[Deathpenalty] death penalty news----USA, MD., WASH., OKLA.
rhalperi at mail.smu.edu
Wed Sep 26 20:19:39 CDT 2007
Justices to Enter the Debate Over Lethal Injection
The Supreme Court on Tuesday stepped into the debate over whether the most
commonly used drug "cocktail" used to execute prisoners on death row is so
likely to produce needless pain and suffering as to be unconstitutional.
The justices agreed to hear an appeal by two men on Kentucky's death row
who argue that the combination of three drugs amounts to cruel and unusual
punishment, in violation of the Eighth Amendment.
The case, which comes at a time when challenges to lethal injections have
effectively stopped executions in a growing number of states, will be
argued in January or February and decided by early next summer. While it
is pending, judges around the country are certain to be asked to bar
executions in those states that are not already under an official or de
In 2004, while the Supreme Court was considering an ultimately successful
challenge to the execution of juvenile killers, judges blocked all such
Of the 38 states with the death penalty, 37 use lethal injection - all
except Nebraska, which still uses the electric chair. Lethal injection was
adopted in the 1980s as a more palatable alternative to electrocution, but
it has proven increasingly troublesome. Leading medical organizations have
told their members not to participate, and lawyers for death-row inmates
have produced evidence showing that in the absence of expert medical
attention, there is a substantial risk of error in administering the
combination of anesthesia and paralyzing drugs necessary to bring about a
quick and painless death.
Litigation over the issue has brought executions to a halt in 9 states:
California, Delaware, Florida, Maryland, Missouri, New Jersey, North
Carolina, Oklahoma and Tennessee, according to lawyers at the Death
Penalty Clinic at the Boalt Hall School of Law at the University of
The issue in the case, Baze v. Rees, No. 07-5439, is not whether lethal
injection, in the abstract, is constitutional or unconstitutional; the
question is more specific and less conclusive than that. It is, rather,
the standard by which courts are to evaluate the evidence that lethal
injection, predictably and with some regularity, goes wrong: that a
paralyzing drug can leave an inadequately anesthetized inmate with the
ability to feel severe pain as another drug stops the heart, but without
the ability to move or call for help.
There have been other problems with lethal injection as well. 4 months
ago, an execution in Ohio was delayed 90 minutes as medical workers
struggled to find a vein in the prisoner's arm into which they could
insert the shunts to carry the intravenous lines.
Under the Supreme Court's precedents on prison conditions, inadequate
medical care is not deemed to violate the Eighth Amendment unless it is
the product of "deliberate indifference." Under the court's death penalty
precedents, a method of execution must not be "contrary to evolving
standards of decency" and may not inflict "unnecessary pain."
In rejecting the challenge to lethal injection last year, the Kentucky
Supreme Court found that the method did not present a "substantial" risk
of pain and suffering, and so met these constitutional standards. "The
prohibition is against cruel punishment and does not require a complete
absence of pain," the state court said.
In their appeal, the two inmates, Ralph Baze and Thomas C. Bowling,
represented by the Kentucky Public Advocate's office, said the Kentucky
court failed to consider that the risk of pain was "unnecessary," in that
alternative methods of lethal injection could eliminate the chance that
inmates would remain conscious but paralyzed. They urge the justices to
incorporate "unnecessary risk" into the standard for evaluating lethal
The 3 chemicals used for lethal injections are sodium thiopental, which
renders a person unconscious; followed by Pavulon, which paralyzes the
muscles, including those that control breathing; followed by potassium
chloride, which causes cardiac arrest. Lawyers have argued that the 2nd
drug could be eliminated and that a less painful drug could be substituted
for the 3rd.
The Kentucky attorney general's office, in urging the justices to turn
down the appeal, argued that the fact that the three chemicals were so
widely used demonstrated that the protocol was acceptable. "Condemned
inmates will never run out of ideas for changes to the procedures, drugs
or equipment used during lethal injection," the state said, warning that
the Supreme Court would go "down an endless road of litigation" if it
accepted the case.
The 2 inmates were convicted of separate, unrelated crimes: Mr. Baze for
killing a sheriff and deputy sheriff who were trying to serve him with a
warrant, and Mr. Bowling for killing a couple whose car he had damaged in
a parking lot.
In 2 earlier cases on lethal injection, the Supreme Court removed
procedural obstacles to bringing such cases but did not deal directly with
the constitutionality of the method. But those two rulings led to an
explosion of litigation.
