[Deathpenalty] death penalty news-----NEB., GA.
rhalperi at mail.smu.edu
Sun Feb 10 17:25:38 CST 2008
Legal scholars weigh in on electric chair ruling
A Nebraska law professor said both sides made reasonable arguments in
Friday's Nebraska Supreme Court decision that ruled use of the electric
chair unconstitutional because it is cruel and unusual.
And, Creighton Law Professor Michael Fenner said, criticism of the
majority opinion that uses the "activist court" label misses the point.
"Activist" is used for opinions (we) don't agree with," he said.
"The current (U.S.) Supreme Court has struck down more federal statutes
than any other court," Fenner said. "But no one says they're "activist."
"I'm not saying there isn't judicial activism. I'm just saying the label
doesn't mean anything anymore."
Fenner said both the majority and Chief Justice Mike Heavican, who wrote a
dissenting opinion, made sound arguments.
"Chief Justice Heavican makes a really terrific point," Fenner said.
"How do you say, that's (a method of execution) wrong?
"... The majority made a really terrific point, too. And that is, we don't
Fenner said he believes the framers of the Constitution intentionally left
the phrase, "cruel and unusual" punishment vague.
"I think they understood that there was an evolving standard, that some
day, stoning (for example) would be cruel and unusual.
"Really, in the end, there's no right answer," he said.
Like Heavican, University of Nebraska Law Professor Bob Schopp was not
persuaded by the majority's arguments against the electric chair.
Schopp, whose areas of specialization at the Nebraska Law College include
criminal and death penalty law, said the 6-1 majority failed to make its
case against the electric chair.
"I did not find it particularly persuasive," he said of the majority
ruling in the case State v. Mata. "They did not articulate a clear
standard of what constitutes cruel and unusual punishment."
Written by Judge William Connolly, the majority opinion relied heavily on
scientific evidence about the physiological effects of electricity and on
a review of federal case law.
"Contrary to the State's argument, there is abundant evidence that
prisoners sometimes retain enough brain functioning to consciously suffer
the torture high voltage electric current inflicts on the human body," the
"The evidence supports the district court's statement that instantaneous
and irreversible brain death is a myth."
But, Schopp said Saturday, the majority failed to go much beyond a review
of the science and conduct a thorough analysis of the legal interpretation
of "cruel and unusual" punishment.
He said he agreed with Heavican, who complained in his dissent that the
majority had omitted wanton" from the standard used by the U.S. Supreme
Court to determine if a punishment violates the Eighth Amendment.
The U.S. Supreme Court has held in several cases that a method of
execution cannot cause "the unnecessary and wanton infliction of pain."
Heavican wrote that the majority, "in a subtle shift," had dropped the
words "and wanton" from its analysis of the electric chair's
"The result," Heavican wrote, "is that a prisoner need not show any
culpability on the part of government to invalidate a method of
Schopp also noticed the omission.
"Why this was done was not clear," he said.
Schopp also took issue with the majority's declaration that it was
evaluating the electric chair against the Nebraska Constitution, rather
than by federal law. Yet the majority, he and Heavican said, relied on
federal law in reaching its decision.
"It's pretty clear that states have the authority to interpret state
constitutions," Schopp said. On the other hand, what they did was use
federal law. Heavican was right in pointing this out."
But Schopp said he was puzzled by Heavican's criticism of the
"evolving-standards-of-decency" test used by the majority.
Heavican questioned the use of such standards, writing that they can be
But Schopp said the concept is "very clearly established" and accepted in
the federal system.
He agreed, however, that how the standard is determined - in other words,
the evidence courts can use to determine standards of decency - is
Fenner said the majority's reliance on federal case law to decide a state
law issue was not uncommon.
"It's common for states to use federal cases when there's not a lot of
state (case law) to look at," he said.
Fenner said the ruling opened the door for Nebraska to lead other death
penalty states - which use lethal injection - out of a logjam.
Most of those states, he said, use the most painful drug cocktail in
lethal injections. A minority uses the less painful protocol, Fenner said.
Legislatures in the majority states have been reluctant to "open a can of
worms" and revise their protocols, he said.
