Executions could resume today

UPDATE 2: After Georgia’s high court and the U.S. Supreme Court rejected last minute appeals, Lynd was executed. He was pronounced dead at 7:51 p.m. Tuesday at the Diagnostic and Classification prison in Jackson, Ga.

UPDATE: Mississippi inmate Earl Wesley Berry’s execution had been set for May 21, meaning that Georgie could now become the first state to carry out the death penalty since Baze v. Rees if the execution of William Earl Lynd goes forward at 7 p.m. today as planned. More from the AP.

The first executions since last fall - when the U.S. Supreme Court halted lethal injections which considering their constitutionality - could take place today and tomorrow.

Today Mississippi death row inmate Earl Wesley Berry could face his death sentence for his kidnapping and murder conviction. Tomorrow Georgia could execute its first prisoner - Earl Lynd, who was convicted of murder - since the Supreme Court’s de facto moratorium on executions pending the decision in Baze v. Rees. Last month the Court ruled that the three-drug lethal injection combination used in Kentucky and most other states did not constitute cruel and unusual punishment.

Last-minute appeals are underway in both cases, and pro- and anti-death penalty protesters are set to hold demonstrations in both states.

Supreme Court lifts execution stays

Executions may resume in a host of states after the U.S. Supreme Court denied the appeals of death row inmates from Mississippi, Alabama and Texas today - a move that came days after the Court’s fractured decision in Baze v. Rees that the method of lethal injection used in Kentucky (as well as in the other states) does not violate the constitution.

The appeal denials leave inmates Thomas Arthur of Alabama, Earl Wesley Berry of Mississippi and Carlton Turner of Texas facing possible imminent execution. Capital sentences are free to resume in other states as well, but most do not have immediate executions scheduled.

Death penalty takes center-stage at the Supreme Court

Today the U.S. Supreme handed down one of the most anticipated opinions of the term, holding in a plurality decision that Kentucky’s use of a three-drug “cocktail” does not constitute “cruel and unusual” punishment in violation of the Constitution’s Eighth Amendment, despite the fact that one of the drugs may render the inmate unable to indicate if he or she is suffering pain. The decision in Baze v. Rees can be found here.

What is clear - even among the six justices whose opinion and concurrences protected the state’s ability to continue using the execution method - is that the decision seems to complicate, rather than clarify, the standard for Eighth Amendment death penalty analysis.

The decision presented a “battle of the standards” of sorts. Chief Justice John G. Roberts, Jr., who authored the opinion joined by Justice Anthony Kennedy and Justice Samuel Alito, said the standard should be whether an execution method creates a “substantial” or “objectively intolerable” risk of serious harm.

Justice Clarence Thomas, in a concurrence joined by Scalia, offered a different test: an execution method can only be found violative of the Eighth Amendment if is “deliberately designed to inflict pain.”

Justice Breyer set forth another standard of whether the method creates a “significant risk of unnecessary suffering.”

Justice John Paul Stevens, who concurred in the judgment, but was highly critical of the way the decision was rendered, wrote that the Court did more to further the debate over the death penalty than to clear it up.

“I assumed that our decision would bring the debate about lethal injection as a method of execution to a close,” Stevens wrote in his concurrence. “It now seems clear that it will not. . . . Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, [but] also about the justification for the death penalty itself.”

The Court also heard oral arguments in a case considering whether the death penalty as punishment for child rape constitutes cruel and unusual punishment. I’ll have more on that coming up.

Court ponders constitutionality of death penalty for child rape

Wednesday the U.S. Supreme Court is set to hear arguments on whether the death penalty can be used for a non-homicide offense - namely child rape - or whether such a punishment constitutes unconstitutionally cruel and unusual punishment in Kennedy v. Louisiana. I’ll bring you the highlights from the arguments on this blog and on the web edition of Lawyers USA.

Meanwhile, ABC News has a preview of the case here.

Nebraska to appeal electrocution ban to high court

Could the U.S. Supreme Court - which is currently pondering whether the effects of lethal injection drugs used in executions constitute cruel and unusual punishment - also consider whether electrocution is unconstitutional?

That is what Nebraska Attorney General Jon Bruning is hoping for, according to a report by the Associated Press. Bruning plans to appeal a decision by the Nebraska Supreme Court, which refused to rehear a decision that electrocution violates the Eighth Amendment.

The only method of execution in the state was electrocution at the time the February ruling came down, so while the death penalty is still technically in effect in the state, there is currently no constitutional means to carry it out.

“Nebraskans overwhelmingly support the death penalty,” Bruning said yesterday. We’ll do everything possible to ensure the sentences of the state’s worst murderers are carried out.”

The Supreme Court is set to hand down its ruling on Baze v. Rees, the lethal injection case, before this term wraps up.

HT: How Appealing

Virginia executions halted

Virginia Gov. Tim Kaine has halted all executions in the state until the U.S. Supreme Court hands down a decision in Baze v. Rees, which considers whether the three-drug “cocktail” used for lethal injections constitutes cruel and unusual punishment.

