Oct. 4, 2007
If chemical cocktail is ruled cruel and unusual, states likely to just adjust mix
By LISA SANDBERG Copyright 2007 Houston Chronicle Austin Bureau
AUSTIN — Some form of lethal injection is likely to remain the method of execution in much of the United States, no matter how the U.S. Supreme Court rules next year, death penalty experts say.
"I don't think the Supreme Court's decision is going to herald the end of capital punishment," said Houston attorney David Dow.
Should the court deem as "cruel and unusual" the current three-chemical cocktail administered to death row inmates in Kentucky, where a challenge is pending, Dow said states likely would just adjust the mixture.
Dow represents Heliberto Chi, 28, the North Texas inmate whose scheduled execution Wednesday for killing a shopkeeper in Arlington was halted this week by the Texas Court of Criminal Appeals.
Though the lethal injection argument affects nearly every death row case in the country — the number of death row inmates nationally is put at more than 3,330 — the scope of the challenge is rather narrow, Dow said.
Harris County District Attorney Chuck Rosenthal said his office would "pursue death penalty cases just like we always have."
He said his office was moving forward this week with one of two death penalty cases. The second case would be prosecuted early next year. He said he was confident the nation's highest court would not view lethal injections as inhumane.
"When the Founding Fathers wrote about cruel and unusual punishment, they were talking about things like drawing and quartering and being tortured to death," not lethal injection, he said.
Executions nationally are expected to grind to a halt, however, until the court issues its ruling in Baze v. Rees next year.
Thirty-seven of 38 states with the death penalty, including Texas, carry out executions with lethal injections.
Texas, the country's most active death penalty state, hasn't issued a moratorium on executions, but Tuesday's decision by the Texas Court of Criminal Appeals to stay Chi's execution amounts to an informal one. Because there's no moratorium, death row attorneys will be forced to file paperwork on each case before the state's highest court, experts said.
There are two executions scheduled in Texas this year, both from Tarrant County, and two scheduled early next year, one from Dallas County, the other from Bell County.
The Texas Court of Criminal Appeals, in its ruling Tuesday, gave attorneys for the state 30 days to file arguments that its executions do not cause unnecessary pain.
Prosecutors around the state seem undaunted by the current halt in executions, temporary as they are likely to be.
Jefferson County District Attorney Tom Maness said he thought lethal injection would survive the challenge against it, but if it doesn't, "states will redo their chemicals. That's quite simple to do," Maness said from Beaumont.
Even if the lethal injection challenges didn't lead to the abolition of the death penalty, Dow said he was hopeful the review would provide more details about state-sponsored killings.
He said it was possible the public would learn about the qualifications of the people who carry out executions, the training they receive, whether a doctor is present and the precise dosage of the lethal cocktail.
"There's more we don't know than that we do," he said. "These are all things that are germane to the issue of whether lethal injection violates the Eighth Amendment."