North Carolina Reaction to Baze

April 21, 2008

News Update 04.21.08

North Carolina

The US Supreme Court’s decision last week in Baze v. Rees does not mean that executions will resume immediately here in North Carolina. There are two state-based cases that must be resolved – first, a suit by five inmates who allege that the Council of State acted improperly in approving a new lethal injection protocol, and second, a suit by the Department of Correction against the North Carolina Medical Board, which sought to sanction doctors who participated in executions.

To be sure, courts will be asked to consider whether the differences between the Kentucky and North Carolina protocols are constitutionally significant. The majority opinion spent a good bit of energy applauding Kentucky safeguards that are absent here in the Tarheel State, for example that someone is present in the execution chamber to directly monitor the inmate and his IVs. The BIS monitor briefly reared its ugly head in the majority opinion, only to be quickly dismissed as lacking in scientific and medical support as a means of determining unconsciousness. Wonder what the Council of State will have to say about that. Perhaps Justice Alito’s concurring opinion with regard to forcing doctor participation in lethal injection will have some role to play in the Medical Board case.

The Charlotte Observer urges the State not to rush back to the death chamber until reforms to prevent wrongful convictions and the execution of innocents have been implemented. The News and Observer takes things a step further.


Blog coverage of the Court’s ruling in Baze v. Rees:

I also note SCOTUSBlog’s follow-up series, which includes a conservative perspective and a liberal perspective on the Baze opinion, and this New York Times piece on Justice Stevens’ conversion to death penalty opponent.

Now that Baze has been decided, executions are sure to begin again in some states. Virginia has the earliest scheduled execution at the moment – Kevin Green on May 27th. New litigation has been filed in Mississippi, arguing that the safeguards applauded by the Court in Kentucky are absent from the Mississippi protocol, and therefore the execution of Earl Wesley Berry cannot proceed under Baze. Meanwhile, Florida has filed a motion to vacate the stay of execution granted to Mark Dean Schwab because it believes its protocol “more than satisf[ies]” the requirements of Baze. This morning, the Supreme Court lifted a number of stays and denied cert in several other cases.

On the same day it announced its ruling in Baze, the Supreme Court heard oral arguments in Kennedy v. Louisiana, which challenges the implementation of the death penalty for crimes other than murder, in this case, child rape. Reporting from Amnesty International (re: whether executing their attackers is in the best interests of children) and SCOTUSBlog (re: summary of the arguments and insight into the Justices’ likely opinions). Compilation of media coverage by StandDown. You can read the transcript of the argument here.

Breaking – Baze v. Rees Decided

April 16, 2008

Opinion here.

Says SCOTUSBlog:

In a widely splintered decision, the Supreme Court on Wednesday cleared the way for death-row executions to resume across the country, concluding that the most common method of lethal injection does not violate the Constitution. The final vote was 7-2 in Baze v. Rees (07-5439), although there was no opinion that spoke for five or more Justices.  The Court’s plurality adopted as a standard for assessing the validity of an execution method whether it poses a “substantial risk of serious harm.” It rejected the death row inmate’s proposal that the standard be “unnecessary risk.”

While the opinion appeared to leave open a chance that some further challenges could be made to the use of lethal drugs under a specific procedure in another state, it rejected a challenge to the method as used in Kentucky which is fairly close to the protocol used in 36 states and by the federal government.

Chief Justice John G. Roberts, Jr.’s plurality opinion said that a death-row inmate cannot win a challenge to an execution protocol “merely by showing a slightly or marginally safe alternative.”  Instead, there must be proof that the options available must prevent a “substantial risk of serious harm.”  A state is free to choose a procedure, Roberts wrote, if it is shown to be “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.”  The opinion then added: “If a state refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a state’s refusal to change its method can be viewed as ‘cruel and unusual punishment’ under the Eighth Amendment.”

