Supreme Court will hear key Kentucky case in January.
By Rob Hotakainen - email@example.com
Published 12:00 am PST Sunday, November 11, 2007
Lisa Montgomery, freshly convicted for killing a pregnant woman and stealing her fetus, won't pay the ultimate price any time soon.
"It'll be many years before it's all wrapped up," said Matt Whitworth, assistant U.S. attorney.
Even in Texas, where the conveyer belt to the death chamber has whirled faster than in other states, they've just postponed the Feb. 26 death date for Derrick Sonnier. He raped and murdered a woman and then stabbed her 2-year-old son to death. That was back in 1991.
"We're just not going to go forward with execution dates, although we're still trying cases as death penalty cases," said Roe Wilson, assistant district attorney of Harris County (Houston), which accounts for a quarter of 405 Texas executions since 1976.
Across the country, the capital punishment machine clearly went into idle Oct. 30, when a majority of the U.S. Supreme Court blocked the execution of a Mississippi man who killed 20 years ago. The stay, which came after his supposed last meal of barbecued pork chops but 19 minutes before the lethal drip was to be opened, sent a signal to judges, prosecutors and prison officials in more than three dozen states that accept capital punishment.
The court would not sanction any more appealed executions until the question is settled: Can the drugs used in lethal injections cause cruel and unusual punishment?
The Mississippi case, which involved the fatal beating of a 56-year-old woman who had just been at church choir practice, was the third such stay since the justices decided in September to consider a lethal-injection case from Kentucky, Baze v. Rees, which will be argued in January.
Lethal injections have been used in 85 percent of the 1,099 executions since 1976. The others were electrocution (14 percent) and gas chamber (1 percent), while three prisoners were hanged and two were killed by firing squads.
Thirty-eight states have the death penalty on the books, but New York's law was declared unconstitutional with one man still on death row. Of the remaining 37 states, all but one use injection. Nebraska uses the electric chair.
Even before the lull, the rate had declined to 42 this year, the fewest since 1994. Executions peaked at 98 in 1999.
Death penalty opponents see an opening. The American Bar Association is promoting a nationwide moratorium on capital punishment. Polls show more Americans questioning its use, particularly over concerns of wrongful convictions.
"We should take advantage of this apparent pause in executions to consider the severe injustices within the system as a whole," said Wisconsin Democratic Sen. Russ Feingold, who has introduced a bill called the Federal Death Penalty Abolition Act.
"Right now, certainly the abolitionists are gaining some steam," said Daniel Medwed, a law professor at the University of Utah. "The lay of the land is that essentially everyone is waiting for the Supreme Court. A lot of states are just waiting and seeing how that process unfolds. They don't have to do that, but they're being very pragmatic."
Whitworth, who convinced a jury in Kansas City that Montgomery should die for strangling an eight-months-pregnant woman, cutting the fetus out of her womb and kidnapping the baby girl, expects executions to get back on track after the Supreme Court decides next year.
"I think this is just a temporary thing," he said.
What are a few more months when cases can take decades to work their way through the appeals process? Proponents of the process note that none of the cases before the court question the constitutionality of capital punishment – unlike in 1972, when the court scrapped the death penalty laws but accepted a reformed system four years later.
Only the protocols, or how the drugs are combined, for lethal injection are at issue at the moment, not its constitutionality.
But the Eighth Amendment argument filed by more and more condemned men has been tying up lower courts.
Wilson, who supports the death penalty, said she's eager to have the Supreme Court review lethal injections in an attempt to quell the controversy. But she defended them, saying they provide "the most painless way."
"It's basically like having major surgery," she said. "If you've ever had that done, you know that one second you're aware and the next second the operation's over."
Lethal injections involve three chemicals: sodium thiopental to induce unconsciousness, pancuronium bromide to cause muscle paralysis, and potassium chloride to stop the heart.
Opponents of the death penalty say that if inadequate levels of sodium thiopental are administered, the anesthetic effect can wear off before the heart stops. In a report issued last month, Amnesty International cited the case of Angel Diaz of Florida, who "appeared to be moving 24 minutes after the first injection, grimacing, blinking, licking his lips, blowing and appearing to mouth words."
The curtains surrounding the stretcher were eventually closed.
"The numerous recent botched executions have shattered the myth that lethal injection is a gentle process," said Sue Gunawardena-Vaughn, director of Amnesty International USA's Program to Abolish the Death Penalty. "If lethal injection doesn't call medical ethics into question, what does? Health professionals are charged with saving lives, not ending them."
Some argue that the lethal injections numb prisoners' faces, making it impossible for them to make expressions that show pain. As a result, they're easier for observers to watch.
At the University of Utah, Medwed predicted that death penalty opponents will gain more traction if the Supreme Court concludes that lethal injections are cruel and unusual punishment.
"Lethal injections have been in vogue for a long time," Medwed said. "What makes this unusual is that the most popular and prominent method of execution is being attacked. The interesting thing will be to see if the Supreme Court finds it cruel and unusual, what's left? What are states going to do? ... Some people think, in Utah at least, that the firing squad is the most humane because it's just one bullet to the head – it's quick."
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Call Rob Hotakainen, McClatchy Washington Bureau, (202) 383-0009.