For a link to the description of the issue on cert. granted by the SCOTUS regarding lethal injection, click here.

Here is the Kentucky SC Opinion:

RALPH BAZE AND THOMAS C. BOWLING, APPELLANTS v. JONATHAN D. REES, COMMISSIONER, KENTUCKY DEPARTMENT OF CORRECTIONS; GLENN HAEBERLIN, WARDEN, KENTUCKY STATE PENITENTIARY; AND ERNIE FLETCHER, GOVERNOR OF KENTUCKY, APPELLEE

2005-SC-0543-MR
SUPREME COURT OF KENTUCKY

November 22, 2006, Rendered

JUDGES: OPINION OF THE COURT BY JUSTICE WINTERSHEIMER. Lambert, C.J., Graves, Minton and Scott concur together with Special Justices Adams and Revell. Justices McAnulty and Roach, JJ., not sitting.

OPINION OF THE COURT BY JUSTICE WINTERSHEIMER

AFFIRMING

This appeal is from a decision of the circuit court denying relief sought by Baze and Bowling in the form of a declaratory judgment. This action was filed in accordance with CR 57, which outlines the procedure for obtaining a declaratory judgment pursuant to KRS 418.040.

The single issue is whether the lethal injection provisions for execution protocol violate or threaten to violate the rights of Baze and Bowling to be free from cruel and unusual punishment.

Baze and Bowling argue that the lethal injection method is cruel and unusual punishment forbidden by the Eighth Amendment to the United States Constitution and Section 17 of the Kentucky Constitution. There are no questions in this case involving the guilt or convictions of either defendant. The recommendations by the jury of death sentences are also not in question. The only issue to be decided is the manner in which the Commonwealth of Kentucky will carry out the sentences on the convicted individuals.

Baze and Bowling were both convicted of double murders and each was sentenced to death. Both Bowling and Baze have completely exhausted all of the legitimate state and federal means for challenging their convictions and the propriety of the death sentences. Both have refused to select a method of execution as provided by KRS 431.220. The statutory option allows an inmate to choose electrocution or to submit to the default of lethal injection as punishment.

As background to this matter, we believe it is appropriate to recall briefly the underlying facts in each case. Baze was convicted by a jury of two murders for shooting two law enforcement officers three times in the back with an assault rifle when the officers were attempting to serve him with five felony fugitive warrants from Ohio. See Baze v. Commonwealth, 965 S.W.2d 817, 44 4 Ky. L. Summary 10 (Ky. 1997). A jury convicted Bowling of the murders of a husband and wife as they sat in their automobile in a parking lot outside a Lexington dry cleaning shop. See Bowling v. Commonwealth, 873 S.W.2d 175 (Ky. 1994).

The trial judge on April 18, 2005, began a bench trial to determine the sole issue regarding the propriety of the lethal injection protocol. Seventeen depositions were presented and twenty witnesses were called to trial to testify including various Department of Corrections personnel, physicians, issues advocates and researchers. The trial ended on May 10. The trial judge issued his decision on July 8, 2005. This case comes to our Court as a matter of right.

I. Standard of Review

Pursuant to CR 57 and KRS 418.040, Baze and Bowling sought a declaratory judgment that the lethal injection method of execution violates their federal and state rights to be free from cruel and unusual punishment. Woods v. Commonwealth, 142 S.W.3d 24 (Ky. 2004), provides that in order to succeed, they must establish such constitutional violations by a preponderance of the evidence. Our review is de novo as to the conclusions of law. Rehm v. Clayton, 132 S.W.3d 864 (Ky. 2004).

A method of execution is considered to be cruel and unusual punishment under the Federal Constitution when the procedure for execution creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). In reviewing whether the method of execution is a constitutional violation, courts must consider whether it is contrary to evolving standards of decency that mark the progress of a maturing society. See Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). Prior interpretation of Section 17 of the Kentucky Constitution provides that a method of punishment is cruel and unusual if it shocks the moral sense of all reasonable men as to what is right and proper under the circumstances. See Weber v. Commonwealth, 303 Ky. 56, 196 S.W.2d 465 (1946); See also Weems v. U.S., 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910).

