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History > 2008 > USA > Justice > Death penalty (I)





New Look at Death Sentences and Race


April 29, 2008
The New York Times


About 1,100 people have been executed in the United States in the last three decades. Harris County, Tex., which includes Houston, accounts for more than 100 of those executions. Indeed, Harris County has sent more people to the death chamber than any state but Texas itself.

Yet Harris County’s capital justice system has not been the subject of intensive research — until now. A new study to be published in The Houston Law Review this fall has found two sorts of racial disparities in the administration of the death penalty there, one commonplace and one surprising.

The unexceptional finding is that defendants who kill whites are more likely to be sentenced to death than those who kill blacks. More than 20 studies around the nation have come to similar conclusions.

But the new study also detected a more straightforward disparity. It found that the race of the defendant by itself plays a major role in explaining who is sentenced to death.

It has never been conclusively proven that, all else being equal, blacks are more likely to be sentenced to death than whites in the three decades since the Supreme Court reinstated the death penalty in 1976. Many experts, including some opposed to the death penalty, have said that evidence of that sort of direct discrimination is spotty and equivocal.

But the author of the new study, Scott Phillips, a professor of sociology and criminology at the University of Denver, found a robust relationship between race and the likelihood of being sentenced to death even after the race of the victim and other factors were held constant.

His statistics have profound implications. For every 100 black defendants and 100 white defendants indicted for capital murder in Harris County, Professor Phillips found that an average of 12 white defendants and 17 black ones would be sent to death row. In other words, Professor Phillips wrote, “five black defendants would be sentenced to the ultimate sanction because of race.”

Scott Durfee, the general counsel for the Harris County district attorney’s office, rejected Professor Phillips’s conclusions and said that district attorneys there had long taken steps to insulate themselves from knowing the race of defendants and victims as they decided whether to seek the death penalty.

“To the extent Professor Phillips indicates otherwise, all we can say is that you would have to look at each individual case,” Mr. Durfee said. “If you do that, I’m fairly sure that you would see that the decision was rational and reasonable.”

Indeed, the raw numbers support Mr. Durfee.

John B. Holmes Jr., the district attorney in the years Professor Phillips studied, 1992 to 1999, asked for the death sentence against 27 percent of the white defendants, 25 percent of the Hispanic defendants and 25 percent of the black defendants. (Professor Phillips studied 504 defendants indicted for the murders of 614 people. About half of the defendants were black; a quarter each were white and Hispanic.)

Mr. Holmes was, Professor Phillips said, selective but effective: he asked for the death sentence against 129 defendants and obtained 98.)

But Professor Phillips said that the numbers suggesting evenhandedness in seeking the death penalty did not tell the whole story. Once the kinds of murders committed by black defendants were taken into consideration — terrible, to be sure, but on average less heinous, less apt to involve vulnerable victims and brutality, and less often committed by an adult — “the bar appears to have been set lower for pursuing death against black defendants,” Professor Phillips concluded.

Professor Phillips wrote about percentages and not particular cases, but his data suggest that black defendants were overrepresented in cases involving shootings during robberies, while white defendants were more likely to have committed murders during rapes and kidnappings and to have beaten, stabbed or choked their victims.

When the nature of the crime is taken into account, Professor Phillips wrote, “the odds of a death trial are 1.75 times higher against black defendants than white defendants.” Harris County juries corrected for that disparity to an extent, so that the odds of a death sentence for black defendants after trial dropped to 1.49.

Jon Sorensen, a professor of justice studies at Prairie View A&M University in Texas, said he was suspicious of Professor Phillips’s methodology.

“It’s bizarre,” Professor Sorensen said. “It starts out with no evidence of racism. Then he controls for stuff.”

Moreover, Professor Sorensen said, Professor Phillips failed to take account of other significant factors, including the socioeconomic status of the victims.

Professor Sorensen said he remained convinced that racial disparities, if they exist at all, “are victim-based only,” as earlier studies have found.

This discussion, at least where the courts are concerned, is entirely academic. Twenty-one years ago, the Supreme Court ruled that even solid statistical evidence of racial disparities in the administration of the death penalty did not offend the Constitution. The vote was 5 to 4, and the case was McCleskey v. Kemp.

That ruling closed off what had seemed to opponents of the death penalty a promising line of attack, and they are still furious about it, comparing it to the court’s infamous 1857 decision that blacks slaves were property and not citizens.

“McCleskey is the Dred Scott decision of our time,” Anthony G. Amsterdam, a law professor at New York University, said in speech last year at Columbia.

“It is a decision for which our children’s children will reproach our generation and abhor the legal legacy we leave them,” said Professor Amsterdam, who worked on the McCleskey case and many other capital punishment landmarks.

The majority opinion in McCleskey was written by Justice Lewis F. Powell Jr. After he retired, his biographer asked Justice Powell whether, given the chance, he would change his vote in any case.

“Yes,” Justice Powell said. “McCleskey v. Kemp.”

    New Look at Death Sentences and Race, NYT, 29.4.2008, http://www.nytimes.com/2008/04/29/us/29bar.html?hp






11 Death Row Appeals Turned Down


April 22, 2008
The New York Times


WASHINGTON — The Supreme Court on Monday turned away appeals from 11 death row prisoners in seven states, including one who killed his adoptive parents and continued to live in their home as their bodies decomposed, then cleaned up the scene so he could have a party for friends.

The justices’ orders declining to review the cases were not unexpected, given the court’s ruling last week in a Kentucky case that the state’s procedure for lethal injections did not amount to unconstitutionally cruel and unusual punishment. Barriers to executions in other states may also be lifted soon.

Three of the cases that the high court refused to take on Monday were from Georgia, and three more from Ohio. Individual cases from Mississippi, Alabama, Missouri, Arizona and Texas were also turned away.

In Texas, Carlton Turner Jr. came close to being put to death last September, then was spared when the Supreme Court said it would consider the Kentucky case, in which two killers contended that Kentucky’s procedures could cause them unconstitutionally severe pain.

Mr. Turner was 19 in 1998, when he shot Carlton Turner Sr., 43, and his wife, Tonya, 40, several times in the head in their home near Dallas, and then went on a spending spree, using one of his parents’ credit cards to buy clothes and jewelry. After that, the defendant put the bodies in the garage before entertaining his friends at the house, prosecutors said. The crime was discovered after neighbors called the police because they had not seen Mr. and Mrs. Turner for days, but had seen Carlton Jr. driving his parents’ cars.

“People got killed,” the defendant said in a September 2007 interview, according to The Associated Press. “I did it. The only thing that matters is I did what I did.” He also said his time in prison had enabled him to “understand life a lot better and see my mistakes,” and that he knew it was wrong to kill his parents.

The defendant had been a disciplinary problem as a juvenile and had various brushes with the law before slaying his parents, the A.P. reported.

Among the other prisoners whose appeals were turned away on Monday were Earl W. Berry of Mississippi and Thomas Arthur of Alabama.