11th Circuit Orders Callahan Execution

January 30, 2008

This morning, the 11th Circuit Court of Appeals lifted the stay of execution granted to James Callahan by a federal district court in Alabama in December. The two judges in the majority held that Callahan filed his lethal injection complaint too late, and refused to consider any of the constitutional issues he raised. In Alabama, inmates can choose their method of execution – lethal injection or the electric chair. The Court said that Callahan had two years from the date he selected lethal injection, July 31, 2002, to issue a challenge to that method.

In dissent, Judge Charles Wilson wrote that the clock cannot reasonably begin to run “until the prisoner knows or has reason to know the facts giving rise to his claim and the prisoner’s execution becomes imminent.” If the inmate were required to file his complaint years in advance, the protocol might change in the intervening years and the earlier litigation would have been a waste. Courts generally decline to rule on issues until they are ripe. It is also unclear how Callahan can be expected to have known in 2004 that the Supreme Court would grant cert on an issue in 2007 that they have not ruled on since 1879.

Callahan will now appeal to the United States Supreme Court. The Court has not allowed an execution since September of 2007 when Michael Richard was killed in Texas. Oral arguments were heard in Baze v. Rees, the Kentucky case which put executions on hold nationwide, on January 7th. A decision is expected in June.

Durham and Moore DAs Seek Death

January 9, 2008

News Update 01.09.08

North Carolina

Testimony continues in the trial of Lisa Greene.

In Durham, there is debate over whether prosecutors will be able to seek the death penalty against Jasmond Jevon “Catfish” Rogers for his role in a June drive-by shooting. The assistant district attorney failed to give the defense advance notice of his decision to seek death, as required by law. Giving notice only requires filing simple paperwork, but is important because without it the defense cannot gain access to special funds and resources necessary to a capital trial. Moving forward with a capital case in which the DA has not given proper notice means that either the defense will be ambushed (and have a great issue for appeal) or that the trial will be needlessly delayed while the defense conducts the investigation it would have done earlier had the DA complied with the law. Speedy justice requires timely notice.

Meanwhile in Moore County, prosecutors have been given the green light to seek death against Sherrod Nicholas Harrison. Harrison is one of five men accused of a September home invasion-homicide. The case is being closely watched by online hate communities because the victim was white and all of the defendants are black.

NC Policy Watch weighs in on what the Baze litigation means for North Carolina: “First, the debate places the spotlight on the inherent flaws in any capital punishment system. While a majority of the U.S. Supreme Court may not find it violative of the Eighth Amendment, there is no longer any hiding the fact that killing people is, even under the most ‘humane’ circumstances, a grisly business…Second and more broadly, the cases serve to point out the inherent contradictions of state sanctioned killing in the 21st Century. As more and more Americans appear to be coming to understand…capital punishment is (like slavery, torture, racism and many other once widely celebrated and now dead or dying institutions) a practice that fares worse and worse over time as more of the world comes to truly grasp what’s involved.”


Reactions to Baze are everywhere. Just a few: NY Times, Volokh Conspiracy, Washington Post, miscellaneous links from How Appealing here and here, plus coverage from PBS and NPR. And of course StandDown has herds of links here and here and here.

A New England Journal of Medicine editorial has thoughts on the proper role of doctors in executions – none. “Physicians and other health care providers should not be involved in capital punishment, even in an advisory capacity. A profession dedicated to healing the sick has no place in the process of execution…We believe that, like the anesthesiologists in the Morales case, all responsible members of the medical profession, when asked to assist in a state-ordered execution, will remember the Hippocratic Oath and refuse to participate. The future of capital punishment in the United States will be up to the justices, but the involvement of physicians in executions will be up to the medical profession.” (c/o StandDown)

Lethal Injection Arguments Heard

January 7, 2008

The Supreme Court heard oral arguments in Baze v. Rees this morning. You can listen here using Windows Media Player. The transcript (early version, some typos) is available here. SCOTUSBlog has some initial thoughts, as do the LA Times and the Washington Post.

It has been clear from the beginning that this case is not about the constitutionality of the death penalty overall. The question is whether lethal injection – specifically the protocol used in Kentucky – violates the prohibition on cruel and unusual punishment. In this morning’s arguments, the Court seemed more concerned with the three-drug cocktail used in lethal injections than with the efforts made by the State to ensure that the drugs are administered properly.

