death penalty oral arguments at SCOTUS

Go to the link for "interactives" toward the bottom on the right. I thought I was putting a link to the arguments themselves, but I clicked on my link above and it took me to the article. Anyone know how to get the audio link directly?

Here's a link for oral arguments http://www.oyez.org
But it looks like they're about a month behind.

This should be the Link.

In my experience, it is quicker to review the transcripts on the SCOTUS site. I believe I have seen them up the next day or even the same day.

Robert thanks for posting the audio-- as the site says, it is a rare same day release.

JAS

Yes, thank you, Robert - that's what I was trying to do and couldn't.

Is anyone else occasionally hearing "the three judge protocol" in this, and not "the three drug protocol?"

I know there are some three judge panels likely to put you to sleep, but death? really?

I just finished listening to the full presentation. Not surprisingly, Souter, Ginsberg and Stevens reveal their anti-death penalty philosophy by suggesting that there should be some sort of standard that requires constant comparative analysis of an execution protocol to see if there is anything less likely to cause pain. Scalia immediately noted that the anti-death penalty advocates would love that test, as it would simply lead to constant litigation and the effective end to the death penalty.

Scalia argues that there should be some sort of more principled test, such as whether there is a substantial risk of unnecessary and wanton pain. He (or maybe Alito) wondered aloud where we get the notion out of the 8th Amendment that punishment should not have any pain.

One of the better arguments raised by the State involved looking at the standard applied to confinement. In that realm, the 8th Amendment was not raised if the pain arose through mere negligence or mistake. If a different standard were adopted, we would soon see lawsuits by inmates in prison, seeking confinement that had no pain involved.

All of this points out the absurdity of the original claim. The State's argument, much more politely than other have said, points out that the anti-death penalty crowd is just looking for a back door method for stopping the death penalty. Their hope is for a new test that will guarantee years of litigation.

Best question by a judge, was Scalia's, asking the anti-death penalty lawyer whether death by shooting, hanging or electrocution created a substantial risk of pain. He never got a straight answer. Of course not.

My prediction: 5-4, upholding the protocol used in Kentucky.

Does Souter's desire to send the case back reveal that Souter may feel he does not have enough votes to carry the day? Or is it part of a Machivellian scheme to prolong the de facto moratorium?

[I sound like I'm on the McLaughlin group.]

My vote for best quote.

I was left thinking remand is not going to happen and changes will not either. Maybe the Court will give recognition to the practicing State's evolving interest in using the best protocol. The cream would be if Justice Kennedy would agree that the defense has failed to make an adequate case. Wish for 6-3, expect 5-4.

JAS

I personally loved when Scalia insisted that historically the 8th Amendment sought to prevent torture. "Wanton."

Yep, when they got into the scrap over the wording of the Constitution, I began to wonder if the advocate knew who he was talking to!!! Enjoyed the CJ holding him accountable at the beginning also. But all counsel did very well even with the mispeaking by the justices and other counsel. It was wonderful to listen to some piercing questioning made in gentle tones.

JAS

I thought "The warden and the deputy warden know the difference between someone whose eyes are closed, and is asleep, and someone who is awake and screaming" was a pretty comical comeback to the litany of questions about whether the staff onhand were really qualified to determine whether the execution method was properly carried out.

Roy Englert and Justice Scalia are absolutely right, this is a back door method to try to eliminate the death penalty, punishment which has already been held constitutional in numerous forms and fashions, even though limited to certain individuals. Next, anti-DP critics will say that it's disproportionately applied to people over the age of 18 and in good mental health and therefore unconstitutional. As long as people are opposed to the DP, they will find some avenue to attack its application.

I was bothered by the constant insinuation that "phlebotomists" are somehow unqualified to perform as part of the execution team. Justice Ginsburg kept asking about the unqualified personnel and seemed to refuse the idea that anyone other than an M.D. could possibly place an i.v. Certainly in her lifetime she's had an i.v., NOT done by a doctor.

No one wants a doctor to insert an IV!! Nurses and phlebotomists who practice daily are much better at it. On several occasions in three different countries when doctors messily failed to get IVs into me, they called the nurses (who managed without much difficulty). It hurts less when nurses do it too.

JAS

That is a trap, and Justice Ginsberg knows it.

If SCOTUS opines that a doctor or certain other medical professionals be involved in lethal injection, then death penalty abolitionists in the medical community will -- if they have not already -- get professional licensing entities to hold that participation in an execution is unethical and/or grounds for having one's license to practice medicine withdrawn, leaving states with a "legal" mechanism for executions that cannot actually be put into practice.

. . . is here

Lethal injection issue divides Supreme Court

By MARK SHERMAN
Associated Press

WASHINGTON � The Supreme Court appeared divided today over whether the drugs commonly injected to execute prisoners risk causing excruciating pain in violation of the Constitution.

Several justices indicated a willingness to preserve the three-drug cocktail that is authorized by three dozen states that allow executions. Such a decision would allow lethal injections, on hold since late September, to resume quickly.