Mr. Berry, 48, was convicted of abducting and killing a woman in 1987 as she was walking home from church choir practice near Houston, Miss. The defendant, who is 6-1 and weighs 255 pounds, acknowledged beating the woman to death, explaining that he had intended to rape her, then changed his mind.

Mr. Berry had several previous convictions and had appealed his murder conviction on various other grounds before contesting the lethal-injection procedure. He had already eaten what was meant to be his last meal (pork chops) when he was granted a stay last fall, because of the pending Kentucky case.

In Alabama, Mr. Arthur, 65, has been on death row for more than two decades. In 1982, when he was on a work-release program while serving a sentence for a previous murder, he killed the husband of a girlfriend. For that crime, he was tried three times.

His first conviction was overturned by the Alabama Supreme Court, which found that the trial judge had improperly admitted evidence of the earlier murder. A later conviction was also overturned, because Mr. Arthur’s statement to the police was improperly admitted into evidence after he had invoked his right to remain silent. His third conviction was sustained on appeal.

    11 Death Row Appeals Turned Down, NYT, 22.4.2008, http://www.nytimes.com/2008/04/22/washington/21cnd-scotus.html?hp






Supreme Court Allows Lethal Injection for Execution


April 16, 2008
Filed at 12:23 p.m. ET
The New York Times


WASHINGTON (AP) -- The Supreme Court upheld the most common method of lethal injections executions Wednesday, clearing the way for states to resume executions that have been on hold for nearly 7 months.

The justices, by a 7-2 vote, turned back a constitutional challenge to the procedures in place in Kentucky, which uses three drugs to sedate, paralyze and kill inmates. Similar methods are used by roughly three dozen states.

The governor of Virginia lifted his state's moratorium on executions two hours after the high court issued its ruling.

''We ... agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment,'' Chief Justice John Roberts said in an opinion that garnered only three votes. Four other justices, however, agreed with the outcome.

Roberts' opinion did leave open subsequent challenges to lethal injection practices if a state refused to adopt an alternative method that significantly reduced the risk of severe pain.

Justices Ruth Bader Ginsburg and David Souter dissented.

Executions have been on hold since September, when the court agreed to hear the Kentucky case. There was no immediate indication when they would resume, but prosecutors in several states said they would seek new execution dates if the court ruled favorably in the Kentucky case.

Forty-two people were executed last year among more than 3,300 people on death row across the country. Another roughly two dozen executions did not go forward because of the Supreme Court's review, death penalty opponents said.

The argument against the three-drug protocol is that if the initial anesthetic does not take hold, the other two drugs can cause excruciating pain. One of those drugs, a paralytic, would render the prisoner unable to express his discomfort.

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

At the very least, they said, the state should be required to impose tighter controls on the three-drug process to ensure that the anesthetic is given properly.

Roberts said the one-drug method, frequently used in animal euthanasia, ''has problems of its own, and has never been tried by a single state.''

Kentucky has had only one execution by lethal injection and it did not present any obvious problems, both sides in the case agreed.

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

Roberts said ''a condemned prisoner cannot successfully challenge a state's method of execution merely by showing a slightly or marginally safer alternative.''

Ginsburg, in her dissent, said her colleagues should have asked Kentucky courts to consider whether the state includes adequate safeguards to ensure a prisoner is unconscious and thus unlikely to suffer severe pain.

Justice John Paul Stevens, while agreeing with the outcome, said the court's decision would not end the debate over lethal injection. ''I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself,'' Stevens said.

Stevens suggested that states could spare themselves legal costs and delays in executions by eliminating the use of the paralytic.

Ty Alper, a death penalty opponent and associate director of the Death Penalty Clinic at the University of California-Berkeley School of Law, said he expects challenges to lethal injections will continue in several states.

The Rev. Pat Delahanty, head of the Kentucky Coalition to Abolish the Death Penalty, said the ruling wasn't a surprise.

''We never expected it to do more than maybe slow down executions in Kentucky or elsewhere,'' Delahanty said. ''We're going to be facing some executions soon.''

    Supreme Court Allows Lethal Injection for Execution, NYT, 16.4.2008, http://www.nytimes.com/aponline/us/AP-Scotus-Lethal-Injection.html?hp






Supreme Court Allows Lethal Injection for Exection


April 16, 2008
Filed at 10:19 a.m. ET


WASHINGTON (Reuters) - The U.S. Supreme Court Wednesday rejected a challenge to the lethal three-drug cocktail used in most U.S. executions during the past 30 years.

By a 7-2 vote, the high court rejected a challenge by two Kentucky death row inmates who argued the current lethal injection method violated the constitutional ban on cruel and unusual punishment by inflicting needless pain and suffering.

    Supreme Court Allows Lethal Injection for Exection, R, 16.4.2008, http://www.nytimes.com/reuters/washington/politics-usa-execution-court.html






Court to consider death penalty for child rape


Sun Apr 13, 2008
7:28am EDT
By James Vicini


WASHINGTON (Reuters) - The U.S. Supreme Court this week hears arguments about whether the death penalty can be imposed for child rape, taking up for the first time in more than 30 years whether a crime other than murder can be punished by execution.

The nation's highest court has set arguments on Wednesday on whether the death penalty for the crime of raping a child represents unconstitutionally cruel and unusual punishment.

It will be the second major death penalty case heard this year. In January, the justices considered the current lethal three-drug cocktail used in most U.S. executions.

A ruling is expected by late June on the challenge by two Kentucky death row inmates who argued the lethal injection method violated the constitutional ban on cruel and unusual punishment by inflicting needless pain and suffering.

Executions in the United States last year fell to a 13-year low of 42, and have been temporarily halted since the Supreme Court agreed in late September to decide the lethal injection case.

The Supreme Court's review of death penalty-related cases comes amid a growing nationwide debate on capital punishment itself in one of the few democracies that still permit it.

The case involved an appeal by Patrick Kennedy of Louisiana, who was convicted of raping his 8-year-old stepdaughter and sentenced to death.

Of the more than 3,300 inmates on death row in America, Kennedy and another man convicted of child rape in Louisiana are the only two who did not commit murder.

The last execution in the United States for rape occurred 44 years ago.



In 1977, the Supreme Court banned executions for rape in a case in which the victim was an adult woman but left open whether child rapists can be sentenced to death.

The Louisiana law was adopted in 1995. In its current version, rape can be punished by death when the victim was under 13 years of age.

At least four other states -- Montana, Oklahoma, South Carolina and Texas -- have similar laws.

Jeffrey Fisher, a Stanford University law professor representing Kennedy, argued that the U.S. Constitution bars imposing the death penalty for rape, regardless of the victim's age.

"Society views capital punishment as excessive punishment for child rape," Fisher said, citing a national consensus and international norms.

"Today no Western nation authorizes the death penalty for any kind of rape," Fisher said, adding that it is allowed in only a handful of countries, including China, Egypt, Jordan, Nigeria and Saudi Arabia.

