Deciphering the State of the Death Penalty

Supreme Court Memo

By LINDA GREENHOUSE

WASHINGTON, Oct. 18 — Is there a death penalty moratorium now in place, and how would we know?

The Supreme Court has granted two stays of execution and refused to vacate a third in the three weeks since it agreed to hear a challenge to Kentucky’s use of lethal injection.

On Thursday, the Georgia Supreme Court became the latest state court to interpret the justices’ actions as a signal to suspend at least some executions. It granted a stay to Jack Alderman, who had been scheduled to die by lethal injection Friday night for murdering his wife 33 years ago.

The top criminal court in Texas, a state that accounts for 405 of the 1,099 executions carried out in this country since 1976, has indicated that it will permit no more executions until the Supreme Court rules, sometime next spring. The Nevada Supreme Court this week postponed all executions in that state. The governor of Alabama gave one inmate a 45-day reprieve. The country’s most recent execution took place in Texas on the night of Sept. 25, hours after the Supreme Court announced its review of the Kentucky case.

This sequence of events has led some death penalty opponents and other analysts to declare that a de facto moratorium is in place.

“The states are getting the message,” Richard C. Dieter, director of the Death Penalty Information Center, an anti-death-penalty research organization, said in an interview. And Douglas A. Berman, a law professor at Ohio State University who has followed the issue closely, proclaimed “moratorium mojo” Thursday morning on his blog, Sentencing Law and Policy.

But there is enough ambiguity to warrant caution. Both the Kentucky case and the national situation are complex, and the signals the Supreme Court has been sending are far from clear.

For example, on Wednesday, in granting a stay four hours before the scheduled execution of a Virginia inmate, Christopher S. Emmett, the justices said the stay would last only until the federal appeals court in Richmond decided Mr. Emmett’s challenge to the state’s lethal injection protocol — not until their own ruling. The Supreme Court offered no commitment to extend the stay if the appeals court ruled against him.

And the Georgia Supreme Court’s one-paragraph order in Mr. Alderman’s case on Thursday noted pointedly that the inmate’s challenge to lethal injection “could not reasonably have been raised during the time applicant’s last state habeas petition was pending.”

Georgia adopted lethal injection as its method of execution only in 2000, while Mr. Alderman, the country’s longest-serving death row inmate, has been on death row more than 30 years and exhausted his appeals many years ago. The state court’s clear implication was that an inmate who was in a position to challenge lethal injection in a timely manner and yet failed to do so might be deemed to have forfeited the claim.

In another case, an Arkansas inmate, Jack H. Jones, raised the lethal injection issue nine years after his conviction and sentence became final. That tardiness apparently bothered only Justice Antonin Scalia on Tuesday, when by a vote of 8 to 1 the court denied an application by Arkansas to vacate a stay that the federal appeals court in St. Louis had granted to Mr. Jones.

Justice Scalia objected that the Supreme Court’s decision to hear the Kentucky case “does not alter the application of normal rules of procedure, including those related to timeliness.” He said the appeals court appeared to be operating on the “mistaken premise” that every lethal injection challenge now merited a stay.

While it might be tempting to infer from the silence of the other justices that the rest of the court has no such qualms about tardy claims, that is not necessarily the case. A stay granted by a lower court arrives with a certain presumption of correctness, and refusing to vacate it is an easier call than deciding to grant a stay in the first instance.

The justices, sticklers for procedure, have not yet been asked to grant a stay in a situation of clear “procedural default” — words that strike a chill in the heart of any Supreme Court advocate, even in a non-death-penalty case.

What would the court do in such a case? “I wouldn’t put my money on anything,” Elisabeth Semel, a leading death penalty expert, said in an interview.

Professor Semel, who runs the Death Penalty Clinic of Boalt Hall Law School at the University of California, Berkeley, said that “it would be inaccurate and very presumptuous to call this a moratorium.” Rather, she said, “what we’re seeing is a combination of different courts, and different executives, deciding to be prudent” while waiting to see what the Supreme Court will do.

The answer could be considerably less than many people seem to expect from the Kentucky case, Baze v. Rees. The question is not the constitutionality of lethal injection as such, and probably not even the constitutionality of the three-drug combination that inmates and their lawyers describe as posing an unacceptable risk of needless pain and suffering.

It is possible, even likely, that the justices will confine their eventual decision to the standard that the inmates need to meet to show that use of the three-drug combination amounts to cruel and unusual punishment within the meaning of the Eighth Amendment. Must it be shown to pose an unnecessary risk of pain? A substantial risk? Must prison officials be shown to act with “deliberate indifference” to an inmate’s suffering?

To say the least, these questions lie at some remove from the one question that brought all executions to a halt 35 years ago as the country held its breath and waited for an answer from the court: Is the death penalty constitutional?