You raise a very interesting question. In the novel QBVII (later made into a TV miniseries), a doctor sued the author of a book, alleging the author made defamatory statements about his work in a Nazi prison camp. By suing, the doctor opened himself up to being cross-examined and investigated through the civil process. So, it would be possible for David Dow to finally have to explain, under oath, what really happened and why he didn't bother to raise the issue for years and years, only to cry wolf at the last second.

But, given the absolute immunity that judges have from such litigation, the case is not likely to get that far.

'Texas 7' convict's desire to die stalled by courts 12:51 PM CT
01:11 PM CST on Tuesday, November 13, 2007

Associated Press
LIVINGSTON, Texas - The first letter, neatly hand-printed on lined paper, arrived at the federal courthouse in Dallas nearly a year and a half ago with a simple address: U.S. District Clerk's Office.

"I am a college graduate and have no delusions what will occur as an end result of these proceedings," inmate Michael Rodriguez wrote in the first of an almost monthly series of notes to the courthouse.

Rodriguez, one of the "Texas 7" convicts who escaped from a state prison in 2000 and killed a Dallas-area police officer while on the lam, has dropped his appeals and wants to die.

He can't.

A federal judge signed off on Rodriguez's request Sept. 27, two days after the U.S. Supreme Court agreed to consider a Kentucky challenge to lethal injection as a means of capital punishment. But now a state judge won't set an execution date for Rodriguez until after the Supreme Court rules on the Kentucky case.

"We probably won't be able to set the date for the first time until probably late next year at the earliest, even though he has volunteered and is otherwise good to go," said Dallas prosecutor Lisa Smith.

Rodriguez told a psychologist who interviewed him in preparation for a competency hearing that he "had to accept his death sentence and submit to it as payment in order to be forgiven and obtain salvation."

Rodriguez and six other inmates overpowered workers at the Texas Department of Criminal Justice Connally Unit near Kenedy in South Texas on Dec. 13, 2000, took the workers' clothes, then grabbed 16 guns from the prison armory and fled in a stolen truck.

On Christmas Eve, while robbing a suburban Dallas sporting goods store, they shot Irving police officer Aubrey Hawkins 11 times, killing him. The gang, subject of a nationwide manhunt, finally was caught a month later in Colorado.

A jury in Franklin County, where his capital murder trial was moved 100 miles northeast of Dallas because of publicity about the case, deliberated less than 90 minutes before sending Rodriguez to death row in May 2002 for his part in Hawkins' slaying. Rodriguez admitted pulling the officer from his patrol car. After they shot Hawkins, 29, the Texas 7 ran over him in their getaway car.

Five of Rodriguez's companions also were given death sentences. The seventh fugitive killed himself before he could be recaptured with his comrades in Colorado.

Rodriguez escaped while serving a life term for hiring a hit man to kill his wife, Theresa, 29, to collect her $250,000 life insurance. She was gunned down in 1992 getting out of her car outside their San Antonio home. The triggerman, Rolando Ruiz, also is on death row.

The surviving Texas 7 still are appealing their convictions and death sentences, meaning he'd be the first of the group executed.

His letters in recent months to the federal court became so frequent that he began one in May to Irma Carrillo Ramirez, the federal magistrate who would be presiding over his competency hearing, by saying: "Hello it is me again."

"It is still my intention to vacate all appeals and to proceed with the process," Rodriguez wrote in August. "I am truly sorry for my actions and wish to express solely that to the Hawkins family. ... Since all the issues seem to be covered I will close for probably the last time."

Hawkins' widow, Lorie, declined a request from The Associated Press for comment. The officer's mother, Jayne, who testified at all six of the trials of the men convicted of killing her only son and became an outspoken critic of the Texas prison system, died early this year.

Rodriguez also declined to talk to the AP. In one of his letters to Ramirez, he stated, "I do not give media interviews."

Rodriguez's lawyer, Danny Burns, had urged his client to continue appeals that could help him and his fellow inmates.