Justice Stevens, widely considered the most liberal justice, indicated that if the question is simply whether Kentucky has established sufficient safeguards to ensure that executions proceed as planned, the answer is yes. Justice Ginsburg alone seemed to take issue with parts of the protocol unrelated to the three-drug cocktail, asking why Kentucky ensures that qualified medical personnel are involved in the insertion of the IV but not the administration of the lethal chemicals or the direct monitoring of the inmate.

Other justices questioned why the second drug, pancuronium bromide, is necessary to the protocol. Pancuronium bromide paralyzes the inmate. If the first drug, a barbituate known as sodium thiopental, does its job, the inmate would essentially be in a coma and unable to move anyway. The third drug, potassium chloride, causes death by stopping the heart. It has been suggested that the only purpose of pancuronium bromide is to make the execution easier for those watching; should the first drug fail, the paralytic would prevent the inmate from expressing the tremendous pain an unanesthetized execution would cause a conscious person.

However, the alternative suggested by Baze, administering only the barbituate, has not been widely tested in humans. This method is commonly used to euthanize animals, but little evidence was presented in the lower courts about how much sodium thiopental would be required to kill a person, how long it might take, and what complications might occur. Perhaps the best Baze can hope for is that the Court will take up the suggestion put forward by Justice Souter and Justice Breyer – to send the case back for further review. For those eager to recommence executions, taking the time to gather more evidence in this case would enable the Court to resolve the issue more quickly than deciding the narrower Kentucky-only issue now and waiting for another inmate to litigate the drug issue from scratch.

Justice Scalia, predictably, found such an inquiry unnecessary. He asserted that there is no constitutional requirement that executions be painless, or even as painless as possible, and ridiculed those who are “quite willing to take a careful look” at capital punishment. An attorney for Kentucky replied that death penalty opponents have “no shortage of imagination” in finding flaws with capital punishment and lethal injection protocols. I think I’m supposed to be insulted.

The Court spent relatively little time discussing what standard is appropriate for determining whether a method of execution violates the Eighth Amendment. As always, it is anticipated that the outcome of the case will depend largely on where Justice Kennedy ends up. I have no idea where that will be, but given the wide range of concerns expressed by the Court, a decision by clear majority seems unlikely.

Looking Ahead to Baze v. Rees

January 2, 2008

News Update 01.02.08

North Carolina

Love Lived on Death Row screenings:

  • January 22 – Charlotte, 7 PM, St. Matthews Catholic Church
  • January 25 – Raleigh, 7 PM, St. Francis of Assisi
  • January 29 – Charlotte,7 PM, Duke Power Theater
  • March 27 – Asheville, 7 PM, Diana Wortham Theater


Thoughts and predictions for next week’s argument in Baze v. Rees from CCR and the Volokh Conspiracy:

  • Karl Keys (CCR): At least five justices will find that while lethal injection does not necessarily violate the Eighth Amendment ban on cruel and unusual punishment, it is possible for a particular lethal injection protocol to be unconstitutional. Where the line between acceptable and unacceptable lies is anybody’s guess. (See also Karl’s prediction for Mumia Abu-Jamal and others with cases to be decided in 2008.)
  • Orin Kerr (VC): While the four conservative judges will have little trouble reaching a decision, the remaining five will have a hard time figuring out how to solve the problem at hand. They are not doctors, and even doctors aren’t of one mind about how to carry out a painless execution. There will be no majority opinion, but the controlling opinion will allow these executions to go forward while suggesting safeguards states can use in future executions.

The New York Times has a profile of David Barron, the lawyer behind Baze v. Rees. Barron is under 30 (as attorneys appearing before the Supreme Court go, practically a fetus), and like all good public defenders, is a die-hard Red Sox fan. (c/o Harmful Error)

Love Lived on Death Row will be making its Chicago debut on January 12 at 8 PM in the Gene Siskel Film Theater. There will be a second showing at 6 PM on the 14th.

