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.


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