The only time the court ever ruled directly on a method of execution was
in 1878, when it upheld the use of the firing squad. In 1999, the justices
agreed to hear a challenge to Florida's use of the electric chair, but the
state substituted lethal injection for electrocution before the case could
In 1972, the court struck down all existing death penalty statutes, but in
1976 allowed executions to resume under newly written laws that gave
jurors more precise guidance in an effort to make death sentences less
There have been 1,097 executions since then, with Texas accounting for
403. There have been 40 executions this year, 24 of them in Texas.
(source: New York Times)
Supreme Court to review lethal injection methods
The U.S. Supreme Court took up a constitutional challenge to lethal
injections Monday, agreeing to decide how far states must go to reduce the
risk of excruciating pain during an execution.
The court's decision to accept an appeal from 2 death row inmates in
Kentucky will almost certainly slow the pace of executions around the
nation in the short term. While the case is under review, moratoriums will
continue in California and nine other states where judges have halted
lethal injections during court challenges.
Of the 27 other states with death penalty laws, lethal injection is the
sole or primary means of execution in all but one - Nebraska, which uses
the electric chair - and it is also used in federal executions. Legal
commentators expect judges or prison officials in many of those states to
delay executions until after the Supreme Court's ruling, due by June. The
case is scheduled to be argued in early January.
"This is huge news which could (and probably should) lead to a de facto
moratorium on all lethal injection executions nationwide until the Supreme
Court issues a ruling," Douglas Berman, a law professor and sentencing law
expert at Ohio State University, wrote in his blog on sentencing issues.
But the ruling could also remove long-term legal obstacles to lethal
injections if, as expected, the court sets a constitutional standard under
the Eighth Amendment, which prohibits cruel and unusual punishment.
Federal and state courts around the nation have been weighing legal
challenges to lethal injection from condemned prisoners for most of this
decade, with varying results and with no clear guidance from the high
"Having the court take the issue up will mean that we're going to get some
finality on this method of punishment," said Michael Rushford, president
of the Criminal Justice Legal Foundation in Sacramento, which supports
capital punishment. He said his organization will file arguments urging
the court to give states considerable leeway in lethal injection, which he
likened to euthanasia.
Fordham Law Professor Deborah Denno, a death penalty opponent who
testified for the inmates in the Kentucky case, agreed that the ruling
should help to clear up confusion about execution methods.
"The lack of Eighth Amendment guidance has unraveled the death penalty in
this country," she said.
Berman said he expects the court to allow lethal injections to continue
while concluding that some safeguards are needed to reduce the risk of a
botched and painful execution.
Although the justices have been divided over capital punishment-related
issues, the Ohio State professor said, they probably will reach a
consensus that "the state can't be sloppy to the point of risking extreme
pain when it may not be necessary, but the Constitution doesn't demand
eliminating all risks of pain."
The court in recent years has barred executions of juveniles and mentally
retarded prisoners. But a ruling last term made it easier for prosecutors
in capital cases to remove jurors who had qualms about the death penalty.
According to documents filed by defense lawyers in the Kentucky case, this
will be the first time that the Supreme Court has reviewed the
constitutionality of a method of execution since 1878, when the court
upheld Utah's use of a firing squad.
In that ruling, the court said the Constitution prohibits executions that
involve torture, such as burning alive or drawing and quartering, and
other infliction of "unnecessary cruelty" that the justices did not
Lawyers for the Kentucky inmates argue that the state is violating that
standard by using drugs that pose a risk of extreme pain if something goes
wrong, and by failing to provide adequate safeguards.
The 2 inmates, Ralph Baze, 49, and Thomas Bowling, 52, were both convicted
of double murders and have lost appeals of their death sentences. Baze
shot a sheriff and his deputy who were serving warrants on him in 1992.
Bowling killed a husband and wife outside their dry-cleaning store in
A state judge upheld Kentucky's procedures after hearing testimony from
medical experts and other witnesses in a 2005 trial, and the Kentucky
Supreme Court affirmed that decision in a brief ruling last November,
saying the Constitution "does not require a complete absence of pain."
Lethal injection was first used by Texas in 1982 and was adopted by
California in 1996 after a federal judge barred use of the state's gas
chamber. Executions by injection, largely the same in all states, begin
with the use of a powerful sedative to render the inmate unconscious and
conclude with drugs to paralyze the muscles and stop the heart.