"Others will not benefit from your precedent if we get you relief," Burns told Rodriguez in a letter. "If we can get you a new trial, there is always a chance of getting you an opportunity for freedom someday. At this time it does not seem likely, but one never knows what the future will bring.

"Don't throw your life away," Burns pleaded unsuccessfully.

This isn't the first time executions have been stalled in Texas, the nation's busiest capital punishment state, because of a court challenge. For about a year ending in early 1997, lethal injections were virtually halted while the Texas Court of Criminal Appeals reviewed a new state law intended to speed up the capital punishment process. When the court finally gave its OK, a then-record 37 Texas inmates were executed that year.

In the Kentucky case now before the Supreme Court, justices will consider whether the mix of three drugs used to sedate and kill prisoners and the way they are administered can cause enough pain to violate the constitutional ban on cruel and unusual punishment. Arguments in the case will take place early next year and a decision should come by late June.

Even if Rodriguez succeeded in getting an execution date, prosecutors say it's likely death penalty opponents would intervene to get his punishment stopped like one last month in Nevada, where an execution volunteer's efforts were thwarted by court action initiated by the American Civil Liberties Union, which cited the pending U.S. Supreme Court case.

In Texas, where injection procedures are similar and where trial court judges set execution dates, State District Judge Rick Magnis told prosecutors he'll hold off setting a date for Rodriguez until a decision from the high court, Kissi Jones, Magnis' court coordinator said.

"He's not doing anything out of the ordinary," Smith said. "I think the judge is doing what most judges are, which is everybody is waiting to see what happens."

Schwab execution back on
Paul Flemming
Florida Capital Bureau
TALLAHASSEE -- The way is cleared -- for the moment -- for the execution of convicted child killer Mark Dean Schwab this evening.

Back-and-forth court decisions will be resolved by the U.S. Supreme Court.

This morning, a three-judge panel of the 11th Circuit Court of Appeals reversed an Orlando district court judge who yesterday had stayed Schwab's execution.

The appeals court ruling said the fact that the highest court has taken up a Kentucky case, known as Baze, to consider the standards for challenging lethal injection is no reason to hold up Schwab's death sentence.

Furthermore, the federal appeals court said the Florida Supreme Court's ruling that the state's new lethal-injection procedures would meet any legal challenge mean that Schwab's arguments are undercut.

"Even if we were permitted to sweep aside binding circuit law based on our speculation about what the Supreme Court may decide in another case and our conjecture about how that decision might affect the case in front of us, we have no reason to believe that the Baze decision will enhance Schwab's prospects for relief in this case," the appeals judges wrote.

Schwab, 38, was convicted in 1991 of raping, torturing and killing 11-year-old Junny Rios-Martinez of Cocoa. He is scheduled to die by lethal injection this evening in the death chamber at the Florida State Prison in Starke.

Department of Corrections officials on Wednesday said they were going ahead with preparations for the execution.

It's the first death warrant signed by Gov. Charlie Crist and would be the first execution since a state-imposed halt to lethal injections after a botched death sentence in December.

A state commission came up with new procedures for administering the three deadly drugs used for lethal injections. The Florida Supreme Court last month ruled the new procedures are constitutional after a Hillsborough County judge heard evidence and took testimony on the updated protocols.

Florida Attorney General Bill McCollum on Wednesday said that process and ultimate court ruling was a key part of its argument before the 11th Circuit.

"We've had a judge that did extensive fact finding. The court's looked at the underlying evidence that's been presented (on Florida's new lethal injection procedures) and ruled it's constitutional," McCollum said.

U.S. Supreme Court halts child killer's execution

By RON WORD
Associated Press

JACKSONVILLE, Fla. � The U.S. Supreme Court halted the execution of convicted child killer Mark Dean Schwab today, hours before he was scheduled to die.

The move by the high court was widely expected as it considers the appeals of two Kentucky inmates challenging the same lethal toxic three-drug combination used in Florida.