But if Nebraska adopts lethal injection that uses the less painful drug
protocol, it could encourage the other states to follow suit.
"It (Nebraska) might be a model for other states to follow," he said.
(source : Lincoln Journal Star)
Abolish the death penalty in Nebraska
Friday's Nebraska Supreme Court decision leaves the state without a means
of carrying out the death penalty.
The time is ripe to abolish capital punishment in the state.
Sen. Ernie Chambers' bill, LB1063, would allow 2 sentences for 1st-degree
murder: life in prison or life in prison without the possibility of
parole. The measure failed by just one vote last year.
With the advent of more DNA testing, errors in sending people to death row
were shown to be far more frequent than most people believed.
Nationally, scores of people - including some on death row - have been
cleared of their crimes. Some who were released on the basis of DNA
testing were completely exonerated and actually were innocent.
The justice system isn't perfect. That has been proved in the past and
will be proved in the future.
Nebraskans are sharply split over the death penalty, with 51 % in a 2007
Nebraskans Against the Death Penalty poll favoring repeal if accompanied
by a sentence of life without parole and restitution to the victim's
Gov. Dave Heineman has said he would veto Chambers' bill, which would take
30 votes in the Legislature to overcome.
That's a steep order, but state senators need to consider what means of
the death penalty would be viable.
Nebraska was the only state using the electric chair as the sole means of
execution, and now its high court has ruled that method to be cruel and
"Contrary to the state's argument, there is abundant evidence that
prisoners sometimes will retain enough brain functioning to consciously
suffer the torture high voltage electric current inflicts on a human
body," Judge William Connolly wrote in the opinion for the court. "The
evidence supports the district court's statement that instantaneous and
irreversible brain death is a myth."
No doubt. Remember Florida, where one person being electrocuted bled from
the nose and 2 others had flames shooting from their heads?
Photos of Allen Lee Davis' execution in 1999 show what happened as the
switch was thrown.
According to a New York Times article, his face contorted and turned a
bright purple, blood pouring from his nose. He was still alive when the
power was turned off, witnesses reported, his chest rising and falling
about 10 times before he was still.
Lethal injection has the same problem. The U.S. Supreme Court now is
considering whether the most common drugs used to kill by lethal injection
violate the Constitution.
Recent executions in Florida and Ohio using lethal injection took much
longer than usual, with strong indications prisoners suffered severe pain
in the process, The Associated Press reported.
The 3-drug cocktail has appeared to cause some inmates to suffocate while
conscious and paralyzed instead of stopping their hearts while they were
knocked out, a report in the medical journal PLoS Medicine said.
"There is no humane way of forcibly killing someone," editors of the
Instead of rushing to pass a new means of capital punishment, the
Legislature should take this opportunity to finally get rid of the death
(source: Editorial, Lincoln Journal Star)
Georgia Activists Fight Fast-Track Efforts
Activists in the U.S. southern state of Georgia are fighting to defend and
advance the rights of those who could face capital punishment trials,
looking ahead to the days when the current country-wide moratorium on
lethal injections will be lifted.
Since late September 2007, all executions in the U.S. have been on hold
while the Supreme Court hears legal challenges to lethal injection, the
country's main form of execution.
Supreme Court justices are not expected to declare lethal injection
unconstitutional when they rule in several months. But they are likely to
set standards for evaluating the evidence if mistakes are made during
executions, according to the New York Times.
While executions are on the decline throughout most of the U.S., the
practice still remains prevalent in the south. Southern states accounted
for 86 % of the 42 executions carried out in the country in 2007, with 26
in Texas alone.
Georgia is currently considering House Bill 185 that would fast-track the
capital punishment process. Activists, lawyers and some state lawmakers
are focusing their efforts on blocking this bill, which would allow juries
to hand down death penalty verdicts with only a majority vote.
House Bill 185 passed the Georgia House of Representatives by 106 votes to
65 last year. It is now stalled in a Senate committee.
Opponents warn that the bill could come before the Georgia General
Assembly again this session.
"It is deeply troubling," Sara Totonchi of the Southern Centre for Human
Rights (SCHR) told IPS. "As the rest of the country wants to be more
cautious and is using the death penalty less and less, Georgia is taking a
step backward. This flies in the face of the national trend."