Juliet Clark, an assistant district attorney in Louisiana, said the death penalty represented a constitutional punishment for raping a child.

"Public outrage over the sexual violation of immature young children by predatory adults is extremely great due to the recognition that these offenders target and harm the most vulnerable members of our society," she said.

She said 14 states and the federal government authorize the death penalty for various offenses other than murder, such as treason, espionage, kidnapping and aircraft hijacking.

Nine states, led by Texas, supported Louisiana, while the American Civil Liberties Union and the NAACP Legal Defense and Educational Fund supported Kennedy.

The two rights groups said a historical consensus existed against the death penalty for rape in the United States, except for Southern states willing in the past to execute blacks, especially those convicted of raping white women and children.

Paul Butler, a law professor at George Washington University, said moderate conservative Justice Anthony Kennedy may hold the decisive vote on the court closely divided between conservatives and liberals.

Kennedy wrote the court's majority opinion in 2005 that abolished the death penalty for juveniles and he joined the majority opinion in 2002 that barred executions of mentally retarded criminals.

(Editing by Alan Elsner)

    Court to consider death penalty for child rape, R, 13.4.2008, http://www.reuters.com/article/domesticNews/idUSN1128546220080413






Mexico protests U.S. ruling on death row case


Mon Mar 31, 2008
11:09pm EDT


MEXICO CITY (Reuters) - Mexico protested on Monday a U.S. Supreme Court ruling rejecting the reopening of a dual-murder case against a Mexican on death row.

The court rule last week that U.S. President George W. Bush exceeded his authority when he directed Texas to comply with a World Court ruling mandating the review of the cases of Jose Medellin and 50 other Mexicans in U.S. prisons awaiting execution.

Mexico's Foreign Ministry sent a diplomatic letter to the U.S. State Department expressing its unhappiness.

"Mexico is concerned with the decision taken last March 25 by the United States' highest court," the ministry said in a statement, adding it would do everything in its power to have the World Court's ruling upheld.

The Hague court in 2004 ordered the United States to review Medellin's case, and those of the other Mexican death row inmates, on the grounds that his Vienna Convention right to talk to consular officers after his arrest had been violated.

Bush in 2005 decided to comply with the World Court's ruling.

Medellin has been on death row since 1994.

(Reporting by Miguel Angel Gutierrez; editing by Mohammad Zargham)

    Mexico protests U.S. ruling on death row case, R, 31.3.2008, http://www.reuters.com/article/politicsNews/idUSN3131381820080401






Justices Rule Against Bush on Death Penalty Case


March 25, 2008
Filed at 11:53 a.m. ET
The New York Times


WASHINGTON (AP) -- The Supreme Court says Texas does not have to give a new hearing to a Mexican on death row for rape and murder, deciding a case that mixes presidential power, international relations and the death penalty.

The case pits the president against his home state of Texas. By a 6-3 vote, the court says President Bush does not have the authority to order a new hearing for the prisoner.

It put Bush in the unusual position of siding with death row prisoner Jose Ernesto Medellin (ho-SAY ehr-NES-to meh-duh-YEEN'), a Mexican citizen whom police prevented from consulting with Mexican diplomats, as provided by international treaty.

    Justices Rule Against Bush on Death Penalty Case, NYT, 25.3.2008, http://www.nytimes.com/aponline/us/AP-Scotus-Mexican-National.html?hp






Aversion to Death Penalty, but No Lack of Cases


March 10, 2008
The New York Times


They are an ignominious bunch: two Bronx heroin dealers who murdered an informant, a father and son who killed three people in a drug deal, a Brooklyn gangster hired in the killing of a husband for the victim’s wife.

These five men are linked not only by the nature of their crimes but by the fact that federal juries in New York decided that they should not be put to death.

In the 20 years since the federal death penalty statute was revived, no federal juries have been more reluctant to sentence federal defendants to death than those in New York. According to records compiled by the Federal Death Penalty Resource Counsel Project, which coordinates the defense of capital punishment cases, federal prosecutors in New York State have asked juries to impose death sentences 19 times since 1988. In only one case did a jury rule for execution.

Nationwide, federal prosecutors win death penalties about one-third of the time, according to the group’s statistics.

But despite this track record, the cases have not stopped coming: In Brooklyn alone, there are six more capital cases on the docket this year, including those of a reputed Mafioso and of two men charged with killing Guyanese immigrants to collect their life insurance policies. The first of these trials — of Gilberto Caraballo, a Brooklyn drug dealer convicted last month of murdering two rivals — will enter its so-called penalty phase on Monday.

Federal judges in New York have gone so far as to call some death penalty cases a waste of time and money. Last week, Judge Jack B. Weinstein of Federal District Court in Brooklyn told prosecutors that their chances of obtaining a death sentence against a drug dealer charged with dismembering two rivals were “virtually nil” and issued an order in which he said he was waiting for the Justice Department to reconsider whether to pursue an execution.

Officials in the federal prosecutors’ offices in Brooklyn and Manhattan, as well as the Department of Justice in Washington, declined to comment on their record in death penalty cases.

Lawyers and other experts in the field say that a variety of reasons underpin New York’s status as a tough sell in death penalty cases. They say that there is a fundamental liberal slant to juries in the state, and that New York has some of the best death penalty defense lawyers in the country.

They also say many victims in New York capital cases are unsavory characters: drug dealers, mobsters or members of street gangs — not the sort of people whose killers are likely to be punished with death.

“New York has the worst batting average in the country,” said Kevin McNally, a defense lawyer in Kentucky and the director of the Federal Death Penalty Resource Counsel Project. Federal juries in Connecticut and New Jersey have never ruled for death since 1988, but only three cases have gone before juries in those two states.

Mr. McNally said that statistics in federal death penalty cases tended to mirror those in state cases, and that in places like Virginia, Mississippi and Texas, where the state death penalty is active, there were also more death sentences imposed in the federal courts. (New York’s death penalty statute was effectively invalidated in 2004 by the state’s highest court.)

Ephraim Savitt, a defense lawyer in New York who has handled several capital cases, said that New York jurors “fancy themselves as liberal,” adding “Ultimately we have a very cosmopolitan, eclectic, heterogeneous population, and the death penalty requires unanimity.” In federal courts, as in some states, all 12 members of the jury must approve the death penalty.

Mr. Savitt was the lead lawyer for Ronell Wilson, a Staten Island gang member sentenced to die last year in the only imposition of the federal death penalty in New York since 1954, when Gerhard Puff, a bank robber, was executed for killing an F.B.I. agent. The victims in the Wilson case, two undercover police detectives, were crucial in the jury’s decision, both Mr. Savitt and Mr. McNally said. Crucial and unusual, they added, in that the detectives were perceived as “innocent” and “good.”

“Not many New York cases have ‘innocent victims,’ ” Mr. McNally said. He added that white female victims, for example, were “death in a bottle for defense lawyers.”

