Wednesday, October 31, 2007

Death Penalty Moratorium

On this All Hallows' Eve, there doesn't seem to be much doubt left that we are now in a nation-wide moratorium concerning the death penalty in the U.S.

Justices Stay Execution, Signal to Lower Courts:

WASHINGTON, Oct. 30 — Moments before a Mississippi prisoner was scheduled to die by lethal injection, the Supreme Court granted him a stay of execution on Tuesday evening and thus gave a nearly indisputable indication that a majority intends to block all executions until the court decides a lethal injection case from Kentucky next spring.

The moratorium will probably stay in place until "the court decides the Kentucky case, Baze v. Rees, which will be argued in January. The issue in that case is not the constitutionality of lethal injection as such, but rather a more procedural question: how judges should evaluate claims that the particular combination of drugs used to bring about death causes suffering that amounts to cruel and unusual punishment, in violation of the Eighth Amendment."

Which basically is the constitutionality of lethal injection protocols. I've written about this case here and here, and this latest action merely solidifies the prevailing wisdom that until the court decides Baze, executions will stop until probably the summer of '08.

It also raises the question of how or what the court will rule. Clearly, this is not an anti-capital punishment court, and the constitutionality of executions themselves is not on the table. But what may come from this is guidance and clear standards that states must follow if they are going to use lethal injection as the primary method of capital punishment.

As it stands now, and was illuminated last summer in a brilliant piece by Elizabeth Weil in the NYT (click here), each state has its own execution protocols, most of which differ from state to state, and most of the protocols are so random and capricious the very existence of such dichotomous methods would meet the definition of a violation of the 8th amendment.

Though neither side in the capital punishment debate is likely to be pleased with the final ruling, only good can come from this case. Provided the court doesn't completely toss out lethal injection in total (a victory for those against the d.p.), then a decision providing clear guidance to the states about how to carry out executions in ways not prohibited by the 8th amendment would be victory for pro-d.p. advocates).

If we are to have executions in this country, we should do so in the most uniform and humane way, across the board. That question should be settled by next summer.

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