The SCHR is campaigning against the bill together with the Georgia
Association of Criminal Defence Lawyers (GACDL).
"No other state has a system for non-unanimous verdicts in death [penalty]
cases," a joint statement from the two groups says.
The U.S. Supreme Court ruled in Gregg v. Georgia (1976) that the death
penalty procedures used in Georgia were constitutional. These included the
requirement of a unanimous jury verdict.
The SCHR and GACDL argue that if House Bill 185 becomes law, it might not
One Georgia lawmaker opposed to the bill is Stephanie Stuckey Benfield, a
Democrat from Decatur, Georgia. "It's a serious concern," she told IPS.
"It's embarrassing when the rest of the nation is imposing a moratorium."
The SCHR and GACDL, which also oppose a similar bill that would allow
majority jury convictions in felony cases, argue that recent exonerations
through the use of DNA are a warning that judicial mistakes do occur.
"Because the system is not foolproof, we need to be more cautious about
imposing death sentences -- not make it easier," they argue. "A unanimous
jury helps safeguard against the inherent problems in the legal system.
"To eliminate the requirement of unanimity shows a total disrespect for
jurors struggling to make perhaps one of the most critical decisions of
their lives," they add.
Georgia is one of several states that have recently made huge compensation
payments for people wrongly convicted. Last year, the state paid out 1.2
million dollars to Robert Clark, a man wrongly convicted of rape in 1982.
He was vindicated by DNA evidence.
Since 1973, 127 inmates have been released from death row with evidence of
their innocence, according to the Death Penalty Information Centre. In
2001, the Centre on Wrongful Convictions at Northwestern Law School
analysed the cases of 86 of those exonerated and released from death row.
It found eyewitness error played a role in 45 of the cases.
In a separate effort to strengthen the rights of those risking capital
convictions, Benfield introduced legislation in the Georgia General
Assembly this session that would require all Georgia law enforcement
agencies to follow strict written procedures for witnesses identifying
suspects in police line-ups.
The reforms would include the rule that the officer administering a
line-up should not know the identity of the suspect. The office should
also not be informed whether the suspect is actually in the identification
In addition, there should be only one suspect in each line-up. Witnesses
should not be told whether the suspect has been placed in that particular
Proponents of the bill argue that it would make it impossible for the
officer in charge to give verbal or non-verbal cues that could steer a
witness towards identifying a certain person.
In one of the largest compensation awards involving miscarriages of
justice, a federal jury awarded Alejandro Dominguez nine million dollars
in 2006 after deciding that the police had pushed the rape victim to
identify Dominguez, even though he did not match the description of the
Benfield chaired a special committee last year that met with experts on
eyewitness identification as well as police and prosecutors.
While law enforcement officials and prosecutors initially expressed
serious concerns about Benfield's proposals, all parties eventually agreed
on legislation acceptable to all.
"We have made incredible headway with this study committee," Benfield told
IPS. "Law enforcement really wants to do the right thing. They don't want
the wrong person sitting in jail while the right person is out there
The proposed legislation calls on the police to begin training its
officers and developing guidelines and procedures for conducting
identification line-ups this year. By mid-2011, everything could be in
place and the training completed.
The Georgia House of Representatives Non-Civil Judiciary Committee passed
Benfield's legislation on Feb. 6, 2008. The legislation could come before
the House for a vote later this month.
Georgia's efforts to make it less likely that innocent people will be
executed come at a time when there is an assault on capital punishment
elsewhere in the U.S.
Several states narrowly failed to abolish the death penalty in 2007.
Legislatures in Nebraska, Colorado, Montana, Maryland and New Mexico all
narrowly defeated measures that would have abolished the death penalty.
The Nebraska Supreme Court ruled on Feb. 8, 2008 that the use of the
electric chair violates the state's constitution. Nebraska was the last
state to use the electric chair as its sole method of execution.
There are now 14 out of the 50 U.S. states that no longer practice the
death penalty. Other states like California, North Carolina and Tennessee
still impose the death penalty but have formed state commissions to study
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