The medical-style procedure was widely viewed as a humane alternative to
more traumatic execution methods such as hanging, electrocution and lethal
gas. But in recent years some studies have suggested that flaws in states'
administration of the sedative, sodium pentothal, have left prisoners
conscious and in agony, but paralyzed and unable to cry out, while they
In California, U.S. District Judge Jeremy Fogel of San Jose ruled last\
December that the state's lethal injection procedures were so haphazard,
with poorly trained prison staff operating in a dimly lit chamber, that
they created an undue risk of a needlessly painful execution.
Fogel had previously blocked the February 2006 execution of Michael
Morales of Stockton, convicted of raping and murdering 17-year-old Terri
Winchell near Lodi in 1981. The judge said then that the state could
execute Morales if a doctor was present to make sure he was unconscious,
but prison officials were unable to find a physician who would
participate. Ethical standards set by medical associations bar doctors
from taking part in executions. The state has since announced changes in
its execution protocol, including better training for prison staff and
closer monitoring of the inmate, and is building a new execution chamber
at San Quentin State Prison.
Fogel plans to visit the prison in November and is scheduled to hold a
hearing on the new procedures in December.
It's not clear whether those plans will be affected by Monday's Supreme
Court order, said Ronald Matthias, a senior assistant attorney general who
oversees death penalty cases in California. Morales' lawyers were
unavailable for comment.
In Business: Court to consider legality of federally ordered revisions in
power contracts between suppliers and states.
What it means
What the court did: Agreed to review an appeal by 2 Kentucky death row
inmates who challenged the state's plans to execute them by lethal
injection. They argued that the 3 drugs used in executions, and the
state's procedures, poses a needless risk of causing severe pain to a
The implications: The ruling, due by June, is likely to set constitutional
standards for the 37 states and the federal government that use lethal
injection as their sole or primary method of execution.
California: A federal judge in San Jose has halted all lethal injections
in the state since granting a stay of execution in February 2006 to
Michael Morales, convicted of a 1981 rape and murder. The Supreme Court's
decision to review the Kentucky case extends court-imposed moratoriums on
executions in California and 9 other states.
The Supreme Court case is Baze vs. Rees, 07-5439.
(source: San Francisco Chronicle)
Death row ruling may suspend U.S. executions----Supreme Court Review; Case
to test if injection method is constitutional
If the Commonwealth of Kentucky had had its way, Ralph Baze would have
been dead this morning, executed by lethal injection for the murder of two
police officers more than 15 years ago.
But the 52-year-old death row inmate, originally scheduled to die last
night, instead celebrated news that the U.S. Supreme Court would hear his
appeal in a high-profile case that could force the suspension of capital
punishment in America.
In a surprise decision, the high court justices agreed to review the claim
by Baze and a fellow Kentucky death row inmate, Thomas Clyde Bowling Jr.,
that lethal injection violates the U.S. Constitution's protections against
cruel and unusual punishment.
"This is huge news which could, and probably should, lead to a de facto
moratorium on all lethal injection executions nationwide until the Supreme
Court issues a ruling," said Douglas Berman, an Ohio State University law
professor and author of a popular legal blog.
The decision to take up the Kentucky cases marks the 1st time in 129 years
that the Supreme Court will hear a test of a method of execution on
The legality of capital punishment itself is not being challenged, only
the question of whether the administration of a lethal 3-drug cocktail
causes death row inmates unnecessary or unbearable pain.
Nevertheless, the potential consequences of the upcoming Supreme Court
ruling are huge. Thirty-six of the 38 American states that allow capital
punishment use the same combination of drugs to put condemned prisoners to
"I think it is necessarily going to be a nuanced ruling," said Prof.
Berman. "It is unlikely to be a curt 'You can't do lethal injection
because it always will cause pain.' "
In the 30 years since the death penalty was reinstated in the American
states have overwhelmingly turned to lethal injection as a replacement for
hanging, gassing, shooting and electrocution, forms of capital punishment
deemed inhumane. Of 1,097 executions since 1977, lethal injections have
been used 927 times, according to the Death Penalty Information Center.
