Supreme Court deliberation puts death penalty on hold around the South

The U.S. Supreme Court is halting executions by lethal injection until deciding whether the practice is cruel and unusual punishment prohibited by the 8th Amendment. Executions in Kentucky, Florida, Tennessee, Georgia, Alabama, Mississippi, and Arkansas are effectively on hold until a Kentucky case is decided.

The current de facto death penalty moratorium can be traced back to November of 2006, when the Kentucky Supreme Court ruled that the procedure is not cruel and unusual:

While conceding that the chemicals used to execute death row inmates in Kentucky might cause needless pain, the state's Supreme Court ruled yesterday that using them did not violate the Constitution's prohibition on cruel and unusual punishment.

"Conflicting medical testimony prevents us from stating categorically that a prisoner feels no pain," Justice Donald C. Wintersheimer wrote for the unanimous court. "The prohibition is against cruel and unusual punishment and does not require a complete absence of pain."

In September, the U.S. Supreme Court agreed to hear the case on appeal:

The Supreme Court agreed yesterday to hear a Kentucky case that challenges the constitutionality of the mix of drugs used in lethal injections.

This will be the first time the high court will consider whether such injections violate the Eighth Amendment of the Constitution prohibiting cruel and unusual punishment.

The decision to hear the case is likely to have an immediate impact beyond Kentucky, said Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit organization based in Washington.

"Virtually all executions are by lethal injection," Dieter said. "It will at least hold up all executions in the country for a time and may require broad revisions in the law."

A week earlier, a federal judge blocked executions by lethal injection in Tennessee:

A federal judge on Wednesday blocked next week's scheduled execution of a prisoner in Tennessee, ruling that newly revised lethal injection procedures were unconstitutional.

Judge Aleta A. Trauger of Federal District Court here ruled that the state cannot execute the prisoner, Edward J. Harbison, 52, because Tennessee's use of a three-drug lethal injection would present "a substantial risk of unnecessary pain."

Facing South previously reported on the disturbing inconsistencies in Tennessee's "newly revised" lethal injection procedures, which instruct the executioner to "engage the automatic rheostat" (a rheostat controls the voltage flowing to an electric chair), direct the facility manager to disconnect the electrical cables in the rear of the chair before allowing a doctor to check whether the lethal injection was successful, require shaving the condemned inmate's head, and require fire extinguishers to be on hand.

In an even more bizarre twist, Tennessee's Attorney General issued an opinion last week that the electric chair cannot be used as a "backup" method of execution unless requested by the condemned inmate:

Tennessee cannot currently use the electric chair on prisoners unless they chose that method of death, the state attorney general said Tuesday in a written opinion.

Prosecutors have been calling on the state to use the electric chair as a back-up after a U.S. District Court in September found Tennessee's lethal injection procedures to be unconstitutional.

But in his six-page written opinion, state Attorney General Bob Cooper said that the law "does not allow substitution based on rulings of a federal district court or a state trial court." The law says that the chair back-up is triggered only if the Tennessee Supreme Court or the U.S. Supreme Court find or let stand rulings that hold lethal injection unconstitutional, the opinion said.

Along with the previous ruling against lethal injections, this effectively leaves Tennessee without any approved method of carrying out the death penalty. (Ironically, in September a Tennessee inmate requested death by electrocution, the first use of the electric chair in Tennessee since 1960.)

Last week, the U.S. Supreme Court stayed an execution in Florida hours before the condemned inmate was to be put to death:

A Florida death row inmate has been granted a stay of execution by the US Supreme Court in an action that offers further evidence that a de facto national moratorium on executions is in place.

The stay, announced Thursday afternoon, came four hours before Mark Dean Schwab was scheduled to be executed by lethal injection at 6 p.m.

Lawyers for Mr. Schwab asked the justices to intervene in light of the Supreme Court's decision in late September to hear a Kentucky case challenging that state's use of a three-drug protocol to carry out executions by lethal injection.

The Schwab case represents the latest showdown over whether pending executions should be postponed until after the Supreme Court has heard and decided the Kentucky case, Baze v. Rees.

