Texas still waiting to kill

Though the headlines shouted that the US Supreme Court approved lethal injection by a 7-2 margin, allowing executions to resume, when and how they will do so still must be decided on a state by state basis. Doc Berman points to a helpful column by Michael Dorf at Findlaw, declaring in part:

Last week, in Baze v. Rees, the U.S. Supreme Court rejected a constitutional challenge to Kentucky's administration of the death penalty via lethal injection. To say that the case divided the Justices would be a gross understatement. There was no opinion for the Court as a whole, and the nine Justices wrote a total of seven separate opinions.

In the short term, the Baze decision will result in the resumption of executions, which had been subject to a de facto moratorium since the Court agreed to hear the case. In the long term, the decision's likely impact is unclear.

The controlling opinion of Chief Justice Roberts finds insufficient evidence in the record to support a conclusion that Kentucky's administration of its three-drug lethal injection poses a "substantial risk of serious harm," and thus to warrant the Court's ruling that it constitutes cruel and unusual punishment in violation of the Eighth Amendment. However, the Chief Justice's opinion leaves open the possibility that such evidence might be found in a different case from a different state. For the next few years, therefore, we are likely to see challenges to the application of lethal injection in various states, and eventually the issue may return to the Supreme Court.

In Texas, the decision when the first execution will occur theoretically is in the hands of local judges, but as a practical matter everyone's waiting on the case of Heliberto Chi, an Arlington man convicted in the 2001 shooting death of a clothing store manager Until Chi's case is decided, reports John Moritz a\t the Fort Worth Star Telegram ("High court okays executions; Texas court hasn't," April 22), executions are unlikely to go ahead immediately, not

until the state's highest criminal court resolves questions about Texas' use of lethal injections raised in an appeal by an Arlington killer, the death chamber in Huntsville will likely remain quiet a little longer, a prominent defense lawyer said.

"I expect it will be Katie bar the door when it comes to judges setting execution dates in Texas," said David Dow, who runs the University of Houston Law Center. "But until the Court of Criminal Appeals issues its ruling on whether the Texas protocol [for administering lethal injections] holds up, I doubt we'll see any executions go forward."

Last year, less than two weeks after the Supreme Court announced that it would review the way Kentucky administers lethal injections, the Texas criminal appeals court served notice that it would review Texas' method.

Readers may recall Texas last execution when, despite a de facto SCOTUS moratorium on executions pending the outcome of the Baze case, Presiding Judge Sharon Keller bypassed her colleagues to put Michael Richard to death after a computer error caused the defendant to miss last-minute filing deadline. No word yet on the outcome of ethics complaints filed by hundreds of lawyers and citizens in the wake of Richard's death.

Now the CCA has a guide as to what's most important about a death "procedure," says Michael Dorf - aesthetics, at least according to Chief Justice John Roberts:

Whatever the ruling's ultimate practical impact may be, however, the Baze decision is important for the mode of reasoning the Court employs. The controlling opinion by Chief Justice Roberts--joined by Justices Kennedy and Alito--appears to endorse the proposition that the state can expose people to an increased risk of an excruciating death on what amount to merely aesthetic grounds. ...

Thus, whatever the goals of those who adopted the three-drug protocol in the first place, in the United States, the main point of continued inclusion of pancuronium bromide in the lethal injection protocol appears to be merely aesthetic. Were it not for the paralyzing effect of pancuronium bromide, then the body of an unconscious prisoner killed by potassium chloride-induced cardiac arrest might convulse in a manner that would be disturbing to witnesses. As Chief Justice Roberts wrote in his plurality opinion, the state "has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress."

I suppose if the "dignity" of the "procedure" is paramount, that does away with my idea for a possible lethal injection replacement: throwing the condemned out of airplanes. I'm guessing that means hosting executions on Reality TV is probably out, too.