Schwab was sentenced to death for the murder of 11-year-old Junny Rios-Martinez.

In March 1991, the month Schwab was released from prison on a sexual assault sentence, a newspaper published a picture of Junny for winning a kite contest. Schwab gained the confidence of Junny's family, claiming he was with the newspaper and was writing an article on the boy.

On April 18, Schwab called Junny's school and pretended to be Junny's father and asked that the boy meet him after school. Two days later, Schwab called his aunt in Ohio and claimed that someone named Donald had made him kidnap and rape the boy.

He later was arrested and told police where he left Junny's body � in a footlocker in a rural part of Brevard County.

Schwab's execution was to be the first in Florida since the botched execution of Angel Diaz on Dec. 13. It took 34 minutes for Diaz to die � twice as long as normal � because the guards pushed the needles through his veins.

I know it's not directly on point, but I found the description of how "caning" is carried out to
an interesting counterpoint to the lethal injection protocol debate.

* * * * *

'My whole back felt like it was on fire': As a British teacher faces 40 lashes, one man speaks out

Just what is it like to be lashed? In 1993, Gavin Sherrard-Smith, a computer expert from Cheltenham, received 50 lashes with a bamboo cane in a prison in Qatar.

He was accused of breaking an alcohol ban while living in Doha, the capital - something that Mr Sherrard-Smith, now 47, has always denied.

This is his astonishing account of how the brutal punishment was carried out, and how he endured it.

"Tuesday was punishment day. There were 22 of us on the list and one by one we were led into the doctors' clinic to be examined.

Finally, it was my turn and they laid me on a couch, spent several minutes discussing me and, after listening to my heart, judged me fit.

Having been searched to make sure we had no padding under our clothes, another man and I were ushered into the waiting room.

His name was called out first so I remained in the waiting room while he received his punishment next door.

I could hear the cane whooshing through the air and landing with a thud, 50 times.

And then it was me. The room where we were beaten was lit by four striplights in the ceiling.

It was about 12ft by 14ft of whitewashed breezeblocks, with windows on one side and dirty cream curtains hiding the iron security grilles.

There was a stained carpet covered with cigarette burns.

Three policemen, three doctors, a senior police officer and a religious judge were sitting on benches and behind a wooden desk as I was marched in.

They were all holding canes - each more than a yard long and about half an inch thick.

One fellow prisoner had told me he'd been hit so hard that the bamboo cane had broken, which wouldn't be a problem here as there were another eight propped against the wall.

The sentence of the Islamic court was read out and translated by one of the doctors.

The judge asked if I had anything to say and I replied only that I was innocent, although I'm not sure that was translated.

Then I was told to lie face down on a rug on the floor, still wearing my prison uniform.

The lashing started immediately. One, two, three - in quick succession. I buried my head into my forearms, gritted my teeth and concentrated on not breaking down.

The man lashing me was the tallest and biggest of the three policeman.

He was supposed to have a book - usually the Koran - under his arm to reduce the swing and stop him from lifting the cane above his head, but there was no sign of it.

Four, five, six, seven - they kept coming thick and fast. At first the pain wasn't too much and I could feel where he was hitting me.

The blows were raining down on my body, from the shoulder blades to the calves, then back up again.

But with each blow, the skin softened and the pain grew and grew to the point that my whole back felt like it was on fire.

Soon it was unbearable, but they kept coming, mostly on my left shoulder and calf. I had to summon up all my control not to move.

I didn't realise the human body could generate and tolerate such pain. I had never felt anything like it before, and I hope I will never feel anything like it again.

At about 20 I lost count because I was in too much pain, but someone else was counting each stroke out loud in Arabic.

I had to grit my teeth even more and screwed up my eyes.

I was determined not to make a sound and to lie perfectly still.

Only one of us would leave this room with their dignity intact - me.

After a while I had no idea where he was hitting, even though my clothes were getting torn. The last ten strokes were agony, bloody agony.

I thought I was going to pass out.