In late October in Alabama, a federal appeals court blocked the execution of a terminally ill prisoner:

A federal appeals court panel unanimously ordered a stay of execution on Wednesday for a terminally ill prisoner who was scheduled to die by lethal injection in Alabama on Thursday.

Lawyers representing the prisoner, Daniel L. Siebert, 56, filed an appeal with the United States Court of Appeals for the 11th Circuit in Atlanta after Judge Mark E. Fuller of Federal District Court in Alabama refused to stop his execution. Defense lawyers said the drug mixture used by the state could interact with Mr. Siebert's cancer medications and cause excruciating pain.

The three-judge appeals panel, following a pattern set by other courts in recent weeks, said the execution would have to wait until the Supreme Court decided in the coming months whether lethal injections violated Eighth Amendment protection against cruel and unusual punishment.

Alabama Republican Gov. Bob Riley made an unsuccessful and bizarre argument for allowing the execution to proceed, claiming the state had changed its procedures to insure a painless death:

Officials said those changes largely amounted to checking whether a condemned prisoner was conscious after anesthesia had been administered by calling the prisoner's name, brushing a finger against the eyelashes and pinching an arm. The state did not change the chemicals or the order in which they are administered, said Brian Corbett, a public information officer with the Alabama Department of Corrections.

Georgia's State Supreme Court is also blocking executions:

For the second time in four days, the Georgia Supreme Court on Monday ordered a stay of execution for a condemned prisoner, citing the United States Supreme Court's decision to review the constitutionality of lethal injection as a method of execution.

The prisoner, Curtis Osborne, who was sentenced to death for killing two people in 1991, had been scheduled to die on Oct. 23 by lethal injection.

His execution will probably be delayed until the Supreme Court issues its ruling on lethal injection, expected next spring.

The U.S. Supreme Court has also intervened in Mississippi:

The Supreme Court halted an execution in Mississippi on Tuesday, less than an hour before the convicted killer was scheduled to be put to death by lethal injection.

The last-minute reprieve for Earl Wesley Berry is the third granted by the justices since they agreed late last month to decide a challenge to Kentucky's lethal injection procedures. Tuesday's order was the latest indication that most, if not all, executions by lethal execution will be halted at least until the justices decide the Kentucky case.

Arkansas executions are also on hold:

Attorney General Dustin McDaniel will not seek to lift the court-ordered stays of any executions until the U.S. Supreme Court rules on a Kentucky lethal injection challenge, a spokesman for the office said Wednesday.

The announcement came a day after the nation's highest court stayed a Mississippi execution about an hour before it was scheduled, and a federal judge in Little Rock cited the Kentucky case in granting condemned killer Don William Davis' request to stop his scheduled Nov. 8 execution.

[..]

"Although the Supreme Court still has not specifically said so, the attorney general believes the (Mississippi) ruling sends the clear signal that the majority of the court intends to stay all executions until the Kentucky case is decided," [Gabe Holmstrom, a spokesman for Attorney General Dustin McDaniel] said.

Gov. Mike Beebe's spokesman Matt DeCample said Wednesday that the governor supports the attorney general's decision.

The U.S. Supreme Court is expected to hear the Kentucky lethal injection case in January and issue a ruling in the summer. The way the court is currently stacked, it is difficult to imagine a finding that lethal injections are cruel or unusual.

But, a ruling last year allowed inmates to challenge lethal injections on 8th Amendment grounds, sending mixed signals but opening the door for the current appeal. On the other hand, the court refused to block a Texas execution just hours after agreeing to hear the Kentucky case.

In addition to questions about the constitutionality of death by lethal injection, in late October the American Bar Association renewed its call for a death penalty moratorium on other grounds:

The American Bar Association said on Monday it was renewing its call for a nationwide moratorium on executions, based on a three-year study of death penalty systems in eight states that found unfairness and other flaws.

The lawyers' group said its study identified key problems, such as major racial disparities, incompetent defense services for poor defendants and irregular clemency review processes, making those death penalty systems operate unfairly.

Facing South reported on the ABA study earlier this year, and on an investigative report by McLatchy Newspapers into serious problems with death penalty cases around the South.