Mr. Wilson’s case is on appeal. Only three people have been executed under the revived federal death penalty: Timothy McVeigh, the Oklahoma City bomber, in 2001; Juan Raul Garza, a drug dealer who killed three other drug traffickers in Texas, in 2001; and Louis Jones Jr., who kidnapped, raped and killed a 19-year-old female soldier in Texas in 2003.

The question of whether to pursue the death penalty in a federal case typically begins with a special committee within the United States attorney’s office in each federal district (New York has four; Connecticut and New Jersey, one each). The committee makes a recommendation to the Department of Justice in Washington, where the attorney general must sign off on the case.

In the past, particularly during John Ashcroft’s tenure as attorney general, the United States attorney’s offices in Brooklyn and Manhattan had trouble with Washington. In 2003, for instance, Mr. Ashcroft ordered both offices to pursue the death penalty in 10 cases in which local prosecutors had recommended against it.

While officials in both offices declined to comment on their current death penalty cases, the prior troubles could be read as an indication of ambivalence about the death penalty.

In the Manhattan federal court, the most striking example is a 2002 decision by Judge Jed S. Rakoff, who ruled that the federal death penalty was unconstitutional. Writing in the case of the two heroin dealers who killed an informant, Judge Rakoff cited the growing number of exonerations of death row inmates and ruled that the death penalty was “tantamount to foreseeable, state-sponsored murder of innocent human beings.” The decision was eventually overturned on appeal.

There have been even more instances of judicial displeasure in Brooklyn’s federal system, where it might be said that a quiet bench revolt against the death penalty is taking place.

In Judge Weinstein’s order last week, he noted that the defendant, Humberto Pepin Taveras, had agreed to plead guilty in order to obtain a lesser sentence and pointed out that the costs of the case had already reached $1.5 million and were likely to increase.

Other Brooklyn judges in recent years have spoken out against the death penalty from the bench and in print. Last March, Judge Frederic Block wrote an Op-Ed piece for The New York Times in which he questioned the “enormous costs and burdens to the judicial system” caused by the death penalty. In 2003, his colleague Judge John Gleeson wrote an article for The Virginia Law Review in which he called Mr. Ashcroft’s decision to force prosecutors to seek the death penalty against their own recommendations “a bad idea.”

Another Brooklyn jurist, Judge Nicholas G. Garaufis, has by his own count twice asked the Justice Department to reconsider the death penalty in cases he has overseen. The concerns raised about the death penalty by judges presiding over such cases was reported in The New York Sun.

In an interview last week, Judge Garaufis said that he was not aware of any coordinated effort by Brooklyn judges to oppose the death penalty, though he also said he was not aware of any other federal bench across the country that seemed to question the practice so openly and often.

“There are judges — and I’m not speaking for them — who clearly look upon the death penalty as so unlikely to be ordered by a jury that it’s not worthwhile to pursue it,” he said. “Especially because the alternative is life in prison without the possibility of release.”

    Aversion to Death Penalty, but No Lack of Cases, NYT, 10.3.2008, http://www.nytimes.com/2008/03/10/nyregion/10penalty.html






Prosecutor Seeks Death for Ex - Cop


February 26, 2008
Filed at 10:15 a.m. ET
The New York Times


CANTON, Ohio (AP) -- A former police officer should face execution for killing his pregnant lover and their unborn daughter, a prosecutor told jurors on Tuesday.

''Bobby Cutts deserves the maximum sentence allowed by law in the state of Ohio. That's the sentence of death,'' assistant Stark County Prosecutor Dennis Barr told jurors who convicted Cutts earlier this month and must recommend a sentence.

Barr said the state had met its burden to prove that Cutts deserves to die for his crimes.

Two appearances by Cutts on the witness stand were the emotional highlights of his trial in the death of Jessie Davis, 26, and the nearly full-term fetus.

Two weeks ago, Cutts sobbed on the witness stand as he testified that he had accidentally killed Davis with an elbow blow to the throat during a disagreement at her northeast Ohio home and dumped her body at a park in a panic.

Defense attorney Fernando Mack said execution would be inappropriate because it should be reserved for the ''worst of the worst,'' including serial killers.

''This is a situation that got out of hand,'' said Mack, who argued that execution would leave the couple's 2 1/2-year-old son, Blake, an orphan.

''This penalty is to be used sparingly,'' Mack said.

The jury was scheduled to begin deliberating a sentence recommendation after hearing the judge's instructions on the law.

Cutts, 30, was convicted of aggravated murder in the death of the fetus. He could receive the death penalty, life in prison without parole or life with parole eligibility after 20, 25 or 30 years.

If the jury recommends death, the judge can reduce the sentence to life, something that has happened just seven times in Ohio in 27 years.

Jurors found Cutts not guilty of aggravated murder in the death of Davis but convicted him of a lesser charge of murder in her death.

Cutts took the stand Monday to plead with jurors who convicted him. Sniffling and his voice wavering at times, he accepted responsibility for his crimes.

''Ladies and gentlemen of the jury, I'm asking you to spare my life,'' Cutts said in an unsworn statement, which exempted him from cross-examination by prosecutors.

Apologizing to the teary-eyed members of Davis' family sitting in the front row, Cutts said he could not express in words how he felt knowing that he had killed her and the baby.

Prosecutors told the jury that Cutts killed Davis and the unborn baby last June to avoid making child support payments for the child.

Blake, who was found home alone, gave investigators their first clues to his mother's disappearance when he said, ''Mommy's crying. Mommy broke the table. Mommy's in the rug,'' and later, ''Daddy's mad.''

For more than a week, Cutts denied knowledge of her whereabouts as thousands searched in the area. He finally led authorities to the body, wrapped in a comforter.

Cutts, who also was convicted of abuse of a corpse, burglary and child endangering for leaving Blake Davis alone, resigned as a patrolman from the Canton police department.

    Prosecutor Seeks Death for Ex - Cop, NYT, 26.2.2008, http://www.nytimes.com/aponline/us/AP-Pregnant-Woman-Dead.html






U.S. Seeking Execution for 6 in Sept. 11 Case


February 11, 2008
The New York Times


Military prosecutors have decided to seek the death penalty for six Guantánamo detainees who are to be charged with central roles in the Sept. 11 terror attacks, government officials who have been briefed on the charges said Sunday.

The officials said the charges would be announced at the Pentagon as soon as Monday and were likely to include numerous war-crimes charges against the six men, including Khalid Shaikh Mohammed, the former Qaeda operations chief who has described himself as the mastermind of the attacks, which killed nearly 3,000 people.

A Defense Department official said prosecutors were seeking the death penalty because “if any case warrants it, it would be for individuals who were parties to a crime of that scale.” The officials spoke anonymously because no one in the government was authorized to speak about the case.

A decision to seek the death penalty would increase the international focus on the case and present new challenges to the troubled military commission system that has yet to begin a single trial.

“The system hasn’t been able to handle the less-complicated cases it has been presented with to date,” said David Glazier, a former Navy officer who is a professor at Loyola Law School in Los Angeles.