Then just as quickly as it started, it was over. Thirty to 40 seconds was all it had lasted. I was left to stagger to my feet and walk out.

The first person I saw was the prison governor. He said: 'You are still alive then?' I replied: 'Yes, I'm fine.'

I was shaking uncontrollably, but just glad it was all over.

Although I'd been given a medical check before I was beaten, there was nothing afterwards.

A fellow inmate counted the marks on my back and there were scores of weals - blue and black, surrounded by yellow swellings and extremely painful. Any movement set them on fire.

I couldn't lie on my back for days and, two weeks later, I was still in pain.

Today, the scars have healed, but I will never forget the ordeal."

Presumably, since the Constitution prohibits even a fraction of this kind of pain during an execution, using it as a punitive measure in non-capital cases would be frowned upon.

Sounds like it might leave a lasting impression on a defendant, though.

Texas Lawyer

Contending that a death-row inmate could have filed a last-minute appeal to save his life, Texas Court of Criminal Appeals Presiding Judge Sharon Keller has asked a federal judge to dismiss the wrongful death and survivor suit that the inmate's widow brought against Keller last month.

In her Dec. 13 motion to dismiss Richard v. Keller, et al., Keller contends that Michael Wayne Richard, through his counsel, failed to avail himself of Texas Rule of Appellate Procedure 9.2(a), which allows pleadings to be filed at any time directly with a judge on the CCA.

The rest of the article.


This was my first thought when the whole complaint came about. I haven't had to file with a judge, but I remember running one brief down to the Dallas Court of Appeals, getting stuck in traffic, and barely squeaking in before 5. I was on the cell phone with my office and preparing to call a judge to file it on time if need be. I can't believe that these fancy DP lawyers wouldn't know about the rule too!

Clerk's can also accept papers after hours. A judge and a clerk at the court where I worked used to laugh about the judge's late night filings before she took the bench.

chicagotribune.com

N.J. passes bill to ban executions
Nationwide effect on Death Rows unclear

By Steve Mills, Tribune staff reporter Tribune news services contributed to this report

December 14, 2007

New Jersey on Thursday took a major step toward becoming the first state since 1965 to ban executions as the state Assembly voted to abolish the death penalty in favor of life without parole.

The bill, which Gov. Jon Corzine said he would sign within a week, would spare the eight men on the state's sparsely populated Death Row; their death sentences would be changed.

But the effect on Death Rows across the country is less certain. While the move is historic, New Jersey's Death Row is tiny compared to those of such busy death penalty states as Texas or Virginia, or those states with large Death Row populations, such as California or Florida.

Instead, it may prompt states with small Death Rows that rarely carry out executions -- and that have considered similar legislation -- to take the step and also ban capital punishment.

"It's highly unlikely that active death penalty states ... will follow the lead of New Jersey any time soon," said David Dow, a professor at the University of Houston Law Center who also represents Death Row inmates. "I don't think this is the beginning of legislative abolition. It may be the beginning of the beginning of legislative reconsideration."

Indeed, as the death penalty debate has changed over the last decade, fueled by a growing number of Death Row and DNA exonerations and media investigations that have suggested innocent people have been executed, many states have reconsidered their death penalty laws. Illinois declared a moratorium in 2000, while several other states have conducted extensive studies of their death penalty laws.

Some state legislatures have had close votes on abolition, according to Richard Dieter, executive director of the Death Penalty Information Center, which opposes the death penalty.

Bills in Montana and New Mexico passed one house of the state legislature but not the second. In Nebraska, supporters came within one vote of enacting an abolition law. A Colorado legislative committee passed a bill, but it failed to get out of either house, according to Dieter.

"A lot of states have considered this," Dieter said. "It didn't occur in a vacuum that all of a sudden they decided to abolish the death penalty. There is a growing level of reconsideration."

A byproduct of New Jersey's move, particularly in states with small Death Row populations or states that rarely carry out executions, may be the growing isolation of the states with busy death chambers, such as Oklahoma, Virginia and the nation's leading executioner, Texas.

