Search lethal injection

Yesterday, within an hour of his scheduled execution, Hank Skinner request to the United States Supreme Court was granted, and the High Court stayed his execution by the State of Texas via lethal injection.  We posted on Mr. Skinner’s case earlier this week:  he continues to proclaim his innocence – has never veered from this – and a significant amount of DNA evidence has never been tested. 

It seems that the defense never did the DNA testing on knives and other items during the trial, and while the items still set there, no one has ever checked to see if Texas got the right man. 

Now, it’s possible that once DNA testing is done, the State of Texas will have to recognize that it has tried, convicted, and almost killed an innocent man for the murder of his ex-girlfriend and her two adult sons. 

The case, 09-9000, will be decided by SCOTUS within the next thirty days. 

And on the same day, the U.S. Supreme Court heard oral argument in the case of Magwood v. Peterson (09-158), where Justice John Paul Stevens pointed to the Elephant in the Room — whether or not Magwood is not eligible for the death penalty was never determined in the case, and the State is now wanting to execute him because the defense didn’t prove up the ineligibility in proper procedural time. 

Billy Joe Magwood was tried and convicted for the1979 killing of an Alabama sheriff, and he was sentenced to death in 1981.  However, under Alabama law, capital punishment is only available when certain aggravating factors exist – and Magwood’s never fit into these categories. 

Since his case never met the statutory standards, it’s being argued to the High Court that he shouldn’t be killed by the state.  The state attorney, of course, argues that Magwood’s argument is barred.  Waived. Adjudicated.  Whatever.

Mr. Skinner and Mr. Magwood sit on Death Row.  The States of Texas and Alabama, respectively, want to kill them.  Skinner may be innocent.  INNOCENT.  Magwood should NEVER have been sentenced to death for his crime, under the very same state’s law that now seeks to kill him.

In both cases, different defense efforts might have kept these cases from ever being before the High Court, but they didn’t happen.  These are two ineffective assistance of counsel cases. 

Now, we watch and learn:  how much is procedure to be valued — the "finality of the process" — over the live of an individual??? 

The U.S. Supreme Court is about to tell us.  Watch and learn.   

The Execution of Hank Skinner is on schedule.  Hank Skinner will die by lethal injection over in Texas unless something happens within the next few hours to stop it. 

The Hank Skinner Case – We Could Know the Truth, If DNA Testing Is Done

Texas is notorious for its active implementation of the death penalty, just as California is known for avoiding its capital punishment option.  Why is the Hank Skinner case such a big deal?

Because Hank Skinner says he’s innocent — and Hank Skinner may well BE INNOCENT.  We’re not sure – but there’s a way to know:  have DNA testing done on Skinner, and compare it with the evidence from the crime scene. 

UT Law professor Rob Owens, counsel for Hank Skinner, asks the simple question: why not?  Why not do the DNA testing before the execution?  Good question. 

Hank Skinner is Set to Die Tomorrow – Before DNA Testing Can Be Done

Last week, the Texas Court of Criminal Appeals nixed doing anything to stop the Skinner execution.  That’s the court headed by Chief Justice Sharon Keller, who’s facing possible removal for her actions during another 11th hour execution.

Now, Skinner has only two options — Governor Perry can order a 30 day reprieve (allowing DNA testing in the interim) or the United States Supreme Court can act.  The High Court has been asked to stay the execution, in part because at trial, Skinner’s court appointed attorney failed to test bloody knives and other evidence at the crime scene for DNA, to rule out his client as the killer.  (Skinner has been convicted of killing his girlfriend and her two adult sons on New Year’s Eve 1993.) 

Texans are crying out for Governor Perry to halt tomorrow’s execution and order the testing. Lots of folk all around the world are waiting and watching to see what Rick Perry (who’s up for re-election this year) will do. 

What can you do to help?

The Innocence Project has an online petition that is easy to complete, and send over to the Texas Governor’s office. Governor Perry’s phone number?  (512) 463-2000.  Just in case you’d like to know ….

Late last month, we published a list of Supreme Court precedent over at JD Supra, in a .pdf format (Terry Lenamon’s List of Major United States Supreme Court Death Penalty Cases:Furman v. Georgia (1972) to Harbison v. Bell (2009)). 

Suddenly, over at Twitter, my fellow Tweeters @Joachim65 (aka Joachim Kubler of Germany, blogging at Todesstrafe USA (use GoogleTranslate!)) and @TheOptimistClub (founded by Kathy Brown, blogging at The Optimist Club) had already found the list, and were spreading the word in the Twitter Universe.  @OdellaWilson was giving @TerryLenamon praise (wow) and things were getting Retweeted … which was all very amazing and complimentary and wonderful. 