2 of the nation's largest states, Florida and California, abruptly halted
lethal injection executions in 2006 amid a swirl of controversy about the
In Florida, former governor Jeb Bush took action after it took 34 minutes
to kill convicted murderer Angel Nieves Diaz because of a botched needle
In California, Governor Arnold Schwarzenegger ordered revisions to the
state's lethal injection procedure after a state judge found a "pervasive
lack of professionalism" in carrying out the death sentences.
Most American states carry out the death penalty by injecting inmates
first with sodium pentathol, a fast-acting barbiturate that knocks
prisoners unconscious. They are then given a dose of pancuronium bromide
to stop their breathing and, finally, potassium chloride to stop their
Baze was originally scheduled for execution yesterday, but won a reprieve
earlier this month as he awaited news of his appeal.
Lawyers for Baze and Bowling argued last year before Kentucky's Supreme
Court that death row inmates are potentially exposed to horrifying pain if
given too low a dose of the first drug. The court ruled against them
because of "conflicting" evidence about whether prisoners feel any pain.
There was insufficient evidence that lethal injection "creates a
substantial risk of wanton and unnecessary infliction of pain, torture or
lingering death," the threshold of suffering prohibited by the
Constitution, according to the court.
But Baze told The New York Times in 2005: "From all accounts that I've
read, the stuff is like liquid fire going into your veins ... Taking my
life should be enough ... To make me have to live the last few minutes of
it in a living hell is beyond comprehension."
As symbols of the anti-death penalty movement, Baze and Bowling hardly
make for sympathetic figures.
Baze was convicted of shooting an eastern Kentucky sheriff and deputy 3
times in the back when the police officers were serving a fugitive warrant
Bowling murdered a husband and wife, and shot their 2-year-old son,
outside the couple's dry cleaning business in Lexington, Ky.
The Supreme Court's decision to hear their case is "interesting and not
insignificant," says Prof. Berman. "To the extent that they have picked
one involving two less than sympathetic fellows may make it easier for
them to come up with a less than sympathetic ruling," he said.
(source: National Post)
High Court to hear lethal injection case----Justices may ban commonly used
chemical concoctions that may cause dying inmates suffering, but ruling
would not prohibit practice.
The Supreme Court said Tuesday it would hear a new challenge to the way
states carry out executions by lethal injection, possibly banning outdated
chemical concoctions that may cause dying inmates excruciating pain.
Such a ruling would not prohibit lethal injections, but it could force
officials in most states to use new or different chemicals so inmates are
not subjected to an "unnecessary risk of pain and suffering."
This probably would not have much effect in California. In December, U.S.
District Judge Jeremy Fogel in San Jose blocked the state from carrying
out executions using the older chemical concoction on the grounds it would
cause an unnecessary risk of a painful death.
In July, lawyers for two Kentucky death row inmates appealed to the
Supreme Court and cited Fogel's ruling. They urged the justices to adopt
the "unnecessary risk" rule as a constitutional standard for deciding what
is "cruel and unusual punishment."
In a brief order Tuesday, the justices said they had voted to hear this
claim early next year. The court's intervention may halt some pending
executions until the question is resolved, although authorities in Texas,
the nation's busiest death penalty state, said the announcement would not
affect its execution docket.
Texas executed an inmate Tuesday night and has another execution set for
When capital punishment was upheld as constitutional more than 30 years
ago, states relied on electrocution, the gas chamber, hanging or the
firing squad to put an inmate to death. Lethal injections were introduced
in the 1980s as a new and supposedly painless method of execution. Today,
37 of the 38 states with the death penalty have adopted this method.
Nebraska still relies on electrocution.
In recent years, new medical evidence has suggested that the commonly used
three-chemical compound of sodium thiopental, pancuronium bromide and
potassium chloride may be anything but painless. Some experts say that,
while pancuronium bromide may paralyze the inmate, potassium chloride
causes intense pain while stopping the heart.
This evidence has been brought before judges across the country, prompting
some of them to halt executions.
The Kentucky Supreme Court was unconvinced, however. Its judges said they
did not see proof of a "substantial risk of wanton and unnecessary pain,"
and based on that legal standard it upheld the continued use of the
Kentucky has had only 2 executions in recent decades, although it has 41
inmates who are under a death sentence.
Nonetheless, David M. Barron, a 29-year-old public defender from
Frankfort, Ky., wrote an appeal to the Supreme Court and recommended the
justices set a national rule for deciding what constitutes "cruel and
unusual punishment" in evaluating a method of execution.
