Crime & Justice, Headlines, Human Rights, North America

RIGHTS-US: Execution Moratorium May Outlive High Court Ruling

Adrianne Appel

BOSTON, Feb 7 2008 (IPS) - The U.S. Supreme Court is unlikely to outlaw lethal injection, the United States’ main form of execution, when it rules on a test case this spring, but many states may continue their de facto moratoriums well into the future, amid ongoing legal battles about the issue in their own state courts.

In September 2007, the Supreme Court agreed to hear challenges to lethal injection as a method of execution brought by lawyers fighting for the lives of two Kentucky death row inmates. The lawyers charge that the three-drug cocktail creates a “significant and unnecessary risk of pain”. This would violate a constitutional ban on “cruel and unusual punishment”.

The Supreme Court’s decision to hear the case – the first time in a century that it has addressed the legality of an execution method – has resulted in a moratorium on executions in the U.S. Forty people have received stays of execution since September, according to the Death Penalty Information Centre.

“The conservative Supreme Court is not expected to prohibit the use of lethal injection when it rules in the spring,” Sarah Tofte, a researcher with Human Rights Watch, predicted. “It is not going to issue a ruling that would jeopardise what states can do in terms of lethal injections,” she told IPS.

But the Supreme Court is likely to issue general guidelines on how lethal injections should be carried out. This would still leave most of the current concerns about this form of execution unresolved.

Tofte added: “The Supreme Court will definitely not outlaw executions.”

Of the 50 U.S. states, 36 still have the death penalty and all but one of these rely on lethal injections. Most use the identical cocktail of drugs now under discussion in the Supreme Court. The first is an anaesthetic. The second paralyses the muscles. The third brings the heart to a stop.

Arguments against lethal injection have highlighted the fact that in many states this three-drug mixture has been outlawed for use in euthanising pets, out of concern that it causes suffering to the animals.

Human Rights Watch, particularly in its 2006 report authored by Tofte, has shed light on individual cases showing that usually non-medical personnel are used to administer the drugs.

Recent media coverage has highlighted how this has contributed to a number of botched executions, including in Florida and California where it was obvious that the condemned suffered pain before dying. In Florida in December 2006, Angel Diaz in obvious pain took 34 minutes to die as an inexperienced executioner fumbled to find the vein for the deadly injections.

“This is testing America’s appetite for the death penalty,” Tofte told IPS. “We don’t talk in detail about how we execute people.” But now U.S. citizens were being brought face-to-face with the question of whether there was such a thing as a “humane lethal injection”.

Deborah Denno, professor of law at Fordham University, agreed that the Supreme Court case on lethal injections was not likely to bring such executions to an end or silence the growing controversy about this form of state-administered death.

“No matter what the Supreme Court decides, there are going to be ongoing problems with lethal injection,” Denno told IPS.

“The questions about lethal injection cannot be contained. They will continue to swirl around in the courts. It is inevitable that there will be more problems and these will be publicised,” Denno said. “On an international level this country is going to be in the spotlight for having a death penalty and knowingly using a method of execution that causes suffering.”

Denno predicted that this would lead to more states declaring their own moratoriums on capital punishment.

Even before the Supreme Court became involved, 12 states had introduced informal moratoriums following legal challenges in their courts. Concerns have often been that the sodium pentothal anaesthetic might sometimes fail to work effectively and the inmate may die in excruciating pain as the final drug is administered.

In December 2007, the state of New Jersey became the first state since 1965 to abolish the death penalty.

Anxiety over lethal injection and innocent convictions has contributed to fewer people being executed in the U.S. in 2007 than at any time in the past 13 years – some 42. Fewer people have also received a death sentence, according to the Death Penalty Information Centre. Currently, there are 3,350 people awaiting execution on death row.

Brian Evans of Amnesty International has identified at least four states where there will be serious discussions on whether to abolish capital punishment – Nebraska, Maryland, Montana and New Mexico.

“The long-term trend is away from support for the death penalty,” Evans told IPS.

In January, Evans listened to lawyers presenting their arguments in the Supreme Court lethal injection case and came away in a state of shock. “My colleagues and I talked about how disturbing it was to hear high-powered lawyers and justices calmly and politely discussing the best way to kill someone,” he said.

Apart from this troubling issue which had been largely a secret for the past 30 years, there were others that might also come before the courts and play a role in bringing an end to capital punishment in the U.S. These included the “arbitrariness about who is sentenced to death and the fact that innocent people are being executed”, Evans said.

Since 1973, 126 people have been released from U.S. death row with evidence of their innocence, according to the Death Penalty Information Centre. Fifteen death row inmates have been released because of irrefutable DNA evidence, according to the Innocence Project.

It is this concern over wrongful convictions that was chipping away at support for capital punishment in such traditionally pro-death penalty states as Texas, said Steve Hall of StandDown Texas.

“I don’t want to paint too rosy a picture,” he told IPS. “I think Texas will be one of the last states to fundamentally change. But a lot of eyes are being opened due to the fact that innocent people have been sent to death row. The abolition movement is growing in Texas.”

This concern over judicial mistakes and evidence of corruption in the state’s legal system last year played a role in the state’s largest newspaper, the Dallas Morning News, reversing its 100-year-old editorial support for capital punishment.

“This board has lost confidence that the state of Texas can guarantee that every inmate it executes is truly guilty of murder,” the paper wrote.

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