So, looks like this list may be helpful, right?  Good!  Here it is again, placed here in the blog, where it’s searchable and NOT in a .pdf format, however helpful that might be.  For instance, the links to the full opinions show up in the .pdf format, but maybe they are easier to use in the blog site (maybe?). 

For a full search on all things death penalty by the U.S. Supreme Court (or any other topic, for that matter), Cornell University provides a great search tool with its online library.  Cases are even divided into majority opinion vs dissents, etc.  Very handy. 

Now, here’s the list.  Caveat:  it’s not every case where the High Court deals with capital punishment, nor is it the only list that deals with US Supreme Court cases on the death penalty.  What is hopefully helpful here is that this list: (1) culls out the overturned cases and (2) provides the links to the full opinions so you can jump there to read the case itself. 

Terry Lenamon’s List of Major United States Supreme Court Death Penalty Cases:Furman v. Georgia (1972) to Harbison v. Bell (2009)

In 1972, the United States Supreme Court effectively halted the death penalty in this country with its opinion in Furman v. Georgia. However, the moratorium was short-lived and four years later, the government was again free to kill its citizens as punishment for certain crimes. 

 

For easy reference, here are the major High Court’s decisions dealing with the death penalty from Furman forward (excluding those that have been overruled by later precedent), hyperlinked to the full opinion:

 

1972

Furman v. Georgia

Requires consistency in execution, i.e., consistency in the states’ application of death.

 

1976

Gregg v. Georgia

Reaffirmed use of the death penalty after the states had passed legislation that met the Furman requirements.

 

1977

Coker v. Georgia

Under 8th Amendment, death penalty is not acceptable (i.e., constitutional) punishment for crime of rape of an adult woman when murder not involved, i.e., the victim is not killed. Effectively set the standard that capital punishment should only be imposed when the underlying crime involved the death of another. 

 

1978

Lockett v. Ohio

Sentencing authorities cannot be limited to a list of factors when deciding on imposing capital punishment; constitutionally, they are to have the ability to consider all mitigating factors.

 

1982

Enmund v. Florida

No death penalty for someone who does participate in a felony but not involved in killing – no intent to kill, no attempt (successful or not) to do so.

 

1985

Glass v. Louisiana

Death penalty by electric chair (electrocution) is constitutionally acceptable.

 

1986

Ford v. Wainwright

No death penalty for insane persons.

 

1987

Tison v. Arizona

Death penalty acceptable for defendant convicted of felony murder, who was a major participant and who shows an “extreme indifference to human life.”

 

1988

Lowenfield v. Phelps

State’s determination of which individuals are eligible for the death penalty can be done by statute (legislature decision) or by findings of aggravating circumstances (courtroom decision).

 

1988

Thompson v. Oklahoma

No Death Penalty for children who are 15 years old or younger at the time that the crime is committed.

 

1992

Morgan v. Illinois

In jury selection, the defense can challenge for cause anyone in the jury pool who says they would vote for death penalty in every case.

 

2002

Ring v. Arizona

Death Penalty cannot be imposed unless there is a jury (not judge) determination of the necessary aggravating factors because this is a part of the defendant’s constitutional right to a jury trial. (In 2004, Schriro v. Summerlin refused to apply this retroactively.)

 

2002

Atkins v. Virginia

No Death Penalty of mentally retarded defendants.

 

2004

Tennard v. Dretke

In capital punishment case, all mitigating factors must be considered in both the guilt phase and the penalty (sentencing) phase.

 

2005

Roper v. Simmons

No death penalty for anyone who was under 18 years old when the crime was committed, i.e., juvenile offenders.

 

2006

Oregon v. Guzek

It is constitutional for a judge to limit the sentencing phase evidence of a defendant’s innocence to that which was presented in the trial phase.

 

2006

Kansas v. Marsh

Death penalty can be imposed even though both mitigating and aggravating factors exist.

 

2006

House v. Bell

On appeal, post-conviction DNA forensic evidence can be presented in death penalty cases.

 

2008

Baze v. Rees

Lethal injection (three drug) method acceptable form of execution.

 

2008

Kennedy v. Louisiana

No death penalty for any crime "where the victim’s life was not taken."

 

2009

Harbison v. Bell

When the state refuses to provide habeas counsel in post-conviction clemency proceedings, the constitutional right to counsel mandates that federally-funded legal counsel be provided to indigent death row inmates.