The state's lawyers replied that the two inmates were good candidates for
the death penalty. In 1992, Ralph Baze shot and killed 2 county sheriffs
who had come to arrest him on a felony warrant from Ohio.
The other inmate, Thomas Clyde Bowling Jr., shot and killed a mother and
father in 1990 after his car had crashed into theirs.
"This is not a case for the U.S. Supreme Court to tell the states how to
carry out an execution or what chemicals to use," Barron said in an
interview Tuesday. "Rather it is for the justices to articulate the proper
legal standard and whether what is being done complies with that." If it
doesn't, how to fix it would be left to the states, he said.
Barron said there was ample evidence that other chemicals would be less
painful than the current trio used by three dozen states, including
Since Fogel's ruling, California has retooled its protocol for carrying
out executions and state officials are in the process of building a new
death chamber. Fogel has scheduled a December hearing to assess whether
the new procedures pass constitutional muster.
The high court's action Tuesday will reverberate around the nation.
University of Richmond law professor Carl Tobias said a key issue is
looming well before the court hears the case: what will happen with
executions scheduled before the court rules.
"I assume most states will await the Supreme Court ruling, but there may
be pressure not to wait," Tobias said.
Ty Alper, associate director of the death penalty clinic at UC Berkeley's
Boalt Hall School of Law, who maintains the website lethalinjection.org,
said he expected the high court's ruling to affect every pending lethal
injection challenge, but certainly would not lead to the abolition of
He emphasized that in recent years stays of execution stemming from lethal
injection challenges had been granted in some cases and denied in others
"with no meaningful difference between the substance of the cases."
"I think it has finally sunk in that there are arbitrary differences
between how these cases are being treated in the lower courts" and that
there is a need for a uniform standard on what constitutes cruel and
unusual punishment in these circumstances, Alper said.
(source: Los Angeles Times)
Md. death penalty case echoes issues
The questions raised in a Kentucky case that is headed to the Supreme
Court closely parallel the issues laid out in a legal challenge filed by a
Maryland death row inmate, whose appeals prompted the state's indefinite
halt to executions.
Attorneys for convicted killer Vernon L. Evans Jr., as well as local death
penalty opponents, said yesterday that they will be closely watching as
the high court weighs for the first time the constitutional questions
surrounding lethal injection cases.
"The issues are very similar," said A. Stephen Hut Jr., who is leading
Evans' legal team in a federal case that challenges Maryland's lethal
injection procedures. "And the ultimate question - which asks whether the
3-drug combination threatens a violation of cruel and unusual punishment
when there are alternatives and readily available ways to accomplish
lethal injection - is really similar."
Attorneys for Evans contend that Maryland's execution protocol violates
the constitutional ban against cruel and unusual punishment and have asked
a federal judge to require the involvement of doctors or highly trained
nurses in state executions. Lawyers representing the state countered that
executions are not medical procedures and should not be held to the same
standards as the practice of medicine.
U.S. District Judge Benson E. Legg put the case on hold when Maryland's
highest court ordered a halt to executions in the state. The Court of
Appeals ruled in December that the state's procedures for putting an
inmate to death were developed improperly - that is, without the public
comment and legislative oversight required for state regulations.
Efforts to repeal Maryland's death penalty statute failed in March when a
state Senate committee vote ended in a tie.
Gov. Martin O'Malley - a death penalty opponent - has held off directing
prisons officials to draft new regulations on lethal injection.
"He wants the legislature to have another opportunity to debate this issue
during the general session," said Rick Abbruzzese, an O'Malley spokesman.
Jane Henderson, executive director of Maryland Citizens Against State
Executions, said it was inevitable that the Supreme Court would face the
issue of lethal injection.
Evans, 57, was sentenced to death 15 years ago in the 1983 contract
killings of David Scott Piechowicz and his sister-in-law, Susan Kennedy,
at the Pikesville motel where they both worked.
(source: Baltimore Sun)
Lethal injection to be examined in Washington
The U.S. Supreme Court agreed Tuesday to examine whether lethal injection,
the method of execution in Washington and 36 other states, inflicts a
cruel and unnecessarily painful death on condemned inmates.
It isn't clear what effect the outcome of that Kentucky case would have on
Washington's death row. But death-penalty opponents here are continuing to
pursue a separate legal challenge by focusing on how - and by whom -
lethal injections are performed.
