JUSTICE BREYER, concurring in the judgment.

http://www.floridasupport.us/Baze/Bazeopinion.htm


Cite as: 553 U. S. ____ (2008) 1

BREYER, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

No. 07–5439

RALPH BAZE AND THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF KENTUCKY

[April 16, 2008]

JUSTICE BREYER, concurring in the judgment.

Assuming the lawfulness of the death penalty itself,
petitioners argue that Kentucky’s method of execution,
lethal injection, nonetheless constitutes a constitutionallyforbidden, “cruel and usual punishmen[t].” U. S. Const.,
Amdt. 8. In respect to how a court should review such a
claim, I agree with JUSTICE GINSBURG. She highlights the
relevant question, whether the method creates an untoward,
readily avoidable risk of inflicting severe and unnecessary
suffering. Post, at 11 (dissenting opinion). I
agree that the relevant factors—the “degree of risk,” the
“magnitude of pain,” and the “availability of alternatives”—
are interrelated and each must be considered.
Post, at 4. At the same time, I believe that the legal merits
of the kind of claim presented must inevitably turn not
so much upon the wording of an intermediate standard ofreview as upon facts and evidence. And I cannot find,
either in the record in this case or in the literature on the
subject, sufficient evidence that Kentucky’s executionmethod poses the “significant and unnecessary risk of
inflicting severe pain” that petitioners assert. Brief for
Petitioners 28.

In respect to the literature, I have examined the periodi

BAZE v. REES
BREYER, J., concurring in judgment

cal article that seems first to have brought widespread
legal attention to the claim that lethal injection might
bring about unnecessary suffering. See ante, at 13, n. 2
(plurality opinion); Denno, The Lethal Injection Quandary:
How Medicine Has Dismantled the Death Penalty, 76
Ford. L. Rev. 49, 105, n. 366 (2007) (collecting cases in
which condemned inmates cited the Lancet study). The
article, by Dr. Leonidas G. Koniaris, Teresa A. Zimmers(of the University of Miami School of Medicine), and others,
appeared in the April 16, 2005, issue of the Lancet, an
eminent, peer-reviewed medical journal. See Koniaris,
Zimmers, Lubarsky, & Sheldon, Inadequate Anaesthesiain Lethal Injection for Execution, 365 Lancet 1412 (hereinafter
Lancet Study). The authors examined “autopsytoxicology results from 49 executions in Arizona, Georgia,
North Carolina, and South Carolina.” Id., at 1412–1413.
The study noted that lethal injection usually consists of
sequential administration of a barbiturate (sodium thiopental),
followed by injection of a paralyzing agent (pancuronium
bromide) and a heart-attack-inducing drug(potassium chloride). The study focused on the effectiveness
of the first drug in anaesthetizing the inmate. See
id., at 1412. It noted that the four States used 2 grams of
thiopental. Id., at 1413. (Kentucky follows a similar
system but currently uses 3 grams of sodium thiopental.
See ante, at 5–6 (plurality opinion)). Although the sodiumthiopental dose (of, say, 2 grams) was several times thedose used in ordinary surgical operations, the authorsfound that the level of barbiturate present in the bloodstream
several hours (or more) after death was lower than
the level one might expect to find during an operation.
Lancet Study 1413–1414. With certain qualifications,
they state that “21 (43%)” of the examined instances “had
[thiopental] concentrations consistent with consciousness,”
id., at 1413,—a fact that should create considerable concern
given the related likelihood of unexpressed suffering.

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BREYER, J., concurring in judgment

The authors suggest that, among other things, inadequatetraining may help explain the results. Id., at 1414.

The Lancet Study, however, may be seriously flawed. In
its September 24, 2005, issue, the Lancet published three
responses. The first, by one of the initial referees, Jonathan
I. Groner of Children’s Hospital, Columbus, Ohio,
claimed that a low level of thiopental in the bloodstreamdoes not necessarily mean that an inadequate dose wasgiven, for, under circumstances likely common to lethal
injections, thiopental can simply diffuse from the bloodstream
into surrounding tissues. See Inadequate Anaesthesia
in Lethal Injection for Execution, 366 Lancet 1073.
And a long pause between death and measurement means
that this kind of diffusion likely occurred. See ibid. For
this reason and others, Groner, who said he had initially
“expressed strong support for the article,” had become
“concerned” that its key finding “may be erroneous because
of lack of equipoise in the study.” Ibid.

