US: Execution Moratorium May Outlive High Court Ruling

The U.S. Supreme Court is unlikely to outlaw lethal injection, the UnitedStates’ main form of execution, when it rules on a test case this spring,but many states may continue their de facto moratoriums well into thefuture, amid ongoing legal battles about the issue in their own statecourts.

In September 2007, the Supreme Court agreed to hear challenges to lethalinjection as a method of execution brought by lawyers fighting for thelives of two Kentucky death row inmates. The lawyers charge that thethree-drug cocktail creates a “significant and unnecessary risk of pain”.This would violate a constitutional ban on “cruel and unusual punishment”.
The Supreme Court’s decision to hear the case — the first time in acentury that it has addressed the legality of an execution method — hasresulted in a moratorium on executions in the U.S. Forty people havereceived stays of execution since September, according to the DeathPenalty Information Centre.

“The conservative Supreme Court is not expected to prohibit the use oflethal injection when it rules in the spring,” Sarah Tofte, a researcherwith Human Rights Watch, predicted. “It is not going to issue a rulingthat would jeopardise what states can do in terms of lethal injections,”she told IPS.

But the Supreme Court is likely to issue general guidelines on how lethalinjections should be carried out. This would still leave most of thecurrent concerns about this form of execution unresolved.

Tofte added: “The Supreme Court will definitely not outlaw executions.”

Of the 50 U.S. states, 36 still have the death penalty and all but one ofthese rely on lethal injections. Most use the identical cocktail of drugsnow under discussion in the Supreme Court. The first is an anaesthetic.The second paralyses the muscles. The third brings the heart to a stop.

Arguments against lethal injection have highlighted the fact that in manystates this 3-drug mixture has been outlawed for use in euthanising pets,out of concern that it causes suffering to the animals.

Human Rights Watch, particularly in its 2006 report authored by Tofte, hasshed light on individual cases showing that usually non-medical personnelare used to administer the drugs.
Recent media coverage has highlighted how this has contributed to a numberof botched executions, including in Florida and California where it wasobvious that the condemned suffered pain before dying. In Florida inDecember 2006, Angel Diaz in obvious pain took 34 minutes to die as aninexperienced executioner fumbled to find the vein for the deadlyinjections.

“This is testing America’s appetite for the death penalty,” Tofte toldIPS. “We don’t talk in detail about how we execute people.” But now U.S.citizens were being brought face-to-face with the question of whetherthere was such a thing as a “humane lethal injection”.

Deborah Denno, professor of law at Fordham University, agreed that theSupreme Court case on lethal injections was not likely to bring suchexecutions to an end or silence the growing controversy about this form ofstate-administered death.

“No matter what the Supreme Court decides, there are going to be ongoingproblems with lethal injection,” Denno told IPS.

“The questions about lethal injection cannot be contained. They willcontinue to swirl around in the courts. It is inevitable that there willbe more problems and these will be publicised,” Denno said. “On aninternational level this country is going to be in the spotlight forhaving a death penalty and knowingly using a method of execution thatcauses suffering.”

Denno predicted that this would lead to more states declaring their ownmoratoriums on capital punishment.

Even before the Supreme Court became involved, 12 states had introducedinformal moratoriums following legal challenges in their courts. Concernshave often been that the sodium pentothal anaesthetic might sometimes failto work effectively and the inmate may die in excruciating pain as thefinal drug is administered.

In December 2007, the state of New Jersey became the 1st state since 1965to abolish the death penalty.

Anxiety over lethal injection and innocent convictions has contributed tofewer people being executed in the U.S. in 2007 than at any time in thepast 13 years — some 42. Fewer people have also received a deathsentence, according to the Death Penalty Information Centre. Currently,there are 3,350 people awaiting execution on death row.

Brian Evans of Amnesty International has identified at least 4 stateswhere there will be serious discussions on whether to abolish capitalpunishment — Nebraska, Maryland, Montana and New Mexico.

“The long-term trend is away from support for the death penalty,” Evanstold IPS.
In January, Evans listened to lawyers presenting their arguments in theSupreme Court lethal injection case and came away in a state of shock. “Mycolleagues and I talked about how disturbing it was to hear high-poweredlawyers and justices calmly and politely discussing the best way to killsomeone,” he said.

Apart from this troubling issue which had been largely a secret for thepast 30 years, there were others that might also come before the courtsand play a role in bringing an end to capital punishment in the U.S. Theseincluded the “arbitrariness about who is sentenced to death and the factthat innocent people are being executed”, Evans said.

Since 1973, 126 people have been released from U.S. death row withevidence of their innocence, according to the Death Penalty InformationCentre. Fifteen death row inmates have been released because ofirrefutable DNA evidence, according to the Innocence Project.

It is this concern over wrongful convictions that was chipping away atsupport for capital punishment in such traditionally pro-death penaltystates as Texas, said Steve Hall of StandDown Texas.

“I don’t want to paint too rosy a picture,” he told IPS. “I think Texaswill be one of the last states to fundamentally change. But a lot of eyesare being opened due to the fact that innocent people have been sent todeath row. The abolition movement is growing in Texas.”

This concern over judicial mistakes and evidence of corruption in thestate’s legal system last year played a role in the state’s largestnewspaper, the Dallas Morning News, reversing its 100-year-old editorialsupport for capital punishment.

“This board has lost confidence that the state of Texas can guarantee thatevery inmate it executes is truly guilty of murder,” the paper wrote.
(source: IPS News)