Earlier this summer, defense attorneys for Dayva Cross, a condemned inmate
from King County, asked the state Supreme Court to force the state
Department of Corrections (DOC) to disclose who is on execution teams, if
they have medical backgrounds and what training they have to deal with
"errors, mistakes or mishaps."
That is considered key information because of apparently botched
executions elsewhere in the country that have been linked to poorly
trained executioners. Those cases have prompted at least 10 states to
suspend the use of lethal injection. No executions are currently scheduled
for the 8 men on Washington's death row.
In Washington, execution procedures don't specify if executioners must
have medical training, said Richard Morgan, DOC's deputy secretary, in a
recent court filing arguing that disclosing executioners' identities would
put them at risk of harassment and "would negatively impact DOC's ability
to carry out executions as required by law."
Even if names were withheld, describing any medical training of execution
members could cause them to be identified, DOC spokesman Chad Lewis said.
Most states don't require their execution-team members to have medical
training, said Deborah Denno, a Fordham University law professor who has
worked on Cross' case. Doing so would put them in an ethically awkward
spot, she said, because the American Medical Association and other major
medical groups admonish their members against participating in executions.
"I think having medically trained personnel involved is best, but I
recognize the ethical dilemmas they face. It would mean executions are
carried out in the most humane way possible," Denno said.
Although Washington's lethal-injection procedure does not require
participation of medical staff, a revision in July called for the DOC's
chief doctor, Dr. Marc Stern, to verify the lethal-injection table is in
But Stern is leery of even that level of involvement and said he would ask
his bosses to reconsider it.
"The way the policy is currently phrased has me more active than I'm
comfortable with," he said. "In general, in the medical community,
physicians are admonished by ethical standards from invoking a death
But he suggested that members of other professions, such as morticians,
may have more "gray areas" in their ethical guidelines and said his staff
was checking with state medical licensers.
"I don't think this is a medical procedure," Stern said. "This is a
forensic procedure. It's a criminal procedure."
The Kentucky case to be considered by the U.S. Supreme Court is the 1st
time the court has considered a challenge to a method of execution since
1879, when it upheld the use of a firing squad in Utah. The court's
decision will likely stall the use nationwide of the controversial 3-drug
cocktail that has been used to execute 927 inmates since 1972.
Lethal injection was first conceived in Oklahoma as a more humane method
than the electric chair. Although the procedure varies among states, it
generally involves injection of anesthetic, a muscle paralyzer and a
substance to stop the heart. Death-penalty foes have argued that if the
condemned prisoner is not given enough anesthetic, he can suffer
excruciating pain without being able to cry out.
3 of the 4 men executed in Washington since the death penalty was
reinstated in 1981 were killed by lethal injection, including the 2 most
recent, Jeremy Sagastegui in 1998 and James Elledge in 2001.
Little is known about those execution teams, in part because both men
volunteered to die, limiting their lawyers' ability to extract DOC
Last year, the American Civil Liberties Union of Washington State asked
but failed to get details about the backgrounds of those who participated
in the executions of Sagastegui and Elledge, said Aaron Caplan of the
"Even if we don't know the names of the people who will be selected, the
DOC at least ought to be able to tell us the people we draw the execution
team from," Caplan said. "The public has the right to know when state
officials are carrying out important procedures that affect the life and
death of people of the state."
No county in Washington has sent more inmates to death row than Pierce
County. County Prosecutor Gerald Horne said lethal injection has been a
preferable method because it should be painless.
"No one wants to see anyone suffer," he said. "If something is going wrong
with lethal injection, it should be corrected."
But debates about the lethal-injection procedure are largely academic in
this state, he pointed out. Despite the fact that Pierce County leads the
state in sending men to death row, no inmate from the county has ever been
executed, Horne said.
"I don't think anyone in the state of Washington will hold their breath
waiting for the next execution," he said. "I've said this in the past: The
death penalty is a farce in the state of Washington, because the death
penalty is never executed."
(source: Seattle Times)
Court tackles death penalty
The Supreme Court hasn't heard a case regarding execution form since 1878.
The U.S. Supreme Court agreed Tuesday to hear a Kentucky case with
far-reaching consequences for Oklahoma and the nation's 37 other capital
"We will be closely watching this case," said Emily Lang, a spokeswoman
for Oklahoma Attorney General Drew Edmondson. "We use the same chemicals
as Kentucky. We will be looking at Kentucky's process to see how closely
it mirrors ours."