Circuit Court Decision

This action is a declaratory judgment and the standard of review on appeal is that which is used in a civil matter. CR 52.01 has long held that matters of fact tried before a judge without a jury are to be reviewed under the clearly erroneous standard. The rule provides in pertinent part that findings of fact shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. See Largent v. Largent, 643 S.W.2d 261 (Ky. 1982).

A careful review of this matter indicates there is no reason to believe that the circuit judge was clearly erroneous in any of his findings of fact. They are supported by substantial evidence. Consequently, the decision of the trial judge was not clearly erroneous nor was there any abuse of discretion. Thus, the reviewing court should not substitute its opinion for that of the trier of fact in the absence of clear error.

After an extensive bench trial in which the judge received evidence at length and recognized the arguments and briefs of the parties, the circuit judge denied the relief sought. He concluded that the lethal injection protocol is in conformity with KRS 431.220. The protocol provides for a continuous administration of the lethal injection chemicals and that the argument to the contrary is predicated on a very strained interpretation of the "continuous administration" language of the statute.

A brief summary of the findings and conclusions of the trial judge follows:

1) Baze and Bowling have not demonstrated by a preponderance of the evidence that the method of execution by lethal injection deviates from contemporary norms and societal standards in regard to capital punishment. Cf. State of Connecticut v. Webb, 252 Conn. 128, 750 A.2d 448, 457 (Conn. 2000), which states in part that of the 38 states permitting capital punishment approximately 34 have adopted lethal injection and have done so because it is universally recognized as the most humane method of execution and the least apt to cause unnecessary pain.

2) There has been no demonstration by a preponderance of the evidence that the method of execution in Kentucky by lethal injection offends the dignity of the prisoners and society as a whole.

3) Baze and Bowling have not demonstrated by a preponderance of evidence that the method of execution by lethal injection in Kentucky inflicts unnecessary physical pain. Evidence was considered that other drugs were available that may decrease the possibility of pain but the constitutional provisions do not provide protection against all pain, only cruel and unusual punishment. Although alleged that there are other drugs which may further assure the condemned person feels no pain, there is no requirement to select the least severe penalty so long as the penalty is not cruel or unusual. See Gregg, supra.

4) It has not been demonstrated by a preponderance of the evidence that the method of execution in Kentucky by lethal injection inflicts unnecessary psychological suffering.

5) It has not been demonstrated by a preponderance of the evidence that the method of legal injection in Kentucky is so inept that it deprives the parties of due process and fundamental fairness. In the event of a possible stay, the Kentucky method recognizes the necessary steps for revival sufficient to satisfy the due process rights of the convicted parties.

6) The circuit judge concluded that the preponderance of the evidence indicates that the procedure which attempts to insert an intravenous catheter into the neck through the carotid artery or jugular vein does create a substantial risk of wanton and unnecessary infliction of pain and that only that portion of the legal injection protocol was stricken as violating the safeguards against cruel and unusual punishment. The Department of Corrections has since amended its previous protocol to meet the directions of the circuit court.

II. History of Execution in Kentucky

Prior to 1998, executions within the Commonwealth were conducted pursuant to the then authorized method of electrocution. KRS 431.220. The current version of that statute provides for lethal injection as the primary means of execution. KRS 431.220(1)(a). Prisoners sentenced to death prior to the effective date of the current version of the statute are granted the option of selecting the previous method of electrocution. KRS 431.220(1)(b). Should the prisoner refuse to elect an option, lethal injection will be utilized as the default method of execution. Id.

It is not the role of this Court to investigate the political, moral, ethical, religious, or personal views of those on each side of this issue. The Legislature has given due consideration to these matters. We are limited in deciding only whether the method defined by the Legislature and signed into law by the Executive, survives constitutional review. Baze and Bowling must establish by a preponderance of the evidence that the methods of execution result in a constitutional violation. Woods v. Commonwealth, 142 S.W.3d 24 (Ky. 2004).