In addition to Mr. Mohammed, the other five to be charged include detainees officials say were coordinators and intermediaries in the plot, among them a man labeled the “20th hijacker,” who was denied entry to the United States in the month before the attacks.

Under the rules of the Guantánamo war-crimes system, the military prosecutors can designate charges as capital when they present them, and it is that first phase of the process that is expected this week. The military official who then reviews them, Susan J. Crawford, a former military appeals court judge, has the authority to accept or reject a death-penalty request.

A Pentagon spokesman declined to comment on Sunday.

Some officials briefed on the case have said the prosecutors view their task in seeking convictions for the Sept. 11 attacks as a historic challenge. A special group of military and Justice Department lawyers has been working on the case for several years.

Even if the detainees are convicted on capital charges, any execution would be many months or, perhaps years, from being carried out, lawyers said, in part because a death sentence would have to be scrutinized by civilian appeals courts.

Federal officials have said in recent months that there is no death chamber at the detention camp at the United States naval base at Guantánamo Bay, Cuba, and that they knew of no specific plans for how a death sentence would be carried out.

The military justice system, which does not govern the Guantánamo cases, provides for execution by lethal injection in death sentence convictions. But the United States military has rarely executed a prisoner in recent times.

The last military execution was in 1961, when an Army private, John A. Bennett, was hanged after being convicted of rape and attempted murder. Currently, there are six service members appealing military death sentences, according to a recently published article by a lawyer who specializes in military capital cases, Dwight H. Sullivan, a former chief military defense lawyer at Guántanamo.

One official who had been briefed on the war-crimes case said the charges were expected to be lodged against six detainees held at Guantánamo, including Mr. Mohammed, who is said to have presented the idea of an airliner attack on the United States to Osama bin Laden in 1999 and then coordinated its planning.

The official identified the others to be charged as Mohammed al-Qahtani, the man officials have labeled the 20th hijacker; Ramzi bin al-Shibh, said to have been the main intermediary between the hijackers and leaders of Al Qaeda; Ali Abd al-Aziz Ali, known as Ammar al-Baluchi, a nephew of Mr. Mohammed, who has been identified as Mr. Mohammed’s lieutenant for the 2001 operation; Mr. al-Baluchi’s assistant, Mustafa Ahmed al-Hawsawi; and Walid bin Attash, a detainee known as Khallad, who investigators say selected and trained some of the hijackers.

Relatives of the Sept. 11 victims have expressed differing views of potential death sentences, with some arguing that it would accomplish little other than martyring men for whom martyrdom may be viewed as a reward.

But on Sunday, Debra Burlingame, whose brother Charles F. Burlingame III was the pilot of the hijacked American Airlines Flight 77 that was crashed into the Pentagon, said she would approve of an effort by prosecutors to seek the execution of men she blames for killing her brother. Ms. Burlingame said such a case could help refocus the public’s attention on what she called the calculated brutality of the attacks, which she said has been largely forgotten.

“My opinion is,” she said, “if the death of 3,000 people isn’t sufficient for a death penalty in this country, then why do we even have the death penalty?”

Lawyers said a prosecution move to seek the death penalty in six cases that will draw worldwide attention was risky. They said it would increase the stakes at Guantánamo partly by amplifying the attention internationally to cases that would draw intense attention in any event.

The military commission system has been troubled almost from the start, when it was set up in an order by President Bush in November 2001. It has been beset by legal challenges and practical difficulties, including a 2006 decision by the Supreme Court striking down the administration’s first system at Guantánamo. Although officials have spoken of charging 80 or more detainees with war crimes, so far only one case has been completed, and that was through a plea bargain.

Eric M. Freedman, a Hofstra University law professor who has been a consultant to detainees’ lawyers, said a decision to seek the death penalty would magnify the attention on each of the many steps in a capital case. Intense scrutiny, he said, “would be drawn to the proceedings both legally and politically from around the world.”

Some countries have been critical of the United States’ use of the death penalty in civilian cases, and a request for execution in the military commission system would import much of that criticism to the already heated debates about the legitimacy of Guantánamo and the Bush administration’s legal approach there, some lawyers said.

Tom Fleener, an Army Reserve major who was until recently a military defense lawyer at Guantánamo, said that bringing death penalty cases in the military commission system would bog down the untested system. He noted that many legal questions remain unanswered at Guantánamo, including how much of the trials will be conducted in closed, secret proceedings; how the military judges will handle evidence obtained by interrogators’ coercive tactics; and whether the judges will require experienced death-penalty lawyers to take part in such cases.

“Neither the system is ready, nor are the defense attorneys ready to do a death penalty case in Guantánamo Bay, Cuba,” Major Fleener said.

Professor Glazier of Loyola said the military commission system was devised to avoid many of the hurdles that have slowed civilian capital cases. Still, he said, he expected intense scrutiny and criticism of such cases that could slow proceedings.

In any event, vigorous trial battles and appeals would probably mean that no execution would be imminent. “It certainly seems impossible to get this done by the end of the Bush administration,” Professor Glazier said.

    U.S. Seeking Execution for 6 in Sept. 11 Case, NYT, 11.2.2008, http://www.nytimes.com/2008/02/11/us/11gitmo.html?hp






Court Rules Nebraska Electric Chair Not Legal


February 8, 2008
Filed at 12:26 p.m. ET
The New York Times


LINCOLN, Neb. (AP) -- The Nebraska Supreme Court ruled Friday that electrocution is cruel and unusual punishment, outlawing the electric chair in the only state that still used it as its sole means of execution.

In the landmark ruling, the court said the state Legislature may vote to have a death penalty, just not one that offends rights under the state constitution. The evidence shows that electrocution inflicts ''intense pain and agonizing suffering,'' it said.

''Condemned prisoners must not be tortured to death, regardless of their crimes,'' Judge William Connolly wrote in the 6-1 opinion.

''Contrary to the State's argument, there is abundant evidence that prisoners sometimes will retain enough brain functioning to consciously suffer the torture high voltage electric current inflicts on a human body,'' Connolly wrote.

In his dissent, Chief Justice Mike Heavican said he did not think electrocution was cruel and unusual.

The high court made the ruling in the case of Raymond Mata Jr., convicted for the 1999 killing and dismemberment of 3-year-old Adam Gomez of Scottsbluff, the son of his former girlfriend.

Investigators testified that parts of the toddler's body were found at Mata's home in a freezer, a dog bowl and dog-food bag. Human bone fragments also were recovered from the stomach of Mata's dog.

The court stressed that its ruling Friday did not strike down the death penalty -- just electrocution as the method. In fact, Mata's death sentence was affirmed by the high court.

That could leave lawmakers scrambling to approve another means of execution during this legislative session.

Attorney General Jon Bruning was not immediately available to comment about the state's next legal move.

Nebraska Solicitor General J. Kirk Brown had argued for the state that the legal standard a method of execution must meet is to minimize the risk of unnecessary pain, violence and mutilation, not eliminate it. He said electrocution meets that test.

But the high court said electrocution ''has proven itself to be a dinosaur more befitting the laboratory of Baron Frankenstein'' than a state prison.