"It may not become obsolete," said Dieter, "but even states such as Texas that keep it may well be faced with the prospect that they'll be out of step with the rest of the country."

Already, the growing unease over the death penalty has led to fewer executions and death sentences. Along with a rising number of exonerations, the U.S. Supreme Court in recent years has banned executions of the mentally retarded and juveniles. The court has also taken up a case that raises questions about the country's execution method, lethal injection.

The nation's last execution was Sept. 25 in Texas. Since then, executions have been halted while the Supreme Court considers the lethal injection case. A decision is expected next year.

The U.S. has put to death 1,099 people since the Supreme Court reauthorized the death penalty in 1976. In 1999, 98 people were executed, the most since 1976; last year, 53 people were executed, the lowest since 1996.

Iowa and West Virginia halted executions in 1965.

Joshua Marquis, an Oregon prosecutor and vice president with the National District Attorneys Association, said the move in New Jersey would not be so momentous for the national death penalty debate.

And he noted that last year, a majority of Wisconsin residents approved an advisory referendum to bring the death penalty back to that state.

"New Jersey wasn't enthusiastically putting people to death in the first place," he said. "I don't see this as some kind of a sea change."

New Jersey's legislation followed the work of a special state commission that earlier this year found that the death penalty was a more expensive sentence than life in prison, had not been effective as a deterrent to murder and carried the risk of executing an innocent person.

The New Jersey Senate approved the bill on Monday. The state Assembly's approval came on Thursday in a 44-36 vote. Corzine, a Democrat, has pledged he would sign the bill.

"It's time New Jersey got out of the execution business," said Assemblyman Wilfredo Caraballo, a Democrat who supported the legislation. "Capital punishment is costly, discriminatory, immoral and barbaric. We're a better state than one that puts people to death."

Senate Republicans had sought to retain the death penalty for those who murder law-enforcement officials, rape and murder children, and for terrorists, but the Senate rejected the idea.

Democrats control New Jersey's Legislature.

Among the Death Row inmates who would be spared is Jesse Timmendequas, a sex offender convicted of murdering 7-year-old Megan Kanka in 1994.

That case sparked Megan's Law, which requires law-enforcement agencies to notify the public about convicted sex offenders living in their communities. Megan's parents had urged the New Jersey Legislature not to strike down the death penalty.

"The key fact," said Dow, who has handled numerous cases and written a book about capital punishment, "is that New Jersey is a state that has had a death penalty law but hasn't been active."

"It may not become obsolete," said Dieter, "but even states such as Texas that keep it may well be faced with the prospect that they'll be out of step with the rest of the country."

By my count, 37 states still have the death penalty, and nationwide polls consistently show that the majority of the population supports the death penalty. Wouldn't that mean it's NJ that's "out of step with the rest of the country"?

I have a compliment and a criticism of that ChiTrib article:

Pro: they admitted that the DPIC opposes the death penalty. For years, the media has tried to portray the DPIC as some neutral, non-partisan think tank on death penalty issues -- it's good to see that sham has ended.

Con: New Jersey has not executed anyone since 1963. 1963! The Tribune never mentions that -- then again, if they did, this becomes almost a non-story.

Well, last session, Texas added a new crime to the capital felony category (super aggravated sexual assault of a child). So, does that mean that it all evens out?

Why do all states need to be the same? Why is that seen as a positive by Mr. Dieter?

In our country with such a diverse educational, economical, and ethnic population, no states should feel compelled to make state laws in any way other than what the citizens of that state want. If New Jersey doesn't want to execute murderers, then I guess that's their perogative, but that doesn't change my belief in what Texas should do!

quote:

---

If New Jersey doesn't want to execute murderers, then I guess that's their perogative, but that doesn't change my belief in what Texas should do!