The second correspondents, Mark J. S. Heath (petitioners’
expert in their trial below), Donald R. Stanski, and
Derrick J. Pounder, respectively of the Department ofAnesthesiology, Columbia University, of Stanford University
School of Medicine, and the University of Dundee,
United Kingdom, concluded that “Koniaris and colleagues
do not present scientifically convincing data to justify their
conclusion that so large a proportion of inmates haveexperienced awareness during lethal injection.” Ibid.
These researchers noted that because the blood sampleswere taken “several hours to days after” the inmates’
deaths, the postmortem concentrations of thiopental—alipophilic drug that diffuses from blood into tissue—could
not be relied on as accurate indicators for concentrations
in the blood stream during life. Ibid. See also ante, at 12–
13, n. 2 (plurality opinion).

The third correspondents, Robyn S. Weisman, Jeffrey N.
Bernstein, and Richard S. Weisman, of the University of

BAZE v. REES

BREYER, J., concurring in judgment

Miami, School of Medicine, and Florida Poison Information
Center, said that “[p]ost-mortem drug concentrationsare extremely difficult to interpret and there is substantial
variability in results depending on timing, anatomicalorigin of the specimen, and physical and chemical properties
of the drug.” 366 Lancet, at 1074. They believed that
the original finding “requires further assessment.” Ibid.

The authors of the original study replied, defending theaccuracy of their findings. See id., at 1074–1076. Yet,
neither the petition for certiorari nor any of the briefs filed
in this Court (including seven amici curiae briefs supporting
the petitioners) make any mention of the LancetStudy, which was published during petitioners’ trial. In
light of that fact, and the responses to the original study, a
judge, nonexpert in these matters, cannot give the LancetStudy significant weight.

The literature also contains a detailed article on the
subject, which appeared in 2002 in the Ohio State Law
Journal. The author, Professor Deborah W. Denno, examined
executions by lethal injection in the 36 States where
thiopental is used. See When Legislatures DelegateDeath: The Troubling Paradox Behind State Uses of Electrocution
and Lethal Injection and What It Says About Us,
63 Ohio St. L. J. 63. In Table 9, the author lists 31
“Botched Lethal Injection Executions” in the time from ourdecision in Gregg v. Georgia, 429 U. S. 1301 (1976),
through 2001. See Denno, 63 Ohio St. L. J., at 139–141.
Of these, 19 involved a problem of locating a suitable veinto administer the chemicals. Ibid. Eleven of the remaining
12 apparently involved strong, readily apparent physical
reactions. Ibid. One, taking place in Illinois in 1990,
is described as involving “some indication that, whileappearing calm on the outside due to the paralyzing
drugs, [the inmate] suffered excruciating pain.” Id., at

139. The author adds that “[t]here were reports of faulty
equipment and inexperienced personnel.” Ibid. This

Cite as: 553 U. S. ____ (2008)
BREYER, J., concurring in judgment

article, about which Professor Denno testified at petitioners’
trial and on which petitioners rely in this Court, maywell provide cause for concern about the administration of
the lethal injection. But it cannot materially aid the
petitioners here. That is because, as far as the record here
reveals, and as the Kentucky courts found, Kentucky’s use
of trained phlebotomists and the presence of observers
should prevent the kind of “botched” executions that
Denno’s Table 9 documents.