The use of the electric chair began to decline when Oklahoma adopted lethal injection in 1977, said Richard Dieter, executive director of the Death Penalty Information Center. As more states followed suit, it became more difficult to justify the electric chair, he said.

While Nebraska is the only state with electrocution as its sole method of execution, it is still an option or a backup method in nine other states: Alabama, Arkansas, Florida, Illinois, Kentucky, Oklahoma, South Carolina, Tennessee and Virginia.

All normally use lethal injection but have electrocution as an option if an inmate chooses it or in case state courts rule lethal injection unconstitutional, Dieter said.


Associated Press Writer Oskar Garcia in Omaha, Neb., contributed to this report


On the Net:

Read the opinion:


Death Penalty Information Center: http://www.deathpenaltyinfo.org/

    Court Rules Nebraska Electric Chair Not Legal, NYT, 8.2.2008, http://www.nytimes.com/aponline/us/AP-Nebraska-Death-Penalty.html






I wanted to kill myself, says death row Scot


Sunday January 13, 2008
Denis Campbell


Kenny Richey, the Scot who spent 21 years on death row before being freed last week, became so depressed behind bars that he contemplated committing suicide.

The Edinburgh-born man makes the admission today in the first interviews he has given since being released last week after spending half his life in custody in America.

The 43-year-old is now back in his home city trying to rebuild his life after being convicted in 1987 of starting a fire which killed a three-year-old girl, a crime he always denied. On one occasion during his confinement in two prisons in Ohio, he came within an hour of being sent to the electric chair.

'There were several times when I thought of taking my own life and I came close to doing it on one occasion,' he said. 'I sat on my bed with a razor blade thinking I could end it all there and then. But it was the thought of what my suicide would do to my family that always stopped me. There was also the fact that I would be letting myself down.

'I was innocent and although it was tough, there were people outside who supported me and believed in me because I was innocent.'

Richey's death sentence was overturned last August at the Cincinnati Court of Appeal and he was moved from the tough Mansfield Correctional Facility in Ohio to a low-security prison. Last week he pleaded guilty to charges of attempted involuntary manslaughter, child endangering and breaking and entering as part of a plea bargain.

Richey moved to America when he was 18. He was discharged from the marines, drifted, drank and took prescription drugs in large quantities, and became a thief.

The self-confessed 'bad boy' was convicted of starting a blaze at a block of flats which killed Cynthia Collins, the daughter of a friend, Hope Collins. Speaking to today's Mail on Sunday, Richey insists he had no involvement in the fire, and evidence emerged during his incarceration that the toddler had previously started fires on her own.

'I loved that little girl and I would have done anything to save her. I would have given my life to save hers at any time,' he said. 'I am no child killer and could never intentionally harm a child. It has been a very bitter experience finding myself in a situation where I was going to lose my life because I had been held responsible for the loss of hers.

'Every New Year's Eve for the past 21 years I've told myself this was the year I'd [get out]. Now I've finally done it.'

He told The People newspaper: 'I'm devastated she died, but it wasn't my fault. Nothing can bring back that little girl, but I've been rotting in my own hell for 21 years.'

    I wanted to kill myself, says death row Scot, O, 13.1.2008, http://www.guardian.co.uk/usa/story/0,,2240209,00.html






Freed From Death Row, Richey to Go Home


January 8, 2008
Filed at 8:35 a.m. ET
The New York Times


OTTAWA, Ohio (AP) -- No longer behind bars, a British citizen who spent 20 years on Ohio's death row was set to complete his long journey home Tuesday.

Ken Richey, 43, who once came within an hour of being executed, was scheduled to return to Scotland on an evening flight in accordance with a plea deal. He walked free Monday for the first time since 1986, when he was accused of setting a northwest Ohio apartment fire that killed a toddler.

''It's great to finally be free at long last, and I'm looking forward to going home to Scotland,'' Richey said. ''It's been a long time coming.''

Before taking off, he was spending the day with his brother in Ohio.

Prosecutors told Richey they were worried about threats against him, his family and attorney said. In Scotland, he plans to stay in Edinburgh with his mother, who he hasn't seen in more than two decades.

Richey pleaded no contest to attempted involuntary manslaughter, child endangering and breaking and entering in a plea deal that allowed him to be sentenced to the 21 years he has already served. Under the terms of the deal, Richey made no admission that he had anything to do with causing the fire that killed 2-year-old Cynthia Collins.

Prosecutors approved the deal after a federal appeals court determined Richey's lawyers mishandled the case. The court overturned Richey's conviction and death sentence last year.

Prosecutor Gary Lammers said the passage of time and the appeals court decision would have made it difficult to prove arson.

''We think it's an appropriate resolution,'' he said. ''The fact that he served 21-and-a-half years in prison, I don't think necessarily makes him a victim. If anything, it holds him accountable -- if nothing else -- for some of the things that he's responsible for through this entire sordid case.''

Members of the Collins family glared at Richey during Monday's court session.

Robert Collins, the father of the toddler who died, wishes his daughter ''could appeal her death and come back to life,'' according to a statement read by victim advocate Shelly Price.

''The situation surrounding the death of my little girl has haunted me for 21 years,'' Collins' said in his statement. ''The unthinkable reality of her choking, crawling, crying, and her little lungs filling with smoke has been etched in my mind since her death. It's an ongoing nightmare.

''I will never have closure now that the outcome has changed.''

Valerie Binkley, Cynthia's aunt, told the judge she had prepared a six-page statement, but was too emotional to read it. She then turned to Richey and angrily pointed at him.

''I want you to know you fooled nobody -- not me, not that baby, not any of these people,'' she said. ''You will fry in hell.''

Richey had been convicted of charges accusing him of setting a fire at the Columbus Grove apartment complex in June 1986 to get even with his former girlfriend, who lived in the same building as the child who died.

Richey's new defense team argued that investigators mishandled evidence used to convict him and that experts used unscientific methods to determine that gas or turpentine started the fire.

Richey had turned down every plea deal linking him to the fire. He agreed to plead no contest to charges accusing him of leaving the toddler in harm's way by failing to baby-sit the child after telling her mother that he would.

He came close to being executed in Ohio's electric chair in 1994. He had said his goodbyes and his head was shaved before a late stay came from an appeals court.

Richey's name is a familiar one in Britain, where there is no death penalty. He has drawn support from members of the British Parliament and the late Pope John Paul II.


Associated Press Writer James Hannah contributed to this report.

    Freed From Death Row, Richey to Go Home, NYT, 8.1.2008, http://www.nytimes.com/aponline/us/AP-Death-Penalty-Overturned.html






Supreme Court

takes up major death penalty case


Mon Jan 7, 2008
9:42am EST
By James Vicini


WASHINGTON (Reuters) - The Supreme Court will hear arguments on Monday in a death penalty case being watched around the world, to decide whether the lethal injections used to execute criminals cause unacceptable pain.