We must examine the methods and consider whether they are contrary to evolving standards of decency that mark the progress of a maturing society. Trop v. Dulles, supra. Any method of punishment is cruel and unusual if it shocks the moral sense of reasonable men as to what is right and proper under the circumstances. Weber v. Commonwealth, supra. Our guidelines include whether the method comports with the contemporary norms and standards of society; whether it offends the dignity of the condemned or society; and whether it inflicts unnecessary physical pain or psychological suffering. Weems v. United States, supra. The method of execution must not create a substantial risk of wanton or unnecessary infliction of pain, torture or lingering death. Gregg v. Georgia, supra.

III. Electrocution as a Method of Execution

We have previously examined electrocution as a method of execution and found it did not rise to the level of unconstitutional punishment. Smith v. Commonwealth, 734 S.W.2d 437 (Ky. 1987); Sanders v. Commonwealth, 801 S.W.2d 665 (Ky. 1990); Perdue v. Commonwealth, 916 S.W.2d 148, 42 10 Ky. L. Summary 33 (Ky. 1995); Bowling v. Commonwealth, 942 S.W.2d 293 (Ky. 1997); Foley v. Commonwealth, 942 S.W.2d 876 (Ky. 1996); McQueen v. Parker, 950 S.W.2d 226 (Ky. 1997). Based on a review of a number of executions within different jurisdictions, we find no reason to change the view that electrocution remains a constitutionally viable method of execution.

IV. Lethal Injection as a Method of Execution

We have previously examined lethal injection as a method of execution and held it did not violate the constitutional standards prohibiting cruel and unusual punishment. Wheeler v. Commonwealth, 121 S.W.3d 173 (Ky. 2003). We have no reason to depart from the position set out in that case. The protocol for lethal injection execution begins with the availability of a therapeutic dose of diazepam if it is requested. Diazepam, commonly referred to as Valium, is an anti-anxiety agent used primarily for the relief of anxiety and associated nervousness and tension. Certified phlebotomists and emergency medical technicians are allowed up to an hour to then insert the appropriate needles into the arm, hand, leg or foot of the inmate.

Three grams of sodium thiopental, commonly referred to as Sodium Pentathol, are then injected. This drug is a fast acting barbiturate that renders the inmate unconscious. At this level of ingestion the person is rendered unconscious for hours. The line is then flushed with 25 milligrams of a saline solution to prevent adverse interaction between the drugs.

Fifty milligrams of pancuronium bromide, commonly referred to as Pavulon, follows. This drug causes paralysis. The purpose is to suspend muscular movement and to stop respiration or breathing. The line is again flushed with 25 milligrams of a saline solution to again prevent any adverse interaction between the drugs.

Finally, 240 milligrams of potassium chloride is injected. This chemical disrupts the electrical signals required for regular heart beat and results in cardiac arrest. An electrocardiogram verifies the cessation of heart activity. A doctor and a coroner then verify the cause of death.

The Eighth Amendment to the United States Constitution and Section 17 of the Kentucky Constitution both forbid cruel and unusual punishment. The use of three grams of sodium thiopental, commonly referred to as Sodium Pentathol, renders the condemned unconscious. The prohibition is against cruel punishment and does not require a complete absence of pain. Conflicting medical testimony prevents us from stating categorically that a prisoner feels no pain.

Eddie Lee Harper was the first and only convicted killer to be executed under the lethal injection protocol of Kentucky. Evidence presented by Department of Corrections personnel present at the execution indicates that Harper went to sleep within 15 seconds to one minute from the moment that the warden began the execution and never moved or exhibited any pain whatsoever subsequent to losing consciousness. Cf. Harper v. Commonwealth, 694 S.W.2d 665 (Ky. 1985).

