April 16
USA:
Supreme Court upholds Kentucky's use of lethal injections
The Supreme Court upheld Kentucky's use of lethal injection executions
Wednesday.
The justices, by a 7-2 vote, turned back a constitutional challenge to the
procedures in place in Kentucky, which uses 3 drugs to sedate, paralyze
and kill inmates.
"We … agree that petitioners have not carried their burden of showing
that the risk of pain from maladministration of a concededly humane lethal
injection protocol, and the failure to adopt untried and untested
alternatives, constitute cruel and unusual punishment," Chief Justice John
Roberts said in an opinion that garnered only 3 votes. Four other
justices, however, agreed with the outcome.
Justices Ruth Bader Ginsburg and David Souter dissented.
Executions have been on hold since September, when the court agreed to
hear the Kentucky case. There was no immediate indication when they would
resume.
The argument against the 3-drug protocol is that if the initial anesthetic
does not take hold, the other 2 drugs can cause excruciating pain. One of
those drugs, a paralytic, would render the prisoner unable to express his
discomfort.
The case before the court came from Kentucky, where 2 death row inmates
did not ask to be spared execution or death by injection. Instead, they
wanted the court to order a switch to a single drug, a barbiturate, that
causes no pain and can be given in a large enough dose to cause death.
At the very least, they said, the state should be required to impose
tighter controls on the three-drug process to ensure that the anesthetic
is given properly.
Kentucky has had only one execution by lethal injection and it did not
present any obvious problems, both sides in the case agreed.
But executions elsewhere, in Florida and Ohio, took much longer than
usual, with strong indications that the prisoners suffered severe pain in
the process. Workers had trouble inserting the IV lines that are used to
deliver the drugs.
(source: Associated Press)
*********************
Court Rejects Lethal Injection Challenge—-Executions Had Been on Hold
Nationwide While Justices Considered Case
The Supreme Court has upheld the three-drug lethal injection method used
by the state of Kentucky in a 7-2 decision, clearing the way for a
nationwide stay on executions to be lifted.
Chief Justice John Roberts penned the case opinion, while two Justices,
Ruth Bader Ginsburg and David Souter, dissented.
The two convicted murderers at the center of the case, Ralph Baze and
Thomas C. Bowling, had unwittingly caused an unofficial moratorium on
executions across the country. Since the high court took their case last
September, no executions were carried out as state and federal courts
waited to see how the Supreme Court was going to rule.
Of the 36 states with a death penalty law on the books, all but one has
designated lethal injection as the primary method of execution.
Baze and Bowling had argued that death by lethal injection constitutes
cruel and unusual punishment. The drugs included in the protocol are
sodium thiopental, which anesthetizes; pancuronium bromide, which
paralyzes; and potassium chloride, which causes cardiac arrest.
Lawyers for the inmates argued that the drugs are administered by
untrained officials who can botch the execution and cause extreme pain.
They also argued that other drug combinations could be more effective in
carrying out the death penalty.
Donald Verrilli, an attorney for the Kentucky inmates, has said, "It
really is not about fine-tuning the system to create an incrementally less
amount of pain. This is about avoiding torture."
But in court, the justices seemed skeptical of the argument. Conservative
Justice Antonin Scalia said, "Where does this come from that you must find
the method of execution that causes the least pain? We have approved
electrocution. We have approved death by firing squad. I expect both of
those have more possibilities of painful death than the protocol here."
There have been instances across the country of fumbled executions.
In Florida, convicted murderer Angel Diaz was executed in 2006. But a
medical examiner's postmortem examination revealed that due to the
improper injection of the anesthetic in his case, he had chemical burns on
both arms. Experts believe he would have felt extreme pain for 20 to 30
minutes.
In Ohio, Joseph Clark was sentenced to death for killing a gas station
attendant. But his 2006 execution was botched. It took him 86 minutes to
die while he screamed in pain.
Even his victim's brother, Michael Manning, watched in horror. "He started
to shake his head from side to side," said Manning. It took a technician
19 tries to insert the deadly intravenous needle.
Manning said what he saw in that execution chamber should not have
happened. "I believe in the death penalty, but I side on the
constitutionality side of it. The Eighth Amendment says no cruel and
unusual punishment, and that's what I think it was."
In Missouri, the doctor who devised and supervised that state's lethal
injection procedure has admitted in court that he is dyslexic, "so it's
not unusual for me to make mistakes."
An investigation by the St. Louis Post-Dispatch revealed that the doctor,
Alan R. Doerhoff, had been sued for malpractice more than 20 times. The
paper also reported that one nurse who worked on Missouri executions is
himself a convicted stalker.