The hearing on whether the three-chemical cocktail used to end the lives of death row inmates violates the constitutional ban on cruel and unusual punishment marks the first time the court has considered a specific means of execution since it upheld the use of firing squads in 1879.

Although the session will focus on that narrow issue, it has prompted a nationwide debate on capital punishment itself in one of the few democracies that still permit it.

Executions across the United States have come to a temporary halt since the court agreed in late September to decide the case, falling last year to a 13-year low of 42.

Last month, New Jersey became the first state to abolish the death penalty since the Supreme Court reinstated it in 1976, reducing the number of states with capital punishment on their books to 36.

Attorneys for two Kentucky death row inmates argued in their appeal to the Supreme Court that the current lethal injection method can cause excruciating and needless pain.

They said the evolution of execution methods in the United States, from hanging in the 19th century to electrocution and then lethal gas, reflected a continuing quest to find a more humane way of killing, but that each new method turned out to be less humane than intended.

But Kentucky and the Bush administration argued that the current procedures are intended to cause death in a painless, quick manner.

The court's ruling, expected by the end of June, could decide if the current lethal drug combination is constitutional or whether states have to come up with alternatives that pose less risk of pain and suffering.

Support for the death penalty remains strong in the United States at around 60-65 percent of the public, but has fallen significantly in recent years as DNA tests have helped exonerate 15 people convicted to die, according to the Death Penalty Information Center, an anti-capital punishment group.

(Reporting by James Vicini, editing by Alan Elsner and David Alexander)

    Supreme Court takes up major death penalty case, R, 7.1.2008, http://www.reuters.com/article/domesticNews/idUSN0432251620080107







Top court case on execution

by lethal injection


Sun Jan 6, 2008
9:15am EST


(Reuters) - The U.S. Supreme Court hears arguments on Monday in a major case on whether the common lethal injection method of execution for death row inmates violates the constitutional ban on cruel and unusual punishment.

Following are some facts about the case.

* The federal government and all but one of the U.S. states with the death penalty use lethal injection for executions. The only exception is Nebraska, which uses the electric chair.

* Executions in the United States last year at 42 fell to the lowest level in 13 years, mainly as a result of the unofficial moratorium after the Supreme Court decided in late September to rule on the lethal injection case.

* Since 1976, when the Supreme Court reinstated the death penalty, there have been 929 executions by lethal injection, 154 by electrocution, 11 by the gas chamber, three by hanging and two by firing squad. according to the Death Penalty Information Center, which opposes capital punishment.

* Kentucky, the state involved in the case, adopted lethal injection as an execution method in 1998. It has used the method only once -- in 1999.

* The lethal three-chemical cocktail given to death row inmates consists of sodium thiopental, which causes unconsciousness, pancuronium bromide, which results in paralysis, and potassium chloride, which stops the heart.

* The American Civil Liberties Union, Human Rights Watch and other opponents of capital punishment supported the challenge by two death row inmates to the lethal injection method while the Bush administration, a number of states and a group called the Criminal Justice Legal Foundation supported Kentucky.

* The case is the latest of a series dealing with capital punishment that the court has considered in recent years. In 2005, it abolished the death penalty for juveniles, and in 2002 it barred executions of mentally retarded criminals.

(Writing by James Vicini, editing by David Alexander)

    FACTBOX: Top court case on execution by lethal injection, R, 6.1.2008, http://www.reuters.com/article/domesticNews/idUSN0648471820080106






Justices to Decide

if Rape of a Child Merits Death


January 5, 2008
The New York Times


WASHINGTON — The Supreme Court agreed on Friday to decide whether the Constitution allows the death penalty for the rape of a child.

The justices acted only three days before a scheduled argument in another important death penalty case, on the standard for judging whether chemicals used to administer lethal injections make that method of execution unconstitutionally cruel.

The new case, from Louisiana, is likely to be argued in April, meaning that during the course of its current term, the Supreme Court will be examining both the most common method of execution and a categorical question about which crimes are appropriate for the death penalty.

No one has been executed in the United States for a crime other than murder since 1964. Of some 3,300 inmates of death row today, only two are facing execution for an offense that did not involve a killing. Both are on Louisiana’s death row. The Supreme Court agreed to hear an appeal from one of them, Patrick Kennedy, who was convicted and sentenced to death in 2004 for raping his 8-year-old stepdaughter.

In 1977, as part of its wide-ranging re-examination of capital punishment, the Supreme Court prohibited the death penalty for rape. While that ruling, Coker v. Georgia, did not specifically discuss the rape of a child — the victim, although only 16, was a married woman who was raped at knifepoint — the decision has been widely understood as limiting the death penalty to the crime of murder.

In the principal opinion in the Coker case, Justice Byron R. White wrote that “we have the abiding conviction that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life.”

But in recent years, a handful of states, responding to public outcries about sex crimes against children, have amended their death penalty statutes to make the rape of a child a capital offense. Louisiana was the first to do so, amending its death-penalty law in 1995 to apply to the rape of a child under the age of 12. The other states with similar provisions are Georgia, Montana, Oklahoma, South Carolina and Texas. Unlike Louisiana, most limit the death penalty to defendants who were previously convicted of sexual assault against a child.

The Louisiana Supreme Court rejected Mr. Kennedy’s appeal last year in a 64-page opinion that concluded that “rape of a child under the age of 12 years of age is like no other crime” and that death was not a disproportionate punishment. Taking note of the recent state laws, the court said there was “compelling” evidence of a national trend toward treating the crime as distinct from others.

The United States Supreme Court’s recent death penalty jurisprudence has paid close attention to evidence of whether contemporary society has reached a consensus on particular applications of capital punishment. The court relied on such an analysis to rule out the death penalty for mentally retarded defendants in 2002 and for juvenile killers in 2005. Louisiana is now invoking the same approach to argue that an application of the death penalty once widely deemed unconstitutional has become permissible.

Mr. Kennedy’s lawyers are arguing that any such “trend” is illusory. “By any objective measure,” their brief says, Mr. Kennedy’s sentence “is not only cruel and unusual; it is cruel and unique.”

The other inmate is Richard Davis, who was sentenced to death on Dec. 12 for sexually molesting a 5-year-old girl.

The appeal, Kennedy v. Louisiana, No. 07-343, was filed by lawyers from the Capital Appeals Project, in New Orleans; the Stanford Law School Supreme Court Litigation Clinic; and a New Orleans law firm, Adams and Reese.

Among other briefs filed at the court on Mr. Kennedy’s behalf was one from the National Association of Criminal Defense Lawyers, arguing that the Louisiana law presents “an intolerably high risk” that innocent defendants will be put to death. The reason, the group asserts, is that testimony by children, who are usually the principal witnesses in child rape cases, is often unreliable.

Another brief, from social workers and organizations working with sexual assault victims, describes the Louisiana law, with its broad definition of rape and its drastic penalty, as counterproductive and likely to lead to under reporting of offenses, especially within families.