In addition, state and federal courts have regularly rejected arguments that lethal injection as a method of execution is cruel and unusual. See e.g. LaGrand v. Lewis, 883 F.Supp. 469 (D.Ariz. 1995), affirmed 133 F.3d 1253 (9th Cir. 1998); Sims v. State, 754 So.2d 657 (Fla. 2000); State v. Webb, supra; Moore v. State, 771 N.E.2d 46 (Ind. 2002); Spencer v. Commonwealth, 238 Va. 563, 385 S.E.2d 850, 6 Va. Law Rep. 747 (Va. 1989).

The lethal injection method used in Kentucky is not a violation of the Eighth Amendment to the United States Constitution or Section 17 of the Kentucky Constitution's ban on cruel and unusual punishment.

Baze and Bowling have not met their burden of proof by a preponderance of the evidence as necessary in a declaratory judgment action. The findings of fact by the trial judge are not clearly erroneous. The conclusions of law are correct.

The judgment of the circuit court is affirmed.

Lambert, C.J., Graves, Minton and Scott concur together with Special Justices Adams and Revell. Justices McAnulty and Roach, JJ., not sitting.

As you can see, the State arrives at the SCOTUS in an extremely favorable position. After a dense factual hearing, the trial court made specific findings in favor of the State. The appellate court wrote a very well-organized, calm review of the facts and law, giving appropriate deference to the trial court's decision. The appellate court was careful to avoid political or philosophical opinions. Unless the SCOTUS changes all the rules of review, the State has presented a case that should be affirmed.

[This message was edited by JB on 09-29-07 at .]

Texas DA says he won't seek death penalty until justices rule

CORPUS CHRISTI, Texas � The Nueces County district attorney said his office won't seek the death penalty until the Supreme Court rules on a challenge that claims lethal injection is cruel and unusual.

"Until we can get some direction from the Supreme Court we will waive the death penalty and seek life in prison," District Attorney Carlos Valdez said Monday.

The Supreme Court agreed last week to review the method of lethal injection used in Texas and most other states.

The high court has never before addressed whether the three drug cocktail � consisting of an anesthetic, a muscle paralyzer and a substance to stop the heart � violates the Eighth Amendment's ban on cruel and unusual punishment. The case the court is considering stems from a challenge by two inmates on death row in Kentucky.

Under Texas law, a capital murder conviction is punishable by either death or life in prison without parole.

Ten of the 37 states that use the three-drug cocktail have suspended its use after opponents alleged it was ineffective and cruel, according to the Death Penalty Information Center.

Texas officials, including Gov. Rick Perry, have said there are no problems with the state's execution procedures and will examine each case individually. Twenty-six people have been executed by lethal injection in Texas this year.

Valdez said his new policy is a precaution to avoid cases being returned for new punishment hearings.

The 14 pending capital murder cases in Nueces County won't be affected because Valdez's office had already decided not to seek the death penalty. The policy also won't affect the four men from Nueces County who are already on death row.

[For the record, Williamson County will continue to consider the full range of punishment. The WC position is that the case before the SCOTUS does not challenge the overall constitutionality of the DP. It only examines a narrow procedure for carrying out a validly obtained DP.]

Appeals court halts execution of Honduran man

By MARK BABINECK AND R.G. RATCLIFFE
Copyright 2007 Austin Bureau

The state's highest criminal appeals court today halted the scheduled execution Wednesday of a Honduran man and asked for the prison system to respond in writing as to whether lethal injection is unconstitutionally cruel.

Heliberto Chi, 28, was convicted in the 2001 killing of an Arlington store manager. His appeal was partly based on the U.S. Supreme Court's decision last week to study whether lethal injection in Kentucky � which uses the same three-drug combination as in Texas � violated the Eighth Amendment.

The breakdown of the court's vote was not immediately available. Earlier today, the Texas Board of Pardons and Paroles voted 4-3 not to grant Chi a six-month stay.