As you’ll recall, the Chief Justice for the highest criminal court in the State of Texas was on trial in August 2009 for her alleged bad acts on the day that Michael Richard was executed. 

The same day that the United States Supreme Court issued a ruling that Richard’s attorneys argued should have stayed that execution, but whose motion to stay never made it to the court for consideration because of some logistical problems that afternoon.  Logistics that revolved around Justice Keller, who was at home meeting with repairmen that fateful day. 

You’ll remember — when the attorneys got to the high court, the doors were locked.   It was 20 minutes after 5.  When they called the lackey inside, who then called Chief Justice Keller at home for guidance, she said the clerk’s office always closes at 5 pm.  Nevermind that Justices were on stand-by for this motion.  Everyone knew it was coming, including Justice Cheryl Johnson, the justice on call that day for emergency motions.

Michael Richard was executed by lethal injection within hours of Chief Justice Keller’s dismissive phone response. 

So, a trial was had and a state district judge, David Berchelmann, was assigned to act as fact-finder in the trial of Justice Keller,  His findings then go to the state’s Judicial Commission for final disposition (removal, etc.). 

The fact-finding judge issued his report last week.  And he’s apparently so sympathetic with the "public humiliation" that the Chief Justice has already experienced that he thinks she’s suffered enough.  However, if you actually READ his opinion, it’s very curious.

Substantively, he’s arguing that the Chief Justice didn’t violate any rule, and then he explains (on page seven) that the "tradition" or "rule" of having a justice on duty to answer queries like the ones made by Richard’s attorneys may have been ignored.  Like maybe ignoring having Justice Johnson take the call, having Justice Johnson run with the ball, instead of shutting things down with "the clerk’s office closes at five"?

Experienced jurists and experienced criminal defense appellate attorneys know that there are occasions when filings are placed before the court after the standard close of business.  Especially on days when the United States Supreme Court makes rulings that impact the possibility of stay in death penalty cases. 

This fact finding report is shocking.  One can only wonder what the State of Texas will do next. 

 

For other responses to Judge Berchelmann’s report:

Gamso for the Defense

Grits for Breakfast

Dallas Morning News

Houston Chronicle (great headline here, "Keller is lucky judge wasn’t just like her.")

 

 

Robert Lee McConnell was set to die on February 1st at the hand of executioners for the state of Nevada, until yesterday when a federal court intervened, granting his motion to stay.  It’s the second time that Mr. McConnell has faced that last walk — he was previously set to be executed back in 2005.  Then, the execution was less than half-hour away when a stay was granted.  In 2005, McConnell had announced to everyone that he was ready to die. 

One wonders what that’s like — sitting on Death Row, being moved to the Carson City prison where Nevada kills its prisoners, setting your affairs in order and spending what you think are your last days on earth, only to find that they’re not your last days.  Especially when it’s happened to you twice.

Robert Lee McConnell took responsibility for a terrible mistake that he made when he murdered his ex-girlfriend’s fiance back in 2002.  He pled guilty to the crime. 

Robert Lee McConnell also represented himself, both at trial and in this latest motion for stay.  In a request that exceeded 160 pages, McConnell asked Federal District Court Judge Robert Jones to halt the execution arguing in part that the death sentence was fundementally unfair.  (McConnell seems to be somewhat a jailhouse lawyer, having had his appeals to the Nevada Supreme Court heard – and rejected – last July, where he challenged the constitutionality of the lethal injection method of execution. )

Judge Jones has granted the stay, and ordered that McConnell have one month to file the appropriate petitions as well as having legal counsel appointed to assist him in that task. 

Of some note, the American Civil Liberties Union (ACLU) was litigating the constitutionality of Nevada’s lethal injection method of execution in 2007, and Nevada took the challenge seriously enough to stay the execution of William Castillo, a man who had asked for the death penalty. Nevada was planning on upping the drug cocktail to double the standard amount, as well as giving Castillo a mandatory sedative.  It was only when the ACLU dropped its suit that Nevada started back with capital punishment.  Castillo’s case remains on appeal. (By the way, they call these folk "volunteers" when they want to die rather than live any longer in state imprisonment.  Chilling, isn’t it?)

What McConnell will argue on his latest appeal will be interesting to follow. 

Not only does he (and his newly appointed counsel) have the recent ACLU challenge to reference, as well as whatever additional appellate points they will address, they also proceed in an environment where more and more people are recognizing that powerful, powerful reality: it is simply cheaper to allow prisoners like Mr. McConnell to remain behind bars than it is to continue with capital punishment.  