The state of the death penalty in Pennsylvania: fourth-largest death row in the nation, but only three executions since 1978 and some 50 inmates re-sentenced to less than death since 2000. Prosecutors and the state supreme court remain dedicated to keeping death row full. (c/o How Appealing)

In “Who Would Antonin Scalia Torture?”, Salon considers the relationship between lethal injection and torture, in light of the Supreme Court’s recent decisions on the latter topic.

The Seattle Times looks at gender bias in capital sentencing. Less than 1.5% of people on death row in the United States are women, but females are responsible for about 10% of homicides. Is it the fact of their gender or the nature of their crimes that makes the difference? (c/o CDW)

2007 Death Penalty Quick Facts for North Carolina

January 1, 2008

Total number of executions: 0

Total number of new death sentences: 3

Persons released from death row: 2

Persons no longer on death row for other reasons: 3

Other victories

Not half bad.

Court Asked to Reverse Council of State

December 4, 2007

News Update 12.04.07

North Carolina

Attorneys for five inmates on North Carolina’s death row have asked the Wake County Superior Court to review the Council of State’s February decision to approve a new lethal injection protocol. The complaint raises several issues: that the agency’s final decision was issued after the statutory deadline to do so had expired, that a member of the Attorney General’s Office engaged in ex parte communications with one or more members of the Council, that the Council ignored the valid opinion of the Administrative Law Judge, and that the Council failed to consider any of the evidence presented by the inmates. You can read the complaint here.


Kentucky has filed its brief in Baze v. Rees. The argument section of the brief begins, “Petitioners have been sentenced to death. Kentucky seeks to execute them in a relatively humane manner, and has worked hard to adopt such a procedure.” I was unaware that the constitutional standard is whether you did a decent job and tried real hard. For the record, at the end of its brief, Kentucky completely mischaracterizes the factual situation surrounding the BIS monitor in North Carolina. The federal court did not force DOC to use a BIS monitor, DOC bought one of their own volition and lied to the court about how it would be used. But I digress.

The US Supreme Court heard arguments in Snyder v. Louisiana this morning. The case revolves around racial discrimination in jury selection, but is more widely known due to the prosecutor’s comparison of the defendant to OJ Simpson, whom the prosecutor said had gotten away with murder. Snyder, a black man, was tried by an all-white jury after the prosecutor removed all eligible people of color from the jury pool.

Jerry Guerinot has had more clients sentenced to death than have been executed by Colorado, Connecticut, Idaho, Kentucky, Montana, Nebraska, New Mexico, Oregon, Pennsylvania, South Dakota, and Wyoming combined. The Guardian takes a look at his representation of Linda Carty, a British citizen on death row in Texas. The article notes that while Houston accounts for 1.3% of the US population overall, the city has produced 10% of our nation’s executions. (c/o CDW and Grits)

Texas recently marked the 25th anniversary of its first lethal injection.

Fake Science Lands Man in Prison for Life

November 20, 2007

News Update 11.20.07

North Carolina

Lee Wayne Hunt narrowly avoided the death penalty 21 years ago when he was convicted and sentenced to life without parole for the execution-style killing of a Fayetteville couple. The only forensic evidence against Hunt and his co-defendant were bullets found at the scene, which an FBI agent testified matched a box of bullets belonging to Hunt’s co-defendant. In 2003, the co-defendant, Jerry Cashwell, committed suicide in prison. His lawyer then revealed Cashwell’s confession that he acted alone and Hunt was not involved. In 2004, the FBI’s method of bullet matching was declared scientifically invalid.

Prosecutors say other evidence justifies Hunt’s continued stay behind bars. Among the witnesses who connected Hunt to the scene are a man who was rewarded for his testimony by not being punished for crimes including accessory to murder, drug crimes, weapons offenses, and probation violations. At a 2007 hearing, the other main witness against Hunt was prepared to say what really happened, but was silenced when the prosecution threatened to charge him with perjury. The judge at the hearing threatened to file bar charges against Cashwell’s lawyer, held that the State’s fake science was irrelevant to Hunt’s conviction, and refused to consider the testimony of Cashwell’s attorney. Hunt’s conviction was upheld. Today, the lawyer is under investigation by the North Carolina State Bar, but the State is not investigating why Hunt may spend the rest of his life behind bars for a crime he did not commit. Hunt is appealing to the North Carolina Supreme Court, but the Court is not required to hear the case.