The case, Baze v. Rees, alleges that Kentucky's lethal-injection law
violates the Constitution's Eighth Amendment ban on cruel and unusual
punishment. Not since 1878, when firing squads were upheld as an
acceptable means of execution, has the court ruled on an Eighth Amendment
challenge to a particular form of capital punishment.
Oklahoma is among several states that list firing squad as a back-up form
of execution in the event other methods are declared unconstitutional.
"The court has denied hearing cases about the form of execution for more
than 100 years," said University of Tulsa law professor Lyn Entzeroth. "It
may be they decided to hear this one because the issue has come up again
37 of the 38 states with death penalty laws use lethal injection. Oklahoma
in 1977 was the first state to adopt the procedure, although it was
another 13 years before the state actually put anyone to death.
The procedure involves injecting the condemned person with three chemicals
- a barbiturate intended to cause unconsciousness, followed by drugs that
stop breathing and the heart. It is supposed to be quick and painless, but
several cases of botched executions taking as much as two hours to
complete have been reported in recent years.
Most of these have involved difficulty finding suitable veins for the
injections or miscalculating the barbiturate dosage. Oklahoma has reported
no such cases.
"Any method of execution is cruel and unusual if it's done poorly," said
the Rev. Bill Wiseman Jr. "The only time I'm aware of any problem (with
lethal injection) is when they don't do it right."
Now vicar of the Church of the Holy Cross in Owasso, as a young legislator
Wiseman wrote Oklahoma's lethal injection bill. That bill became the model
for lethal injection laws nationwide.
Although Wiseman has since said he has reservations about capital
punishment, he seems to still think lethal injection is the most humane
"I'm fairly confident I know what the court will decide," he said during a
telephone conversation Tuesday afternoon. "I think they'll decide that a
person being executed has the right for the procedure to be done
Oklahoma has carried out 86 lethal injections since resuming executions in
1990 after a 24-year hiatus. 82 executions were performed from 1915 to
1966, when Oklahoma used an electric chair.
In 1972, the U.S. Supreme Court ruled that death penalty laws as then
enforced were "capricious and arbitrary," effectively outlawing the
practice in the United States.
4 years later, however, the high court upheld new death penalty laws in
Florida, George and Texas, and within a short time 38 states, including
Oklahoma, reinstated capital punishment.
Oklahoma ranks 3rd behind Texas and Virginia in the number of executions
since 1976. The most recent execution was on Aug. 21, when Frank Welch was
put to death. No further executions are scheduled, but the Oklahoma
Department of Corrections lists 80 deathrow inmates.
One of them, Charles Taylor, has challenged Oklahoma's lethal injection
law in Oklahoma's U.S. Western District Court. Taylor was convicted in
Pittsburg County of the 1995 murder of Michael Sauer.
A brief history
1608 - First recorded execution in American history at Jamestown, Va.
1878 - U.S. Supreme Court rules execution by firing squad constitutional.
1890 - First U.S. execution by electric chair.
1915 - First execution at the Oklahoma State Penitentiary in McAlester;
previously, executions were carried out by county sheriffs.
1924 - First U.S. execution by cyanide gas.
1966 - James French put to death in electric chair; last Oklahoma
execution for 24 years.
1968 - National moratorium on executions begins.
1972 - U.S. Supreme Court, in Furman v. Georgia, rules application of
death penalty has been arbitrary and capricious, effectively outlawing
capital punishment; Congress and 38 states subsequently pass laws
separating the sentencing judgment phases of capital proceedings.
1976 - U.S. Supreme Court rules constitutional new death penalty laws in
Florida, Georgia and Texas; Oklahoma reinstates capital punishment.
1977 - Utah firing squad executes Gary Gilmore; first U.S. execution since
1968. Oklahoma passes lethal injection bill that becomes model for similar
1982 - First U.S. execution by lethal injection carried out in Texas.
1990 - Charles Troy Coleman becomes first prisoner executed under
Oklahoma's lethal injection law; state's first execution of any kind since
Aug. 21, 2007 - Frank Welch becomes 86th person executed by lethal
injection in Oklahoma since 1990.
Sept. 25, 2007 - Oklahoma Department of Corrections lists 80 death row
(source: Tulsa World)
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