Kaine announced the statewide halt as he announced the stay of execution of Edward N. Bell, who was convicted of killing a police officer in 1999 and sentenced to death.

If Kaine had not stayed Bell’s execution, it is unlikely that he would have faced the death chamber before a decision in the Supreme Court case is reached. The Court has delayed every scheduled execution in the country since the granting cert in Baze last fall. A decision is expected before the end of the term.

(WaPo)

Court overturns death row conviction

The Supreme Court, in the first opinion penned by Justice Samuel Alito this term, today reversed the conviction of a black Louisiana death row man who appealed the prosecutor’s use of peremptory strikes to remove all the black jurors from his trial. The opinion, Snyder v. Louisiana, can be found here. [PDF file]

Allen Snyder was convicted of stabbing his estranged wife and her male companion, killing the man. The prosecutor in the case struck five black jurors, resulting in an all-white jury. In the case of one juror, the prosecutor claimed he was removed because he expressed concern about missing work at a school, although the school’s dean was called and assured the court that missing a few days wouldn’t be a problem.

Evaluating the case under the standard established in the Court’s decision in Batson v. Kentucky, Alito wrote of the prosecutor’s reason for striking this juror: “the implausibility of his explanation is reinforced by the prosecutor’s acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious as” that of the back juror.

The decision was not entirely surprising, given the comments from the justices during oral arguments in the case that suggested the prosecutor sought to inflame racial tensions by mentioning the O.J. Simpson trial, and hinted that the trial court seemed to be asleep at the wheel during all of it.

Justice Clarence Thomas wrote a dissent, joined by Justice Antonin Scalia, arguing that the Court should not substitute its own judgment for that of the trial court, which should be given strong deference.

Scalia on ’smacking’ and other torture techniques

If a major U.S. city were in danger of an imminent terrorism threat, and authorities had a suspect in custody, Justice Antonin Scalia has no problem with the notion of roughing the guy up a bit to get some information out of him.

As the debate over the Bush Administration’s use of aggressive interrogation techniques, such as waterboarding, reaches a crescendo in Washington, Scalia is weighing in with his thoughts on torture.

“Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?” Scalia asked during a BBC interview. “It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game.”

If his scenario sounds a bit familiar, you’ve probably seen the Fox television show “24.” And Scalia is apparently a fan. Last year, Scalia said he believed the torture techniques used by show’s fictional terrorism stopper Jack Bauer would be justified if the city of Los Angeles were in peril to save “hundreds of thousands of lives.”

(He’s probably as disappointed as the rest of the show’s fans that the delay caused by the just-ended writers’ strike means the series will likely not return until 2009.)

In the BBC interview, Scalia also brushed aside criticism by Europeans of the use of capital punishment in the States, saying if the issue was left up to the European people, they’d have the death penalty too.

“If you took a public opinion poll, if all of Europe had representative democracies that really worked, most of Europe would probably have the death penalty today,” the justice said. “There are arguments for it and against it. But to get self-righteous about the thing as Europeans tend to do about the American death penalty is really quite ridiculous.”

Court considers another death penalty stay

UPDATE 2: Just before he was to be executed, the U.S. Supreme Court granted Callahan’s stay.

UPDATE: As of the close of business for DC Dicta (about 5:30 p.m.) no order has come down from the Supreme Court.

Today Alabama death row inmate James Harvey Callahan could be executed by lethal injection. That is, unless the U.S. Supreme Court steps in and grants his request to stay the execution pending the court’s decision in Baze v. Rees, which challenges whether the current three-drug combination used in lethal injection executions amounts to cruel and unusual punishment (Lawyers USA subscribers can read the archive story on oral arguments in the case here).

On Dec. 14, U.S. District Judge Keith Watkins stayed the execution of Callahan, who was convicted of kidnapping, raping and killing a college student in 1982, until the high court ruled in Baze. But yesterday the 11th Circuit Court of Appeals lifted the stay, clearing the way for Callahan to be executed today. Yesterday, Callahan petitioned the U.S. Supreme Court to stay the execution, and the Court could rule at any moment.

More updates to come.

Baze v. Rees: what will the justices do?

Today’s oral argument in Baze v. Rees, which promised to consider the constitutionality of a three-drug cocktail used in executions in Kentucky and nearly every other death penalty state, left court watchers not only unsure as to which way the Court would rule.

It left them wondering if the Court would even get to the broad constitutional question at all, or would it simply - or not so simply - hand down a limited ruling that would leave the door open for future challenges.

The justices themselves seemed to openly struggle with what to do from the bench today:

Do they hand down a ruling deciding once and for all whether the method amounts to cruel and unusual punishment after a careful comparative analysis with alternative methods, as Justice David Souter seemed to recommend?

Do they decide that since, as the petitioner conceded, the three-drug method can be administered constitutionally, that there is no problem if the record shows that Kentucky uses adequate safeguards, as Justice John Paul Stevens pointed out?

Or should they reject the challenge altogether to stave off the limitless challenges that death penalty opponents will launch if the Court opens the door even an inch on the issue, as Justice Antonin Scalia suggested?

[More after the jump]