There are some pretty tough death penalty defense lawyers over in Ohio and they are really showing there stuff right now, charging out of the gate here at the beginning of the new year with strong challenges to Ohio’s practice of capital punishment.

Recap – Death Penalty in Ohio for the Past Six Months

As you’ll recall from our earlier discussion, Ohio patted itself on the back last month when it became the first state in the union to execute a man using the single drug lethal injection method.  On December 8, 2009, Kenneth Biros died after state executioners essentially injected a large amount of anesthesia into his veins.  And, if that reminds you of the procedure they use to "put down" beloved pets at the vet’s office, it should.  It’s the same thing – massive anesthesia has been used for years to euthenize dogs and cats. 

Ohio opted for a single drug injection method instead of halting executions in the state after its notoriously horrific attempt at executing Romell Broom in September 2009.  Broom lay strapped to the Death Gurney for over two hours, sobbing (witnesses testified to this), as Ohio executioners tried to kill him with injection needles that were incapable of insertion.  Somehow, these trained personnel were not able to insert a needle into Mr. Broom in order to inject the toxins so he would die.  Finally, the execution was aborted and Mr. Broom returned to his cell. 

Of course, cries of unconstitutionality in the Broom execution immediately rang out, a temporary stay was granted, and his case taken to the courts.  However, that’s not all that is happening in Ohio today.

Attorneys representing several Death Row inmates have filed arguments with the courts, challenging the procedures that the State of Ohio uses in its manner of execution.  This is a next-door challenge to the actual lethal injection of drugs itself, and it’s a powerful challenge given the facts that are coming to light.

For example, just last Friday lawyers for Romell Broom (Timothy Sweeney and Adele Shank) filed arguments in federal court against the constitutionality of Broom’s death sentence, based in part on the inadequate training of his executors. 

Crux of Broom’s Argument: Team Member 21

One of the men that tried to find Broom’s veins that day had a past employment history in the medical field as a licensed EMT (emergency medical technician), but he hadn’t worked in that capacity for years.  Who knows how long it had been since he’d last tried to insert a needle into a human arm.  The Death Chamber wasn’t the place for him to practice his atrophied nursing skills.  Add to that fact this one: he wasn’t given any training by the Prison before trying to kill Broom on September 15th. 

Furthermore, this guy didn’t bother to attend the rehearsals (yes, they rehearse the execution).  Labelled "Team Member 21" in the court filings, he was one of two men responsible for carrying out the capital punishment that day on Romell Broom. 

Even dogs and cats get a trained professional to assist them when they’re euthanised.  How Ohio is not hanging its head in shame over this entire situation is amazing…. 

We send wishes for good luck as well as our prayers to our capital defense bretheren in Ohio for victory in this long, hard fight.  

Once again, using the information collected by the Death Penalty Information Center (what a great organization) and our own work here on this blog since March 2009, we know the following:

1.  The following states still allow the penalty of death for certain crimes, although New Mexico removed itself from this list in 2009, as it became the 15th state to abolish the death penalty:

Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana, Georgia, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington and Wyoming.

2.  During 2009, some significant steps were taken in ten  (10) of the above listed states to end capital punishment: notably, in Connecticut, the state legislature actually passed a law that would have ended the death penalty but the state governor vetoed the bill. 

3.  Both the federal government and the United States Military still allow the penalty of death for certain crimes. 

4.  Executions are on hold in California, Maryland, Kentucky, and in the federal justice system because of pending judicial review related to the lethal injection method of executing a human being.

5.  This year, nine innocent men were freed after serving years on Death Row: 

  1. Yancy Douglas (OK) (conviction overturned and charges dismissed without re-trial)
  2. Nathson Fields (IL)(conviction overturned and acquitted after re-trial)
  3. Paul House (TN) (conviction overturned and charges dismissed without re-trial)
  4. Herman Lindsey (FL) (conviction overturned and acquitted after re-trial)
  5. Ronald Kitchen (IL) (conviction overturned and charges dismissed without re-trial)
  6. Daniel Moore (AL) (conviction overturned and acquitted after re-trial)
  7. Peris Powell (OK) (conviction overturned and charges dismissed without re-trial)
  8. Robert Springsteen (TX) (conviction overturned and charges dismissed without re-trial)
  9. Michael Toney (TX) (conviction overturned and charges dismissed without re-trial).