The literature also casts a shadow of uncertainty uponthe ready availability of some of the alternatives to lethal
execution methods. Petitioners argued to the trial court,
for example, that Kentucky should eliminate the use of aparalytic agent, such as pancuronium bromide, which
could, by preventing any outcry, mask suffering an inmatemight be experiencing because of inadequate administration
of the anesthetic. See Brief for Petitioners 51–57;
Reply Brief for Petitioners 18, and n. 6. And they point
out that use of pancuronium bromide to euthanize animalsis contrary to veterinary standards. See id., at 20 (citingBrief for Dr. Kevin Concannon et al. as Amici Curiae 17–
18). See also the Concannon Brief 4, 18, n. 5 (noting that
Kentucky, like 22 other States, prohibits the use of neuromuscular
blocking agents in euthanizing animals). In
the Netherlands, however, the use of pancuronium bromide
is recommended for purposes of lawful assisted
suicide. See ante, at 19–20 (plurality opinion) (discussing
the Royal Dutch Society for the Advancement of Pharmacyrecommendation of the use of a muscle relaxant such as
pancuronium in addition to thiopental). See also Kimsma,
Euthanasia and Euthanizing Drugs in The Netherlands,
reprinted in Drug Use in Assisted Suicide and Euthanasia193, 199–202 (M. Battin & A. Lipman eds. 1996) (discussing
use of neuromuscular relaxants). Why, one might ask,
if the use of pancuronium bromide is undesirable, wouldthose in the Netherlands, interested in practices designed

BAZE v. REES

BREYER, J., concurring in judgment

to bring about a humane death, recommend the use ofthat, or similar, drugs? Petitioners pointed out that in the
Netherlands, physicians trained in anesthesiology areinvolved in assisted suicide, while that is not the case in
Kentucky. See Tr. of Oral Arg. 55. While important, that
difference does not resolve the apparently conflictingviews about the inherent propriety or impropriety of use ofthis drug to extinguish human life humanely.

Similarly, petitioners argue for better trained personnel.
But it is clear that both the American Medical Association
(AMA) and the American Nursing Association (ANA) have
rules of ethics that strongly oppose their members’ participation
in executions. See Brief for American Society
of Anesthesiologists as Amicus Curiae 2–3 (citing
AMA, Code of Medical Ethics, Policy E–2.06 Capital
Punishment (2000), online at http://www.ama-assn.org/
ama1/pub/upload/mm/369/e206capitalpunish.pdf (all In-
ternet materials as visited Apr. 10, 2008, and available
in Clerk of Court’s case file)); ANA, Position State-
ment: Nurses’ Participation in Capital Punishment
(1994), http://nursingworld.org/MainMenuCategories/
HealthcareandPolicyIssues/ANAPositionStatements/
EthicsandHumanRights.aspx (noting that nurses’ participation
in executions “is viewed as contrary to the fundamental
goals and ethical traditions of the profession”).
Cf. Ky. Rev. Stat. Ann. §431.220(3) (West 2006) (Kentucky
prohibiting a physician from participating in the “conduct
of an execution,” except to certify the cause of death). And
these facts suggest that finding better trained personnel
may be more difficult than might, at first blush, appear.

Nor can I find in the record in this case any strongerevidence in petitioners’ favor than the literature itself
provides of an untoward, readily avoidable risk of severepain. Indeed, JUSTICE GINSBURG has accepted what I
believe is petitioners’ strongest claim, namely, Kentucky

Cite as: 553 U. S. ____ (2008)
BREYER, J., concurring in judgment

should require more thorough testing as to unconsciousness.
See post, at 5–11. In respect to this matter, however,
I must agree with the plurality and JUSTICE
STEVENS. The record provides too little reason to believe
that such measures, if adopted in Kentucky, would make asignificant difference.

The upshot is that I cannot find, either in the record orin the readily available literature that I have seen, sufficient
grounds to believe that Kentucky’s method of lethal
injection creates a significant risk of unnecessary suffering.
The death penalty itself, of course, brings with it
serious risks, for example, risks of executing the wrong
person, see, e.g., ante, at 16–17 (STEVENS, J., concurring injudgment), risks that unwarranted animus (in respect,
e.g., to the race of victims), may play a role, see, e.g., ante,
at 16, risks that those convicted will find themselves on
death row for many years, perhaps decades, to come, see
Smith v. Arizona, 552 U. S. ___ (2007) (BREYER, J., dissenting
from denial of certiorari). These risks in partexplain why that penalty is so controversial. But the
lawfulness of the death penalty is not before us. And
petitioners’ proof and evidence, while giving rise to legitimate
concern, do not show that Kentucky’s method ofapplying the death penalty amounts to “cruel and unusual
punishmen[t].”

For these reasons, I concur in the judgment.

Ginsburg and Souter dissent

http://www.floridasupport.us/Baze/Bazeopinion.htm

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 07–5439

RALPH BAZE AND THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF KENTUCKY

[April 16, 2008]

JUSTICE GINSBURG, with whom JUSTICE SOUTER joins,
dissenting.