Texas DAs not matching colleague's execution moratorium
By MICHAEL GRACZYK Associated Press Writer
� 2007 The Associated Press

HOUSTON � A South Texas district attorney's decision to stop seeking death sentences until the U.S. Supreme Court rules on the legality of lethal injections isn't gaining traction among other prosecutors in the state.

Nueces County District Attorney Carlos Valdez said this week his office won't seek the death penalty until the high court rules on a challenge from two Kentucky prisoners who claim lethal injection is cruel and unusual.

"Until we can get some direction from the Supreme Court we will waive the death penalty and seek life in prison," Valdez said Monday.

The Supreme Court agreed last week to review the method of lethal injection used in Kentucky. Texas, the nation's busiest capital punishment state, uses the same procedure Kentucky does.

Valdez, based in Corpus Christi, said his new policy is a precaution to avoid sentences being reversed for new punishment hearings. Nueces County has four inmates on death row.

"It never crossed my mind to adopt that position," Fort Bend District Attorney John Healy said Tuesday. "He's being cautious, I guess."

Healy, whose county includes Houston's southwest suburbs, said Texas and other states merely would have to come up with another process for executions if the Supreme Court sides with the Kentucky inmates.

"I don't know it would result in a reversal of the death sentence," said Healy, whose office isn't planning to revise its policy of reviewing cases before seeking the death penalty.

Healy's sentiment was shared by Rene Guerra, who has 11 men on death row from cases in Hidalgo County.

"We don't have to change," Guerra said.

He said his office would continue to seek the death penalty and he doubted advocates will be able to prove lethal injection is cruel and unusual. Even if they do, prosecutors can continue to pursue death sentences, Guerra said.

Bexar County District Attorney Susan Reed and Lubbock County Prosecutor Matt Powell said they didn't anticipate any changes. The high court's consideration was "a mechanism issue" not one aimed at the constitutionality of the death penalty, Powell said.

"We're going to continue to do it until someone tells us we can't," he said.

"As I see it, the law remains intact in Texas," agreed Reed, who has 36 inmates convicted from her county on death row and whose office in San Antonio typically tries four to six capital cases each year. "I intend to enforce the law of Texas.

"We're just talking about the method."

Even if the high court were to rule that the combination of drugs now used is cruel and unusual punishment, another method could be adopted to meet the court's standards, Reed said.

Potter County District Attorney Randall Sims, Randall County District Attorney James Farren and Tarrant County Assistant District Attorney John Montague also said policies in their counties have not changed. Tarrant County has 26 inmates on death row. Amarillo straddles the border of Potter and Randall counties.

"There's been no decision out of the Supreme Court," Montague said. "All they've done is grant review of an issue. In fact, we're in the midst of jury selection in a death penalty case right now."

Farren said if justices strike down lethal injection "then we'll find a method that passes constitutional muster." He considered the Supreme Court review "another step in the agenda of people who oppose the death penalty."

The effort is to try to "get through the back door what they couldn't get through the front door," Farren said.

In Dallas County, which has the state's second-largest contingent on death row with 45 inmates, District Attorney Craig Watkins noted a capital case began just this week and will continue without change.

If the court has not ruled by the time a Dallas County defendant faces execution � and the next one is scheduled for February _Watkins said he'd withdraw the execution request.

"We hope the Supreme Court would have made a decision by then," Watkins said.

In Harris County, District Attorney Chuck Rosenthal wasn't available for comment Tuesday, but like Tarrant, jury selection was under way in a capital murder case where prosecutors were seeking the death penalty.

Harris, the state's most populous county, has 122 inmates on death row, the most by far. The county also accounts for about one-fourth of all the 405 Texas prisoners given lethal injection since the state resumed carrying out capital punishment in 1982.

The Texas Department of Criminal Justice administers the lethal injections in Huntsville. Death warrants specify the condemned inmates should be given "intravenous injection of a substance or substances in a lethal quantity sufficient to case the death."

Changes in the procedures, such as dosages and chemicals, would not require approval of the Legislature or the Texas Board of Criminal Justice, agency spokeswoman Michelle Lyons said Tuesday.