---

Actually, according to a recent poll, 53% of New Jersey residents oppose eliminating the death penalty. So I don't know if you can even say "New Jersey" doesn't want to execute. Apparently one of their Supreme Court judges has said for years that he would do anything he could to prevent the state from executing anyone, and they've done just that. It's not so much the NJ legislature making a big policy decision as deciding not to bother with something their courts won't enforce.

For Dieter's purposes, all states don't need to be the same. As long as he can show about 40% of the states have bit on an idea, the Supreme Court will misapply the word "consensus" in his favor.

And the problem with that "consensus" approach is that it's a one-way trip. The DP is constitutional so long as a majority support it. But, if a minority of states change that opinion, then the "consensus" can be that the DP is unconstitutional. And, of course, once it is declared unconstitutional, a majority can no longer reinstate it, except by a constitutional amendment, which requires a 2/3rds majority. Ah, the insanity.

Opinion goes up and down over the years... Just wait until the next McVeigh-esque attack and launch a drive for a Constitutional amendment affirming the State's right to execute killers...

"Elsewhere, the state of New Jersey banned capital punishment, arguing that living in New Jersey was bad enough."

Don't count out the death penalty yet.

Benjamin Wittes, The New Republic

Published: Monday, January 07, 2008


These are heady days for anti-death penalty activists. New Jersey has taken the plunge and legislatively repealed capital punishment--becoming the first state in the modern era to do so. Today, the Court will hear arguments over whether the specific drug cocktail used in lethal injections constitutes cruel and unusual punishment by causing too much pain to the condemned. By taking up the issue, the Court has effectively frozen all executions in the nation. And no state other than Texas (a significant exception) executed more than three people last year. The news has the anti-capital punishment Death Penalty Information Center (DPIC) proclaiming the "execution chambers silent" as the Garden State charts a "new direction" and declaring both actions symbolic of the "broad changes that have been occurring in the death penalty around the country."

Curb your enthusiasm. The death penalty is, like the Iraqi insurgency, not quite yet in its death throes. While capital punishment appears on the wane right now, neither New Jersey's action nor the temporary national freeze--particularly the latter--may mean all that much in the long run.

Don't get me wrong. Foes of the death penalty have good reason for cheer right now. In 1999, 98 people met their ends in execution chambers across the country, the culmination of a long revitalization of capital punishment following the Supreme Court's reinstatement of its lawfulness in 1976. Then, just as executions seemed to have become a routine part of our criminal justice system again, the numbers began a precipitous drop--to 85 executions in 2000, 59 in 2004, and 53 in 2006. In 2007, according to DPIC's data, that number dropped even further. The 42 people put to death in 2007 represent the lowest figure in 13 years and a drop of fully 57 percent since capital punishment's peak.

The de facto moratorium created by the Supreme Court case is a significant contributor to 2007's sharp drop. But after the court either strikes down the current mixture or okays it, executions will resume--perhaps using a different combination of drugs--and clearing the backlog will probably immediately lead to a brief spike.

Still, the downward trend is both broader and older than the current flap over the drugs. The annual number of people sentenced to death row has fallen since its peak in 2002. In 2007, according to DPIC, saw a historic low in new death sentences. And capital punishment, which has always been a regional phenomenon, has been growing ever more so. In 2002, for example, 65 percent of executions took place in only three states; the following year, the top three states accounted for 69 percent. In 2007, by contrast, Texas alone accounted for 62 percent of executions; the top three states accounted for 76 percent; and the top six states accounted for 90 percent. Meanwhile, not only did New Jersey dispense with its death penalty, but several other states actively considered abolition as well.

Something has clearly changed. The trouble for capital punishment opponents is that it's a lot less clear what's driving that change--or how to translate that force into abolition in the 36 states that retain execution as a criminal justice option.