Over 3300 men and women set on Death Row today, awaiting execution.  Among them sits Troy Davis, whom many, many, many people believe to be innocent.  (We’ve discussed Mr. Davis’ case earlier this year, and we’re monitoring his case.)  The number of executions annually continues to decline.  Media outcry surrounding the executed of an innocent man in 2004 (Cameron Todd Willingham) and the fiscal realities of the expense of  pursuing the death penalty in these recessionary times seem to be the two biggest weapons in abolishing the death penalty that we’ve seen this year.

Progress is being made, thank God.  May He have mercy on us all.

With thanks to the Death Penalty Information Center’s excellent recordkeeping, here is a list of those who were executed so far this year, in alphabetical order by state.   While it is a blessing that capital punishment appears to be on the decline in this country, it will be truly a joyous occasion when this list for a future year will be blank.  Of note: all these executions were by the standard multi-drug lethal injection except for Ohio’s Ken Biros, which involved a single drug lethal injection and Virginia’s Larry Bill Elliot, who was executed by electrocution (electric chair).  The oldest executed was Georgia’s 65 year old Robert Newland, and the youngest was Texas’ Derrick Johnson, who died at age 28. : ALABAMA Danny Joe Bradley, 49 , by Lethal Injection James Callahan, 62, by Lethal Injection Jimmy Lee Dill, 49, by Lethal Injection Willie McNair, 44, by Lethal Injection Max Payne, 38, by Lethal Injection Jack Trawick, 62, by Lethal Injection FLORIDA John Richard Marek, 45, by Lethal Injection Wayne Tompkins, 51, by Lethal Injection GEORGIA Mark McClain, 42, by Lethal Injection William Mark Mize, 52, by Lethal Injection Robert Newland, 65, by Lethal Injection INDIANA Matthew Eric Wrinkles, 49, by Lethal Injection MISSOURI Dennis Skillicorn, 49, by Lethal Injection OHIO Kenneth Biros, 51, by Lethal Injection – SINGLE DRUG John Fautenberry, 46, by Lethal Injection Jason Getsy, 33, by Lethal Injection Marvallous Keene, 36, by Lethal Injection Daniel Wilson, 39, by Lethal Injection OKLAHOMA Darwin Brown, 32, by Lethal Injection Michael DeLozier, 32, by Lethal Injection Donald Gilson, 48, by Lethal Injection SOUTH CAROLINA Thomas Ivey, 34, by Lethal Injection Luke Williams, 56 , by Lethal Injection TENNESSEE Steve Henley, 55, by Lethal Injection Cecil Johnson, Jr., 53, by Lethal Injection TEXAS Reginald Blanton, 28, by Lethal Injection Christopher Coleman, 37, by Lethal Injection Terry Hankins, 34, by Lethal Injection Derrick Johnson, 28, by Lethal Injection Johnny Johnson, 51, by Lethal Injection David Martinez, 36, by Lethal Injection James Edward Martinez, 34, by Lethal Injection Virgil Martinez, 41, by Lethal Injection Stephen Moody, 52, by Lethal Injection Curtis Moore, 40, byLethal Injection Frank Moore, 49, by Lethal Injection Kenneth Morris, 38, by Lethal Injection Khristian Oliver, 32, by Lethal Injection Ricardo Ortiz, 46, by Lethal Injection Reginald Perkins, 53, by Lethal Injection Willie Pondexter, 34, by Lethal Injection Michael Lynn Riley, 51, by Lethal Injection Michael Rosales, 35, by Lethal Injection Luis Salazar, 38, by Lethal Injection Dale Scheanette, 35, by Lethal Injection Danielle Simpson, 30, by Lethal Injection Robert Thompson, 34, by Lethal Injection Yosvanis Valle , 34, by Lethal Injection Bobby Wayne Woods, 44, by Lethal Injection VIRGINIA Edward Bell, 44, by Lethal Injection Larry Bill Elliot, 60, by Electric Chair John Allen Muhammad, 48, by Lethal Injection