But victims' rights advocates, as well as victims' family members, often
have little sympathy for the arguments of the death row inmates.
Dennis Briscoe was 14 years old when Baze opened fire with an assault
weapon and murdered his father and uncle — both Kentucky law enforcement
officers.
"What they should really consider is the pain my father and uncle went
through when that happened," he said. "We should all be so lucky as to
just fall asleep when we die."
Before the Supreme Court's ruling, Richard Dieter of the Death Penalty
Information Center, a group that opposes the death penalty, acknowledged
that death penalty cases wouldn't be overturned based on the High Court
ruling. He said, "This is going to be a limited ruling in the end that
changes our methods or tweaks the method of execution but doesn't stop it
completely."
Dieter said that documented cases in which executions have been bungled
convinced the court that it needed to take up the issue. "This sort of
carelessness that has been used by the states has pushed the court to say,
we want to review this. This is a national issue; all executions are
virtually by the same methods. It's time that it came under our review."
(source: ABC News)
****************
Supreme Court to hear challenges to death penalty for child rapists—-The
decision could weaken a similar law passed in Texas last year
The U.S. Supreme Court will hear challenges today to a Louisiana law
allowing the death penalty for child rapists. The court's decision could
weaken a similar law passed in Texas last year.
Justices will consider the case of Patrick Kennedy, a Louisiana man who
was sentenced to death in 2003 for the rape of his stepdaughter when she
was 8 years old. At issue is whether a Louisiana law allowing the death
penalty for the rape of a child younger than 12 violates the U.S.
Constitution's ban on cruel and unusual punishment.
David Bruck, a defense lawyer who has successfully argued 6 death penalty
cases in the Supreme Court, said a decision that the Louisiana law is
unconstitutional could also nullify the death penalty provision in what is
known in Texas as Jessica's Law. That law, passed last year, permits the
death penalty, or life in prison without parole, for the 2nd conviction of
aggravated sexual assault of a child younger than 14.
Lt. Gov. David Dewhurst said Monday that the Texas law was crafted to
withstand a constitutional challenge and that it is substantially
different from the Louisiana law, pointing out that in Texas, two
convictions are required before the death penalty can be sought.
"In the unlikely event the Supreme Court rules the death penalty is
unconstitutional," Dewhurst said, "Texas' law would remain in effect
without the death penalty provision, allowing prosecutors to seek a life
in prison without the possibility of parole."
Nobody has been sentenced to death under the Texas law. In a 1977 case,
Coker v. Georgia, the Supreme Court said the death penalty was an
excessive sentence for the rape of a 16-year-old because the defendant did
not take a life. Opponents of the Louisiana law say that argument still
stands.
"The rape of a child is not equivalent to killing a child," Bruck said.
But the Louisiana Supreme Court, in upholding Kennedy's death sentence,
noted that the Coker ruling referred to the 16-year-old victim as an
adult. That left an opening for states to use the death penalty in cases
involving children, the court said.
In two recent cases, the U.S. Supreme Court has cited a national consensus
against using the death penalty as a punishment for crimes committed by
juveniles and people with mental retardation. The country's acceptance, or
lack thereof, of the death penalty as a punishment is also a key issue in
the Louisiana case.
At least five states have laws, all passed since 1995, allowing the death
penalty for rape of a child, although Louisiana's is the only one that
allows it for first-time offenders.
A brief from Texas and other states supporting Louisiana argues that state
lawmakers should be able to adopt capital punishment laws that reflect the
moral judgments of their citizens. Texas Solicitor General Ted Cruz will
have 15 minutes to argue for those states before the Supreme Court today.
"The Supreme Court has never addressed this issue in the context of child
rape," Cruz said in a written statement. The nine states that have sided
with Louisiana in the case "are united in believing that the Constitution
permits democratically elected legislatures to choose to allow the most
serious punishments for the very worst child rapists."
Lawyers arguing against the Louisiana law say that 44 states prohibit the
death penalty in such cases and that prosecutors hardly ever seek the
death penalty where it is allowed. Of the 3,300 people on death row in the
United States, just 2 in Louisiana were convicted of crimes not related to
murder, according to the Death Penalty Information Center.
"Patrick Kennedy has clearly been sentenced to a punishment that does not
enjoy the tolerance or the support of the American people," said Bruck,
who sits on the board of directors at the center.
Judy Benitez, director of the Louisiana Foundation against Sexual Assault,
said the death penalty in such cases discourages children from reporting
the crime, because the perpetrator is often a family member or someone
whom the victim knows. She also said the possibility of getting the death
penalty could cause a rapist to kill the victim, who is the only witness
to the crime.