Texas switched from electrocution to lethal injection in 1977 after the Supreme Court allowed the death penalty to resume. The three-drug combination consists of 120 milliliters of solution containing 3 grams of thiopental sodium, 50 milliliters of solution containing 100 milligrams of pancuronium bromide, and 70 milliliters of solution containing 140 milliequivalents of potassium chloride. The drugs are administered sequentially with intervening saline flushes over about five minutes.

The sodium thiopental is a sedative, the pancuronium bromide is a muscle relaxant that collapses the diaphragm and lungs, and the potassium chloride stops the heart. The prison agency puts the cost of the drugs at $86.06.

Ten of the 37 states that use the three-drug cocktail have suspended its use after opponents alleged it was ineffective and cruel, according to the Death Penalty Information Center.

Texas officials, including Gov. Rick Perry, have said there are no problems with the state's execution procedures and will examine each case individually. Twenty-six people have been executed by lethal injection in Texas this year.

"Roiled by internal dissent over its handling of a previous execution appeal, Texas' highest criminal court Tuesday blocked the state from carrying out its next scheduled execution � signaling a temporary halt for the nation's busiest death chamber."

http://www.statesman.com/news/content/region/legislature/stories/10/03/1003court.html

They're also making a big stink about the cca's refusal last week to stay open for defense attorneys who failed to get their stay request filed by 5:00 p.m. Instead of attacking the cca, their ire ought to be directed at the defense attorneys.

Anybody shocked by the CCA's decision not to stay open past closing time for a last-minute filing in a death penalty case by the Texas Defender Service has never done this sort of litigation, which is always done at the last possible minute to raise usually meritless claims.

Think: If Richard or his attorneys had such a problem with the way he was to be executed, nothing stopped him from raising the claim any time after his conviction--certainly Richard did not need Baze v. Rees to know the claim was available. The Eighth Amendment has been around since 1791. The point is defendants DON'T want the courts to have enough time to actually rule on the merits of these claims, they just want the courts to THINK some valid claim needs to be litigated so the execution gets stayed.

If you manage to stay alive for another year, well then there may very well be another case to base another last minute claim on. . . and so on. That's how the game is played.

J. Keller's statement that she didn't make a decision as much as a statement "we close at 5" rings true to me when you understand how the process works. These defendants have had all the appeals, writs, and clemency issues decided by the time they make their last minute claims. As a rule, there isn't anything valid left to litigate. Richard was no different, except the Supreme Court decided that day to take up the issue of the proper standard to be applied in 8th Amendment claims when they are actually made. That is all Baze stands for.

And let's not forget: Richard raised the fact that the CCA would not keep its doors open in his Motion for Stay in the Supreme Court. The SCOTUS certainly could have sent a message by granting the stay. It did not.

[This message was edited by KSchaefer on 10-03-07 at .]

SCOTUSblog is showing that the Supreme Court dropped one of the issues in this case (links not included):

The Supreme Court on Wednesday modified its order agreeing to rule on the constitutionality of a three-drug protocol used in carrying out the death penalty by lethal injection, dropping one of the four questions raised in the appeal. In an order amending its grant, the Court said it was confining its review to questions directly bearing on that protocol. The new order can be found here.

Thus, the question that will not be before the Court sought to test whether a state had a duty to have a medical team on hand at an execution to keep the inmate alive, if the process had been started but a court has stayed the execution before it was completed. That, too, was a constitutional question. The petition put it this way: �When it is known that the effects of the chemicals could be reversed if the proper actions are taken, does substantive due process require a state to be prepared to maintain life in case a stay of execution is granted after the lethal injection chemicals are injected?� The petition can be found here.

The case that the Court agreed on Sept. 25 to hear is Baze v. Rees (07-5439). At the Justices� Conference on Friday of this week, they will be considering a motion to expedite another lethal injection case � Taylor v. Crawford (07-303) � and to hear that case along with Baze. The Taylor petition raises some additional issues regarding that method of execution.