Any decision could have a major impact in Texas, which executes more inmates than any other state.

Justice Antonin Scalia said states have been careful to adopt procedures that do not seek to inflict pain and should not be barred from carrying out executions even if prison officials sometimes make mistakes in administering drugs. "There is no painless requirement" in the Constitution, Scalia said. Chief Justice John Roberts and Justice Samuel Alito also indicated their support for the states' procedures.

Other members of the court, who have raised questions about lethal injection in the past, said they are bothered by the procedures used in Kentucky and elsewhere in which three drugs are administered in succession to knock out, paralyze and kill prisoners.

The argument against the three-drug protocol is that if the initial anesthetic does not take hold, a third drug that stops the heart can cause excruciating pain. The second drug, meanwhile, paralyzes the prisoner, rendering him unable to express his discomfort.

"I'm terribly troubled by the fact that the second drug is what seems to cause all the risk of excruciating pain, and seems to be almost totally unnecessary," said Justice John Paul Stevens.

Justice Anthony Kennedy, who often plays a decisive role on the closely divided court, gave little indication of his views.

The case before the court comes from Kentucky, in which two death row inmates are not asking to be spared execution or death by injection. Instead, they want the court to order a switch to a single drug, a barbiturate, that causes no pain and can be given in a large enough dose to cause death.

At the very least, they are asking for tighter controls on the three-drug process to ensure that the anesthetic is given properly. A decision should come by late June.

Justice Stephen Breyer seemed to capture the discomfort of the court, which has upheld the constitutionality of capital punishment.

"There is a risk of human error generally where you're talking about the death penalty, and this may be one extra problem," Breyer said. "But the question here is can we say that there is a more serious problem here than with other execution methods?"

Donald Verrilli, a Washington lawyer who is a veteran of capital cases, offered the court examples of executions in California and North Carolina in which inmates appeared to suffer pain as they were being put to death.

He said the best way to avoid repetition was to switch to a single drug, as veterinarians commonly use in putting animals to sleep.

"The risk here is real," Verrilli said. "That is why in the state of Kentucky it is unlawful to euthanize animals the way" the state executes inmates, he said.

Roy Englert, who typically argues business cases before the Supreme Court, said on behalf of Kentucky that the one-drug method has never been used in executions. The Bush administration also took Kentucky's side.

Englert also defended the state's practices as humane. Kentucky regularly trains its execution team and employs an experienced worker to insert the intravenous lines through which the drugs are administered, he said.

The state's lone execution by lethal injection did not present any obvious problems, both sides agreed.

The court may decide the Kentucky case is not the right one to settle the constitutionality of the three-drug procedure and leave that issue for another death penalty case.

Justice David Souter, however, urged his colleagues to take the time necessary to issue a definitive decision about the three-drug method in this case, even if it means sending the case back to Kentucky for more study by courts there.

Scalia, however, said such a move would mean "a national cessation of executions" that could last for years. "You wouldn't want that to happen," he said.

Recent executions in Florida and Ohio took much longer than usual, with strong indications that the prisoners suffered severe pain in the process. Workers had trouble inserting the IV lines that are used to deliver the drugs.

Lined up in front of the court waiting to attend the arguments, college students Jeremy Sperling and Gira Joshi said they oppose the death penalty, but regard making executions less painful and more humane as a worthy goal.

"You have the right to die with dignity," said Joshi, a political science and religion major at New Jersey's Rutgers University. Sperling, a psychology and religion major at New York University, said serving a life prison term is the appropriate alternative to the death penalty.

After today's court session, the brother of a victim of one Kentucky prisoner said the case already has dragged on too long. Powell County Sheriff Steve Bennett was shot to death by Ralph Baze in 1992.

"Ralph Baze was tried. The death penalty was what he got and he chose lethal injection," said Orville Bennett of Beattyville, Ky. "And we need to just get this over with."

The case is Baze v. Rees, 07-5439.

Those of you who listened to the argument or read the transcript, what did you think about the petitioner's reliance upon Panetti to get around Scalia's (quite accurate) point that the 8th Amendment prevents the unnecessary and wanton infliction of pain? I'm not sure I understand the argument enough to buy it or reject it.

Did anyone notice that they kept referring to the "three-judge" protocol, rather than the "three drug" protocol? Does that mean that 3 judges = a painful death?

Gretchen certainly caught it. I laughed when I saw her comments.

So would they use a single protocol of oral argument or a combination of briefing, oral argument, and petitions for writ of certiorari (sp?). talk about a lingering death.

I'm glad JB and David heard what I heard - I thought for a while that perhaps I just needed to clean my ears.

The link made no sense to the four of us listening here. I suspect it was rather like the defense relying on Apprendi for everything a while back; i.e., we like the opinion, let's use it for anything.

Wasn't it Stevens who mispoke about the protocol? He must have been thinking of himself!!!

JAS