Because one thing that's clearly not driving the shift is public opinion. Polls vary, but most show between 65 percent and 70 percent support for capital punishment, somewhat lower than during the peak period of its popularity during the 1990s but still strong and stable. While most Americans say they believe innocent people have been executed and that the death penalty does not act as deterrent, that doesn't seem to dampen their enthusiasm for it. In an ABC News/Washington Post poll, respondents preferred death to life in prison without parole for persons convicted of murder by about the same margins as they did in 2000. And in Gallup polling, many more Americans say they believe the death penalty is used "not enough" (51 percent) than "too often" (21 percent). Even in New Jersey, where legislators voted to ban capital punishment, voters disagree: A recent Quinnipiac poll found that Garden State residents oppose eliminating the death penalty by 53 percent to 39 percent.

Nor are the courts chiefly behind the change. Yes, in recent years, the Supreme Court has shifted gears on the death penalty and gone from enabling it to pecking away at it. It has banned executions of mentally retarded offenders and those who committed their crimes while juveniles. It has overturned convictions in cases plagued by particularly unfair trials, when for example prosecutors grossly manipulated the racial composition of a jury. It has opened the door a little wider to innocence claims. And the justices may well insist this term that states make executions a little more comfortable for the condemned. But all of this lies at the death penalty's margins. The high court is not about to stop states that wish to conduct executions, and its doctrinal maneuvering does not remotely account for the nearly 60 percent drop in executions the country has seen.

So what does? Unfortunately for opponents of capital punishment, the most significant factor seems to be no kind of public reevaluation of the policy but simply the declining prevalence of murder. The murder rate in the United States dropped by about 40 percent between its peak in the early 1990s and the turn of the millennium and has remained more or less flat since. The absolute number of murders has come down significantly too, from nearly 25,000 in 1991 to barely 17,000 last year, according to FBI statistics.

This shift has had two effects. The more direct one is simply to reduce the number of death-eligible crimes and, therefore, prosecutions. More diffusely, reducing crime means reducing public fear of crime, which in turn erodes the momentum behind capital punishment. While the change has not dramatically altered its political support, it seems to give everyone a little more pause in its implementation. Prosecutors may feel less pressure to push for death, judges less pressure to affirm a conviction or sentence. Jurors may hear defense arguments against death with a more open mind. Governors may contemplate clemency a little more freely. All of this has probably been compounded by the slew of cases in which states have freed innocent people from death row or from lengthy prison terms based on DNA evidence. Whereas ten years ago, America had a large volume of cases and was erring on the side of the death penalty, today it has a smaller volume, about which participants at every stage seem to feel more anxiety.

But the murder rate will not stay down forever. And if we are seeing not the beginning of the end but a kind of lull--a period in which the solid majority in favor of capital punishment does not care enough about it to keep it vibrant--the only hope for death penalty opponents is to use this period to lock in systemic reforms that will inhibit its rebound when the tide turns. If that's the goal, they're going to have to do better than abolition in New Jersey, a state that had capital punishment on its books but never actually used it. Unless they can generate similar legislative gains elsewhere--and there have been some but not enough--the decline will prove ephemeral and the New Jersey victory, not to mention the current national pause, will seem hollow indeed.

BENJAMIN WITTES is a Fellow and Research Director in Public Law at The Brookings Institution and a member of the Hoover Institution Task Force on National Security and Law.

While I take issue with the authors use of the word "reform" because it assumes that the death penalty needs reforming without actually making any real arguments to that effect. (He pulls a double whammy with this type of chicanery when he analogizes the death penalty to the Iraqi insurgency - as the Bud Light commercials would say, "Dude.")

But this systemic change is exactly what Baze v. Rees is about. The three drug monte is not an attempt to get States to change the drug protocols, it's an attempt to get the the Court to change the standard by which methods of execution are viewed. (That's also what Panetti was about, give us a new rule so we can play with it.) Ideally, the anti-death penalty crowd would like to define up the qualifications for those who administer the death penalty so that it will be a punishment impossible to apply, but that would be gravy. The real goal is to get the Court to include some sort of comparative analysis in the review so that arguments can always be made that this method isn't as painless as the next method they've just hit upon that no one is using yet.

This is why the next Supreme Court appointment is crucial to both sides of the debate.