    Justices to Decide if Rape of a Child Merits Death, NYT, 5.1.2008, http://www.nytimes.com/2008/01/05/washington/05scotus.html






States Hesitate

to Lead Change on Executions


January 3, 2008
The New York Times


When a state panel recommended last April that Tennessee abandon the three chemicals used in executions across the nation in favor of the single drug usually used in animal euthanasia, the state’s corrections commissioner said no.

Though the move would have simplified executions and eliminated the possibility of excruciating pain, the commissioner, George Little, said Tennessee should not be “out at the forefront” of a decision with “political ramifications,” according to recently disclosed evidence in a death row inmate’s lawsuit.

Mr. Little’s decision helps illuminate one of the questions lurking behind the year’s most eagerly anticipated death penalty case: Why have states so doggedly and uniformly clung to an execution method with the potential to inflict intense pain when a simpler one is readily available?

When the Supreme Court hears arguments on Monday in Baze v. Rees, the Kentucky case that has led to a de facto national moratorium on executions, it will mostly be concerned with the question of what standard courts must use to assess the constitutionality of execution methods under the Eighth Amendment, which bars cruel and unusual punishment.

But beyond that is the more practical question of why all 36 states that use lethal injections to execute condemned inmates are wedded to a cumbersome combination of three chemicals.

The answer, experts say, seems to be that no state wants to make the first move. Having proceeded in lock step to adopt the current method, which was chosen in part because it differed from the one used on animals and masked the involuntary movements associated with death, state governments would prefer that someone else, possibly the courts, change the formula first.

“The departments of correction are dug in,” said Deborah W. Denno, an authority on methods of execution at the Fordham University Law School. “There’s safety in numbers. But if one state breaks from that, the safety in numbers starts to crumble.”

“If you change,” Professor Denno continued, “you’re admitting there was something wrong with the prior method. All those people you were executing, you could have been doing it in a better, more humane way.”

In the Baze case, lawyers for John D. Rees, the Kentucky corrections commissioner, said the three-chemical combination was safe and painless and produced a dignified death. Using only a single barbiturate, they said, was untested, could result in distressing and disruptive muscle contractions, and might take a long time. The method is the one most commonly used for pets, sometimes in combination with a sedative.

Lawyers for the Kentucky inmates, Ralph Baze and Thomas C. Bowling, said a barbiturate would bring on fatal cardiac arrest “within a matter of minutes.” They conceded that muscle contractions were possible, but said that inmates were strapped down and that witnesses could be told that the movements did not indicate pain. And they said the three-chemical combination, which is not used in veterinary euthanasia, was itself once untested.

Mr. Baze is on death row for killing a sheriff and a deputy sheriff who were trying to serve him with a warrant. Mr. Bowling is there for killing a couple whose car he had damaged in a parking lot.

Lethal injection protocols nationwide were copied from one developed in Oklahoma in 1977 — the year after the Supreme Court reinstituted the death penalty — based on advice from a medical school professor to a state senator. They call for a short-acting barbiturate to render the inmate unconscious, followed by a paralytic and then a chemical to stop the heart.

If the first chemical works, there is no dispute that the process is quick and painless. If it does not, there is no dispute that the inmate will suffer intense and terrifying pain. But because the inmate is paralyzed, it may not be possible to tell whether the first drug worked.

When Texas was considering whether to adopt the Oklahoma protocol in the late 1970s, the medical director of Texas’ corrections department, Dr. Ralph Gray, consulted a veterinarian in Huntsville, Tex., Dr. Gerry Etheredge.

“I told him,” Dr. Etheredge recalled Wednesday, “that in veterinary medicine when we euthanized an animal most of us used pentobarbital, a general anesthetic, which is very potent and long-lasting, and we overdosed it and everything went smoothly. It was very safe, very effective and very cheap.”

Dr. Gray, who has since died, had only one objection, Dr. Etheredge recalled. “He said it was a great idea except that people would think we are treating people the same way that we’re treating animals. He was afraid of a hue and cry.”

Texas adopted Oklahoma’s three-chemical combination and started using it to execute inmates in 1982.

These days, opponents of that protocol make the opposite argument of the one Dr. Gray feared. They say that death row inmates deserve to be treated at least as well as animals.

Two other states have considered revising the three-chemical combination.

In March, a Florida commission appointed to study lethal injections endorsed the three-chemical combination. But it indicated uneasiness about the second drug in the combination, pancuronium bromide, a paralytic that, used alone, would leave the inmate conscious but suffocating and unable to cry out.

The Florida commission urged the state to explore “more recently developed chemicals” to substitute for the paralytic drug that might “make the lethal injection execution procedure less problematic.”

In May, a California commission issued a report saying it had considered recommending a single drug, which has “the advantages of being simpler to administer and virtually eliminates the potential for pain.” But the commission rejected it because a single-chemical protocol s untested, may result in involuntary muscle movements and might take a long time.

The Tennessee committee saw it differently.

“The primary advantage of the one-drug protocol,” according to its draft report in April, “is that it is much simpler to administer.” It also “has the advantage of eliminating both of the drugs which, if injected into a conscious person, would cause pain,” the report added. “All of the medical experts consulted by the state were very supportive of the one-drug protocol,” it said.

Indeed, Judge Aleta A. Trauger of Federal District Court in Nashville said in a decision in September, “No medical testimony supports the proposition that the one-drug protocol causes any suffering or that it prolongs the pronouncement of death.”

In that decision, Judge Trauger barred the execution of Edward J. Harbison, who is on death row for beating a woman to death in a burglary in 1983. Judge Trauger found that the corrections commissioner was “deliberately indifferent to the plaintiff’s excessive risk of pain” because he rejected the use of a single drug.

That decision is on appeal.

Judge Trauger appeared unimpressed with the testimony of Mr. Little, the corrections commissioner. She said Mr. Little had “at first denied that the protocol committee recommended to him the one-drug protocol” but ultimately admitted that it had.

At a hearing in September, Judge Trauger questioned Mr. Little directly about his statement that political considerations had played a role in his decision to retain the three-chemical combination.

“Did you mean that the governor might look soft on execution or soft on convicted murderers if he went to a one-drug-protocol?” Judge Trauger asked. “He might be pandering to the anti-death-penalty people?”

Mr. Little said no, but he did not elaborate. He did say, according to the notes of Steve Elkins, the governor’s lawyer, that the one-chemical protocol could be a fallback if the courts struck down the three-chemical combination. “Vice versa, no fallback,” the notes said.

A spokeswoman for Mr. Little said he had no comment beyond what he had said in court. A spokeswoman for the attorney general declined to comment, citing the pending litigation.

Some experts on executions say the debate over which chemicals to use is the wrong one. States have adopted a process that appears humane because it looks like medical treatment, Professor Denno said. But looks can be deceiving, she added.

“To me,” Professor Denno said, “the firing squad is the most humane and perceived to be the most brutal.”

    States Hesitate to Lead Change on Executions, NYT, 3.1.2008, http://www.nytimes.com/2008/01/03/us/03lethal.html



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