(source: Austin American-Statesman)
**********************
U.S. Supreme Court to hear Texas argue death penalty for child rapists
Texas says sometimes the sexual assault of a child can be so violent or
obscene that the only appropriate punishment is to execute the offender.
And Wednesday, Texas Solicitor General Ted Cruz will make that case to the
U.S. Supreme Court, arguing that state legislatures have the
constitutional right to allow the death penalty for child rapists.
The case before the court, Kennedy vs. Louisiana, concerns a Louisiana law
and the case of a Jefferson Parrish, La., man convicted of raping his
8-year-old stepdaughter. But striking down that law could call into
question Texas' 2007 "Jessicas Law," which allows the execution of certain
repeat child sex offenders.
The Supreme Court ruled 30 years ago that death was an excessive penalty
for the aggravated rape of a 16 year-old girl. But Mr. Cruz said that
decision implicitly left open the door for capital punishment for the rape
of children in referring to that victim as an adult.
"The damage inflicted on this 8-year-old girl will remain with her every
day of her life," Mr. Cruz said. "The Constitution does not prohibit
elected legislatures from making the determination that the most egregious
forms of child rape should permit the jury to impose the most serious
sentence."
But the prospect of capital punishment could lead to fewer abuses being
reported because most child sexual abuse is committed by someone known to
and even loved by the victims, said Judy Benitez, executive director of
Louisiana Federation Against Sexual Assault. The group is leading a
coalition of victims groups opposed to applying the death penalty for
child rapes, including the Texas Association Against Sexual Assault.
"These are extremely manipulative people," she said. "They say to the
child, 'If you tell, you're going to make the police come and take me
away, and then how is Mom going to pay the bills.' They put it very much
on the child."
The groups also argue that if the death penalty can be imposed for child
rape, it could make some offenders more likely to kill their victims to
prevent them from testifying, she said.
Aside from the moral arguments, David Bruck, executive director of the
Virginia Capital Case Clearinghouse at Washington and Lee Law School, said
Mr. Cruz and the lawyers for Louisiana face serious legal hurdles.
"The Supreme Court doesn't take very many easy cases, but this should be
one," he said. "The rape of a child is not the same as killing a child,
that's basically what the court said [in 1977]. Horrible as the crime is,
it is not equivalent."
Mr. Bruck said the court could strike down the Louisiana law and leave
Texas' statute intact because it more narrowly restricts cases in which
the death penalty could apply. A ruling is expected later this year.
(source: **************
The Limits of the Death Penalty
In recent decades, the Supreme Court has looked for ways to limit the
death penalty, but it hears arguments today in a case that could reverse
that trend and extend capital punishment to additional crimes. The court
should stand by its past rulings that murder is the only crime committed
by one person against another that can be punished by death.
The current case involves a horrific crime. Patrick Kennedy was found
guilty of raping his 8-year-old stepdaughter and was given a death
sentence. There appear to be questions about the strength of the case
against Mr. Kennedy, but his lawyers objection to the sentence, and the
issue before the Supreme Court, is that executing him would be
unconstitutional.
Since it reinstated capital punishment, the court has held that the Eighth
Amendments bar on cruel and unusual punishment prohibits applying it to
some defendants, such as the mentally retarded, and to certain crimes. In
a 1977 case involving the rape of an adult, Coker v. Georgia, the court
said "the death penalty, which is unique in its severity and
irrevocability, is an excessive penalty for the rapist who, as such, does
not take human life."
Since then, the court has repeatedly interpreted Coker as holding that the
death penalty cannot be applied in cases of person-on-person violence
other than murder or reckless disregard for life. It has barred it for
kidnapping and for some accomplices to murder. (The applicability of the
death penalty to mass crimes like espionage and treason is a separate
question.)
Louisiana thought it saw an opening in Coker, however, in cases of child
rape, which the decision did not expressly mention. The state passed a law
making rape of a victim younger than 12 punishable by death.
We believe capital punishment is always wrong and unconstitutional, but
there are more specific reasons not to affirm Mr. Kennedy's sentence. If
it did so, the court would be overturning its own well-settled precedents.
It would also be rejecting a nearly national consensus. Louisiana is one
of just a handful of states that punish child rape with death, and the
only one that does so for first-time criminals. No other Western nations
do that, and the few countries that do including Saudi Arabia and Egypt
are not ones to emulate.
If the court allows the death penalty for child rape, it would be opening
the door for the same punishment to be extended to other crimes. That
would be wrong, particularly now, when the growing number of cases of
innocent people being freed from death row is turning popular opinion
against capital punishment. The court should reverse Mr. Kennedys
unconstitutional sentence.
(source: Editorial, New York Times)