Scotusblog has an analysis of what to make of the Supreme Court's granting cert. in Baze.

"The Supreme Court has not issued anything like a nationwide moratorium on the lethal injection method of capital punishment � and it is not likely to do so. But an increasing number of lower court judges appear to be reading the Court�s planned review of the constitutionality of the most widely-used drug protocol for use in death chambers to be a strong call for caution in going forward with executions.

"The Court on Sept. 25 agreed to rule on the case of Baze v. Rees (07-5439), raising the question of whether it violates the Eighth Amendment ban on �cruel and unusual punishment� to use the common three-drug formulation to carry out the death penalty, because the protocol is claimed to result in real pain and suffering before the execution is completed. The Court has not been asked to delay all lethal injections until it rules on the Baze case, and it is not clear that anyone would have the authority to ask the Justices for that kind of order, or that the Court would have the power to impose such a moratorium while the Baze case is pending. (It could do so, under its supervisory authority, over federal courts, but most death penalty cases arise in state courts.)

"But it is now evident, from documents filed in various death penalty cases since Sept. 25, and from the content of the Supreme Court�s own order in an Arkansas case on Tuesday, that the effect of the grant of review in Baze is being debated actively in each case where an execution is imminent in a state using the specific three-drug protocol.

"Before this evening, the Court may act on another case in which a death row inmate is seeking to delay execution by lethal injection, and the primary issue in that case is the effect, if any, of the Baze grant on such stay requests. This new case involves Virginia inmate Christopher Scott Emmett, facing execution for the 2001 slaying of a co-worker in Danville, Va., for refusing to lend Emmett money to buy illegal drugs. Emmett�s lawyers filed a stay request with Chief Justice John G. Roberts, Jr., on Monday; Emmett is scheduled to be executed at 9 p.m. tonight.

"In the Fourth Circuit Court, Emmett�s lawyers had sought a stay pending a final ruling by the Supreme Court in the Baze case. While the majority of the panel denied the stay, apparently refusing to treat the Baze grant as controlling, Circuit Judge Roger L. Gregory �voted to grant appellant a stay of execution until the Supreme Court decides Baze v. Rees,� according to the order.

"That issue, too, was debated in the Eighth Circuit Court before it issued a stay last Thursday to delay the execution of Jack Harold Jones, Jr., sentenced to die for the brutal slaying and rape of a woman office worker in Bald Knob., Ark., in 1995. The Circuit Court made no comment as it granted the stay, but one judge on the panel, Circuit Judge Raymond W. Gruender, dissented. He wrote: �No precedent requires courts to stay all executions involving the same or similar issues to cases currently pending before the Supreme Court�.The Supreme Court has not issued a nationwide stay of lethal injection executions until it hands down a decision in Baze.�

"This was a key issue before the Supreme Court when the state of Arkansas asked the Justices to lift the Circuit Court�s stay. The Court refused to do so on Tuesday, in an order that can be found here.

"Justice Antonin Scalia dissenting, wrote: �I vote to grant the State�s application to vacate the stay because in my view the decision of the Eighth Circuit 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.� Jones� challenge should be denied, Scalia went on, because he waited nine years to raise it.

"That is the first time any Justice has publicly discussed the dispute over the meaning of the grant in Baze. The fact that none of his colleagues joined his dissent, however, does not necessarily mean that all eight other Justices are reading the grant as an informal moratorium.

"(ADDENDUM: The issue of Baze�s effect on executions was raised as an issue when the Nevada Supreme Court this week considered a request to stay the execution of William Castillo (docket 50354 in the state�s highest court). The petition, in fact, had sought a stay of all executions in the state until the Supreme Court decided Baze. The Supreme Court did not mention that in its stay ruling on Monday, confining its stay to the Castillo case. Then, on Tuesday, the state court refused to allow an anti-death penalty group to join in the case on behalf of another death row inmate, Pedro Rodriguez, in order to seek postponement of all Nevada executions, and the denial order said it would not be helpful to have a group pursuing that objective while the court was resolving the Castillo case.)"

