The Supreme Court decided Bucklew v. Precythe today, rejecting a death row inmate’s challenge to Missouri’s single-drug execution protocol. Challenges to lethal injection are now 0-for-3 in the Supreme Court, but the Court did not foreclose future litigation. To the contrary, it left the door open to further challenges, and so did nothing to break up the litigation logjam that has resulted in a de facto moratorium on executions in North Carolina. Continue reading
Tag Archives: lethal injection
There’s been quite a bit of criminal law news this past week:
1. The controversy over the Bowden case and its interpretation of life sentences continues. Governor Perdue has a new legal argument for not releasing the inmates who appear to be affected by the ruling, and the inmates are planning to test that argument in court. The News and Observer’s latest story is here.
2. Cindy Adcock, a professor at Charlotte School of Law, has a new article on SSRN that’s getting some attention. A summary of the article and a link to it are available here; the gist is that if and when all the issues surrounding North Carolina’s execution protocol are resolved, there will be an unprecedented wave of executions that will tax Governor Perdue’s clemency process. My impression is that she’s right that the de facto moratorium over the past few years has resulted in there being a large “backlog” of death row inmates who have completed post-conviction review and are awaiting execution dates — but I wonder if litigation under the new Racial Justice Act will move some of those cases out of the queue.
3. Also in the world of capital punishment: in the wake of the failed exectution of Romell Broom, Ohio has become the first state to adopt a single-drug execution protocol — inmates will be put to death by a massive overdose of anesthetic. Some death penalty critics have argued that such a protocol is more humane than using the three-drug cocktail that Ohio, like every other death penalty state, previously used. A Cleveland Plain Dealer article on this issue is here. (Hat tip: Sentencing Law & Policy.) The first inmate scheduled to die by the new protocol — not Mr. Broom — objects to what he argues is human experimentation.
4. New research suggests that antisocial tendencies may be identifiable in children as young as three, according to this Reuters article. So, if a defendant can show that his antisocial traits are hardwired, is that a mitigating factor on the theory that the defendant is less responsible for his crimes? Or an aggravating factor, on the theory that the defendant is more likely to be incorrigible? According to an Italian court, the former: as reported in this article, the court “cut the sentence given to a convicted murderer by a year because he has genes linked to violent behaviour — the first time that behavioural genetics has affected a sentence passed by a European court.” Does this seem like a viable argument in North Carolina?
5. Finally, a side benefit to social networking: it can give you an alibi when you’re wrongly accused of a crime.
It’s time to round up some news.
First, the News and Observer recently commented on President Obama’s failure to nominate any additional North Carolinians for the Fourth Circuit — a court on which Tar Heels are wildly underrepresented — despite several vacancies. Of course, the White House has been moving rather deliberately on judicial nominations in general, as discussed here.
Second, I’ve previously noted — here and here — the Willingham case, in which Texas may have executed an innocent man. The City of Corsicana has submitted its papers to the commission reviewing the case. A bit of commentary on the papers, and a link to the document itself, is available here.
Third, the effect of North Carolina’s sex offender laws on offenders’ ability to go to church is drawing national attention, as evidenced by this AP story.
Fourth, in light of North Carolina’ own litigation over lethal injection and the administration of the death penalty, readers may be interested in what’s happening in Ohio in the aftermath of the failed execution of Romell Broom. (Despite hours of trying, prison staffers were unable to get an IV line working, leading to the abandonment of the execution.) Apparently, the state is considering dramatic changes to its execution protocol, including a change in the combination of drugs used, a change in the method of injection (to intraosseous injection), etc. Sentencing Law and Policy is all over this issue; the most recent post, with links to earlier ones, is here.
Finally, another midwestern state making criminal law news is Indiana. An appellate court there recently ruled that a cheek swab for DNA is so minimally intrusive that it can be done without a warrant and on reasonable suspicion. A summary and critical analysis of the decision is here.
Category: Uncategorized | Tags: DNA, fourth circuit, lethal injection, news roundup, sex offenders, willingham
Several developments this week week have brought North Carolina much closer to resuming executions. The last execution in the state took place in August 2006. Since then, we’ve had a de facto moratorium, because of three related pieces of litigation. First, defense lawyers argued that lethal injection was a cruel and unusual method of execution. Second, defense lawyers argued that if lethal injection were constitutional at all, it could be so only if a physician were present to monitor the process. When the North Carolina Medical Board threatened to discipline any doctor who participated in an execution, the Department of Corrections filed suit against it, arguing that it was overstepping its statutory authority. Third, partly in response to the first two issues, the Department of Corrections revised its execution protocol, and defense lawyers argued that the revised protocol had not been properly approved by the Council of State.
The first issue was largely resolved by the United States Supreme Court in Baze v. Rees, 553 U.S. __ (2008), available here, which upheld Kentucky’s lethal injection protocol — a protocol similar to North Carolina’s. The second issue was largely resolved by the North Carolina Supreme Court earlier this month, when it ruled that the Medical Board could not discipline doctors for participating in executions. (I blogged briefly about that opinion here, and posted a link to the opinion itself.) That left the de facto moratorium in place principally by virtue of the litigation over the Council of State’s approval of the new protocol.
This week, two separate developments undercut that litigation. As the News and Observer reported here, the state Senate approved a bill that would make it unnecessary for the Council of State to approve execution protocols. (It would also create a new avenue for defendants to raise claims of racial discrimination, but that’s a separate topic, for a future post.) The House hasn’t considered the bill yet, but if passed, it appears likely to render the Council of State litigation moot. Totally independently, Wake County Senior Resident Superior Court Judge Don Stephens just ruled against the defense attorneys in that litigation. The News and Observer’s story is here. The ruling appears certain to be appealed, so the litigation isn’t over, but it has moved a step closer.
I’m omitting some details, and the overall picture isn’t quite as tidy as the above summary makes it seem, but the bottom line is that the de facto moratorium of the past several years appears to be nearing an end. A substantial number of cases have finished post-conviction review during the de facto moratorium, setting the stage for a possible series of executions in quick succession — at least to the extent that anything in the death penalty world happens quickly.