Death Row inmate Romell Broom was setting in the courtroom this week as his attorneys stood ready for an evidentiary hearing that would take a couple of days in front of Federal District Judge Gregory Frost.  Romell Broom sat there, ready to testify. Think of it — Broom left his small Death Row cell to set in that public courtroom, look out at all those faces and tell about the pain and suffering he experienced on that gurney as his executioners spent over two hours trying to find a vein in which a needle could be inserted.  We’ve posted about this earlier – including the media reports that Broom was "sobbing in pain" that day.  The hearing was based upon Broom’s motion.  Romell Broom is seeking to stop his scheduled execution by Ohio by arguing that it is unconstitutional for the State of Ohio to try and kill him a second time after its horrific failure to execute him earlier this year by lethal injection.  Judge Frost doesn’t hold a evidentiary hearing  Surprising some, Judge Frost took the bench and soon thereafter advised everyone that he wouldn’t be hearing testimony in the Broom matter.  Nope.  According to Judge Frost, he’s really able to decide only a narrow question of the law.  No fact-finding is needed, so no testimony would be taken.  Attorneys were asked to file their arguments addressing the issue, and the Judge would rule based upon the paper.  Judge Frost did give everyone a big hint — he’s stated that he doesn’t see how Broom can circumvent the decision made by the Sixth Circuit Court of Appeals and denied review by the United States Supreme Court earlier this week in the Biros case.  Ken Biros died as a guinea pig to the new Ohio single-drug injection method.  What is Judge Frost Going to Decide? All that Judge Frost is going to answer is the limited question of whether or not the State of Ohio, after it has failed to execute an inmate, has the right under law to try again.  And while it is critical to consider the pain and suffering that Romell Broom experienced on that gurney that day, Frost is saying that he’s not hearing anything on pain because of the federal appellate court ruling Monday in Kenneth Biros’s case. On Monday, Biros unsuccessfully argued that the method of execution Ohio would be using hadn’t been vetted and Ohio couldn’t show that the execution method couldn’t cause severe pain.  Severe pain during an execution violates the prohibition of cruel and unusual punishment of the U.S. Constitution.  The appellate court specifically stated that Biros had provided no evidence on pain.  Arguing about the pain that might occur during an untested method of execution seems easily distinguishable from an argument concerning the two bites at the apple situation facing Broom.  Yet Judge Frost is moving forward without any evidence on pain — there was no evidence on pain in the Biros appellate record and he’s prohibiting having Romell Broom take the stand in the present case.  Given this factual vacuum and the precedent of Louisiana v. Resweber, 329 US 459 (1946), where the failure of an electric chair during an initial execution did not prevent the second execution from proceeding, what Judge Frost is going to rule probably isn’t that hard to predict regardless of whether your perspective is based upon double jeopardy, due process, or cruel and unusual punishment.

Today, the Kentucky Supreme Court issued a ruling that no one is going to be executed in the State of Kentucky until things are done by the book regarding the lethal injection killing method.  The high court set no deadline on when capital punishment might resume in Kentucky, either.  Its formal opinion is already published online at the court’s official web site.

The story starts with Ralph Baze

Ralph Baze sits on Kentucky’s Death Row after being convicted and sentenced to death by lethal injection for the murder of Sheriff Steve Bennett and Deputy Arthur Briscoe of Powell County, Kentucky, back in 1992 while the lawmen were trying to arrest him.  (Baze unsuccessfully urged self-defense.)   After his conviction, Baze joined with fellow Death Row inmate Thomas Clyde Bowling, Jr. in a constitutional fight.

Baze and Bowling both argued by appeal that execution of someone with the three drug “cocktail” established by Kentucky law (and used here in Florida, as described in our earlier series) constitutes cruel and unusual punishment and is therefore unconstitutional under the 8th Amendment. 

Baze v. Rees (Baze’s appeal) was heard by the United States Supreme Court, and in April 2008, that court ruled that the three drug cocktail did not violate the constitution.  Ginsburg and Souter dissented.

Baze did not stop there.  He then urged a state appeal (joining with Bowling) challenging state procedure, and the Kentucky Supreme Court has heard him. 

What the Kentucky Supreme Court Ruled Today

In today’s opinion, the state high court has found that the legal steps that are taken when Kentucky puts a condemned man (or woman) to death through the use of its three drug cocktail have to be specified — spelled out — in a state regulation.  

Writing for the majority, Justice Abramson states, “”[t]his court cannot ignore the publication and public hearing requirements set forth in Kentucky statutes.”  The opinion then orders the Kentucky Department of Corrections “…to adopt as an administrative regulation all portions of the protocol implementing the lethal injection statute….” 

This will take time.  An adminstrative regulation doesn’t just get voted upon by some group — due process requires much more than that.  What the Kentucky Supreme Court has done is to require the agency to write a regulation and then formally debut it as proposed law.  Then, the public gets a say in the matter as there is a set amount of time for public contributions on the language of the proposed regulation.  Things are discussed, edits may happen.  And only then is the proposal taken to Kentucky’s Administrative Regulation Review Subcommittee, an arm of the state legislature that votes to adopt/reject the proposal.