly because the
option of imposing life without parole has become more widely available to
juries in recent years.

(source: The Globe and Mail)






FLORIDA:

Florida court rejects claim execution method is unconstitutional


The Florida Supreme Court on Thursday rejected a motion by a death row
inmate who claimed new lethal injection procedures adopted after a botched
execution were unconstitutional.

In a unanimous decision, the court said convicted murderer Ian Lightbourne
failed to demonstrate that the procedures still violated the eighth
amendment of the US constitution, which prohibits "cruel and unusual
punishments."

The US Supreme Court is also considering the issue and has granted several
stays of execution since it agreed to take up the issue in September.

Florida had put executions on hold after the botched December 2006
execution of Angel Nieves Diaz. The convicted murderer had to be given two
lethal doses after a needle missed his vein and pierced tissue instead.
His execution took 34 minutes.

The Florida Supreme Court pointed out the state's Department of
Corrections has since adopted additional safeguards to ensure the inmate
is unconscious before the start of the execution.

"In light of these additional safeguards and the amount of the sodium
pentothal used, which is a lethal dose in itself, we conclude that
Lightbourne has not shown a substantial, foreseeable or unnecessary risk
of pain in the DOC's procedures for carrying out the death penalty through
lethal injection that would violate the Eighth Amendment protections," the
court said.

In a separate decision, the court also rejected a child killer's bid for a
stay of execution.

Mark Dan Schwab is now scheduled to be put to death by lethal injection on
November 15.

Schwab, who was sentenced in 1982 for the kidnapping, rape and murder of
an 11-year-old boy, had also cited the botched December execution in his
motion for a stay of execution.

Florida's Governor Charlie Crist signed Schwab's death warrant in July,
ending the moratorium on capital punishment the state had adopted 7 months
earlier.

But the 2 cases could still go to the US Supreme Court which is to rule
whether lethal injections, used in virtually all US executions, violate
the US constitution.

In recent days, the top US court has stayed an execution in Mississippi
and another in Alabama.

In 2006, there were 53 executions in the United States, all but one by
lethal injection, according to official data. The Death Penalty
Information Center lists 42 executions in the United States so far this
year.

(source: Agence France Presse)