Lethal injection moratorium inches closer

 
Timeline
Sources: Death Penalty Information Center, Stateline.org reporting
What was scheduled to be a busy week in the nation's death chambers instead has offered the strongest evidence to date that a moratorium on lethal injection is materializing across the country - even as a U.S. Supreme Court justice suggested that some executions should go on.

Georgia last night (Oct. 18) became the 17 th state where executions by lethal injection effectively are on hold. Reversing its own decision of earlier this week, the state Supreme Court granted a late stay of execution to convicted murderer Jack Alderman, who was scheduled to die at 7 p.m. Friday (Oct. 19).

It marked the third time this week that a court has delayed a lethal injection with little time to spare.

The U.S. Supreme Court on Wednesday (Oct. 17) intervened in a Virginia case and issued a stay to killer Christopher Scott Emmett - four hours before he was scheduled to die at the Greensville Correctional Center in Jarrett , Va.

In Nevada on Monday night (Oct. 15) , the state Supreme Court granted a stay to murderer William Castillo only 90 minutes before he was set to die, even though Castillo himself did not appeal the punishment and later expressed disappointment that he was not put to death. The American Civil Liberties Union of Nevada brought the case.

Arkansas and Ohio also were scheduled to execute prisoners using lethal injection this week, but earlier court decisions delayed those executions as well.

The rush of activity follows the U.S. Supreme Court's decision on Sept. 25 to hear Baze v. Rees , a case brought by two Kentucky prisoners who argue that lethal injection - as it is carried out by 36 states - amounts to cruel and unusual punishment in violation of the Eighth Amendment. (See related story: Lethal injection goes on trial, but goes on )


The high court's decision last month to enter the debate over lethal injection has had an immediate chilling effect across the country, as lawyers for death-row prisoners have argued that states should not carry out death sentences using a method that may be ruled unconstitutional. Executions in Alabama , Arizona , Arkansas and Texas were suspended after the Supreme Court took up the Kentucky prisoners' challenge, and Georgia, Virginia and Nevada joined those states this week.


Speaking directly to the possibility of a nationwide moratorium on lethal injection, Supreme Court Justice Antonin Scalia on Tuesday cautioned that stopping all executions by that method wasn't the high court's intention when it agreed to hear
Baze v. Rees . Just because the justices agreed to take on the case, Scalia said, doesn't necessarily mean that a moratorium should ensue.

But Scalia's words did little to stave off the stays of execution this week.

Overall, 17 states now have governor-imposed or court-ordered holds on lethal injection: Alabama, Arizona, Arkansas, California, Delaware, Florida, Georgia, Kentucky, Maryland, Missouri, Nevada, New Jersey, North Carolina, Ohio, Tennessee, Texas and Virginia, according to the Death Penalty Information Center , which opposes capital punishment.


Lethal injection was placed on hold in 10 of those states before the Supreme Court agreed to hear
Baze v. Rees , underscoring the legal uncertainty that has surrounded the procedure for much of the past two years.

Indeed, only one state where lethal injection is not yet on hold - Mississippi - has scheduled an execution by that method before next spring, when the Supreme Court is expected to rule in Baze v. Rees , according to the Death Penalty Information Center, which maintains an updated list of upcoming executions . Mississippi is slated to execute Earl Wesley Berry on Oct. 30.

Georgia , meanwhile, has another lethal injection set for Oct. 23, but last night's stay by the state high court called the likelihood of that execution into question.

On Tuesday, Scalia disagreed with the 8 th U.S. Circuit Court of Appeal's decision to stay the execution of Arkansas death-row inmate Jack Harold Jones Jr., who was scheduled to die that day.


Scalia, dissenting from the Supreme Court majority , wrote that the circuit court's opinion was "based on the mistaken premise that our grant of certiorari in
Baze v. Rees … calls for the stay of every execution in which an individual raises an Eighth Amendment challenge to the lethal injection protocol."

Granting certiorari means the Supreme Court has agreed to hear a case.

"The grant of certiorari in a single case does not alter the application of normal rules of procedure," Scalia wrote.

Legal experts said Scalia's statement gave a good indication of his personal views, but did not necessarily signal that a national moratorium would be averted.


"The fact that it's a dissent says more than anything. It suggests that a majority of the court disagrees with that perspective," said Bryan Stevenson, a law professor at New York University and executive director of the Equal Justice Initiative , a nonprofit legal clinic.


In the meantime, lower courts already have begun to issue stays of execution on their own, Stevenson said, pointing to the Nevada Supreme Court's decision this week, as well as a decision by the Texas Court of Criminal Appeals earlier this month.


Yesterday's opinion by the Georgia Supreme Court affirmed that assertion.


The same court rejected Alderman's appeal earlier this week, claiming that the U.S. Supreme Court had "not yet indicated that, in cases in this posture, all executions by lethal injection should be stayed," according to the earlier court
opinion .

Wednesday's stay of execution by the U.S. Supreme Court in Virginia , however, appeared to change the Georgia justices' minds.


The same deadly recipe for lethal injection now being questioned in Baze v. Rees is used in 36 states of the 38 states that allow the death penalty. New Jersey uses a different chemical cocktail to carry out lethal injections, while Nebraska carries out executions solely by the electric chair - the only state in the country to do so.


The commonly applied three-drug lethal injection process works like this: First, a sedative called sodium thiopental is administered through an IV, rendering the inmate unconscious. Then a paralyzing agent named pancuronium bromide stops the breathing muscles, and finally a dose of potassium chloride (used, among other things, as road salt) stops the heart.

While chemical execution was adopted as a more humane alternative to the gas chamber, electric chair, firing squad or gallows, it also has stirred discord following reports of botched executions and reports questioning whether prisoners are in pain.

 
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