Perhaps we should start injecting them with high-velocity lead as they do in Utah

That raises an interesting point that no one in the media seems to be interested in: we're only talking about what to inject them with, not whether to execute them.

All of these Baze issues are only complaining that a dosage of sodium penthothal ten times the surgical dose will not be sufficient to render the inmate unconscious for long enough to prevent him feeling the pain incurred by the other drugs.

The whole issue before the Supreme Court now is not whether all of these defendants will be executed, but only "Does the Eighth Amendment to the United States Constitution prohibit means for
carrying out a method of execution that create an unnecessary risk of pain and
suffering as opposed to only a substantial risk of the wanton infliction of pain?"

If the Court decides that the standard is an unnecessary risk of pain, then we may have to change our chemicals. For example, by using sodium pentobarbitol (which is a longer-acting barbiturate than sodium pentothal and may therefore decrease the risk that the anesthetic will wear off before the other drugs are administered). If the Court decides that the standard is a substantial risk of wanton infliction of pain, then they may decide that the risk is low enough in the current procedure so as not to be substantial, and therefore no change is necessary.

Either way, the defendant dies.

The main reason (IMHO) that the Court even granted cert on this issue was just to establish a high court decision on what the standard is, and to put a stop to the constant barrage of cert petitions on this issue now that they finally got a case that put it squarely in controversy.

The anti-DP crowd is making way more of the case than it is. The Supreme Court specifically has not placed a moratorium on executions, has not condemned lethal injection, and the case will not stop a single lethal injection from going forwards. Their best-case scenario is execution by other drugs.

Now I can't wait for all the lawsuits from surgical patients who are going to claim their doctors put them at unnecessary risk of pain when they were given a fraction of the lethal injection dose of SP and then underwent surgery without feeling anything. But the chance was there! Check your medical insurance rates next year for the results.

Cleve Foster will be the first Texas inmate to receive the anesthetic drug pentobarbital - instead of sodium thiopental - in the three-drug cocktail that will be used in his execution on April 5.

Details.

For an interesting discussion of why execution should be done by a gas chamber, click here.

Yelenosky this afternoon denied the request of two death row inmates to temporarily halt executions with Texas' new lethal injection drug. Lawyers for Cleve Foster and Humberto Leal said they would immediately appeal the judge's decision.

Details.

BRITISH efforts to halt the sale of lethal-injection drugs to the US have been seized on by American death-penalty supporters.

They are calling for the method to be scrapped in favour of firing squads or a return to the gas chamber.

Details.

Condemned inmate Cary Kerr acknowledges that the prospect of becoming the first Texas prisoner to be executed with a new drug is unsettling.

"It's very scary," Kerr said recently from a tiny visiting cage outside death row. "I'm not volunteering to test nothing for the state."

Kerr, 46, is set to die Tuesday in Huntsville for the rape and slaying of a woman near Fort Worth 10 years ago.

Details.

The Texas Department of Criminal Justice said Thursday that its remaining supply of pentobarbital expires in September and that no alternatives have been found. It wasn't immediately clear whether two executions scheduled for next month would be delayed. The state has already executed 11 death-row inmates this year, and at least seven more have execution dates in coming months.

Details.

What do vets used to euthanize animals like dogs, horse, and cats? The protocol seems to be a sedative followed by some type of barbituate in a large dose for the body weight.

Vietnam

Vietnam executed its first prisoner by lethal injection on Tuesday, state media said, after a two-year hiatus in carrying out capital punishments due to problems procuring the chemicals.

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The decision by the Missouri Supreme Court to allow propofol, the same powerful anesthetic that caused the death of Michael Jackson, to be used in executions — coming at a time when Texas, Ohio, Arkansas and other states are scrambling to come up with a new drug for their own lethal injections — is raising new questions about how the death penalty will be carried out.

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