The California Supreme Court has asked the state legislature to consider an amendment to its constitution, allowing the CASC to share the burden of reviewing death sentences with lower courts. California has the largest death row in the nation, in part because it takes so long to get through the appeals process. Observers note that the delay has as much to do with the shortage of lawyers as it does the backlog in the courts. Others question whether the ultimate punishment should be in the hands of anyone other than the state’s highest court.

Louisiana has filed its brief in Kennedy v. Louisiana, in which the U.S. Supreme Court will decide whether death is the appropriate punishment for child rape. Patrick Kennedy is currently the only person in the United States on death row for a non-homicide crime. Among others, Kennedy is supported by social workers, who fear that making the rape of a child a capital offense will encourage molesters to kill their victims. Click here for a review of what crimes are death-eligible in various U.S. jurisdictions.

Texas executed 180 people for murder between 2000 and 2006. In the same time period, 120 people were sentenced to probation for murder. Dallas County put twice as many murderers back on the streets as they did on death row. Often the question is not whether there is sufficient evidence to convict the killer, but how much society values the life of the victim. Equal justice, indeed. (c/o DPIC)

SCOTUSblog reports that Baze will be the very first case heard in the Supreme Court’s January term. Oral arguments will begin at 10 am on January 7, 2008.

The federal government has decided that a doctor banned from participating in lethal injections in Missouri – the only person in the entire country specifically prohibited from doing so – is the ideal person to administer lethal injections to federal inmates. Dr. Alan Doerhoff has been the target of more than 20 malpractice suits, is barred from practice in two hospitals, and was reprimanded by a state agency for lying to patients about his shady past. Good enough for government work.

Another Military Death Case

November 6, 2007

News Update 11.06.07

North Carolina

The colonel in charge of the investigation has recommended that Staff Sgt. Alberto Martinez should face the death penalty if convicted of killing two superior officers in Iraq in 2005. Although all those involved were part of the New York National Guard, the case is being handled at Ft. Bragg because its commanding general was in charge of ground forces in Iraq at the time of the killings.

Coverage of the recent speaking tour of exonerated death row inmates is here (Chapel Hill), here (Greenville), here (Raleigh), here (Washington), and here (Raleigh).


The petitioner’s brief in Baze v. Rees, the lethal injection challenge taken on by the Supreme Court, is available here. The brief begins with a history of capital punishment methods in the United States and Kentucky, and then reviews the lethal injection protocol and its pitfalls. At its core, the legal argument is that because the Eighth Amendment prohibits the unnecessary and wanton infliction of pain and the gratuitous infliction of suffering, states are required to avoid inflicting more pain than is necessary to cause death. Even if a method of execution could in theory be implemented in a humane manner, a constitutional line is crossed when the execution is carried out in an ill-conceived and haphazard manner which creates an intolerable risk of a torturous death. The brief suggests that lethal injection could be made constitutional if states changed the cocktail or took steps to ensure that inmates are properly anesthetized. The State’s brief is due December 3rd.

The Supreme Court has also granted cert in Arave v. Hoffman, an Idaho case which asks whether an attorney’s advice during plea negotiations can be so unreasonable as to constitute ineffective assistance of counsel, and what should be the remedy if it does. Maxwell Alton Hoffman faced the death penalty for killing a government informant. His court-appointed lawyer had never handled a murder case before and did not have current information on the state of death penalty jurisprudence. The lawyer advised Hoffman to reject a life-saving plea deal because he thought Idaho’s death penalty would soon be declared unconstitutional.

Amnesty International considers the state of capital punishment in the Middle East. To sum things up, Saudi Arabia executed a man over the weekend for witchcraft. Also, executions are on the rise in Iraq and Iran continues to execute children.


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