It is undisputed that the second and third drugs used in
Kentucky’s three-drug lethal injection protocol, pancuronium
bromide and potassium chloride, would cause aconscious inmate to suffer excruciating pain. Pancuronium
bromide paralyzes the lung muscles and resultsin slow asphyxiation. App. 435, 437, 625. Potassium
chloride causes burning and intense pain as it circulates
throughout the body. Id., at 348, 427, 444, 600, 626. Use
of pancuronium bromide and potassium chloride on a
conscious inmate, the plurality recognizes, would be “constitutionally
unacceptable.” Ante, at 14.

The constitutionality of Kentucky’s protocol thereforeturns on whether inmates are adequately anesthetized bythe first drug in the protocol, sodium thiopental. Kentucky’s
system is constitutional, the plurality states, because
“petitioners have not shown that the risk of an
inadequate dose of the first drug is substantial.” Ante, at

15. I would not dispose of the case so swiftly given thecharacter of the risk at stake. Kentucky’s protocol lacks
basic safeguards used by other States to confirm that aninmate is unconscious before injection of the second and

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GINSBURG, J., dissenting

third drugs. I would vacate and remand with instructions
to consider whether Kentucky’s omission of those safeguards
poses an untoward, readily avoidable risk of inflicting
severe and unnecessary pain.

I
The Court has considered the constitutionality of aspecific method of execution on only three prior occasions.
Those cases, and other decisions cited by the parties and
amici, provide little guidance on the standard that should
govern petitioners’ challenge to Kentucky’s lethal injectionprotocol.
In Wilkerson v. Utah, 99 U. S. 130 (1879), the Court heldthat death by firing squad did not rank among the “crueland unusual punishments” banned by the EighthAmendment. In so ruling, the Court did not endeavor “to
define with exactness the extent of the constitutional
provision which provides that cruel and unusual punishments
shall not be inflicted.” Id., at 135–136. But it was
“safe to affirm,” the Court stated, that “punishments of
torture . . . , and all others in the same line of unnecessary
cruelty, are forbidden.” Id., at 136.
Next, in In re Kemmler, 136 U. S. 436 (1890), death by
electrocution was the assailed method of execution.1 The
Court reiterated that the Eighth Amendment prohibits“torture” and “lingering death.” Id., at 447. The word
“cruel,” the Court further observed, “implies . . . somethinginhuman . . . something more than the mere extinguishment
of life.” Ibid. Those statements, however, were
made en passant. Kemmler’s actual holding was that theEighth Amendment does not apply to the States, id., at

——————
1Hanging was the State’s prior mode of execution. Electrocution,
considered “less barbarous,” indeed “the most humane” way to administer
the death penalty, was believed at the time to “result in instantaneous,
and consequently in painless, death.” In re Kemmler, 136 U. S.
436, 443–444 (1890) (internal quotation marks omitted).

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GINSBURG, J., dissenting

448–449,2 a proposition we have since repudiated, see, e.g.,
Robinson v. California, 370 U. S. 660 (1962).

Finally, in Louisiana ex rel. Francis v. Resweber, 329

U. S. 459 (1947), the Court rejected Eighth and Fourteenth
Amendment challenges to a reelectrocution following
an earlier attempt that failed to cause death. The
plurality opinion in that case first stated: “The traditional
humanity of modern Anglo-American law forbids the
infliction of unnecessary pain in the execution of the death
sentence.” Id., at 463. But the very next sentence variedthe formulation; it referred to the “[p]rohibition against
the wanton infliction of pain.” Ibid.
No clear standard for determining the constitutionality
of a method of execution emerges from these decisions.
Moreover, the age of the opinions limits their utility as an
aid to resolution of the present controversy. The EighthAmendment, we have held, “‘must draw its meaning from
the evolving standards of decency that mark the progressof a maturing society.’” Atkins v. Virginia, 536 U. S. 304,
311–312 (2002) (quoting Trop v. Dulles, 356 U. S. 86, 101
(1958) (plurality opinion)). Wilkerson was decided 129
years ago, Kemmler 118 years ago, and Resweber 61 years
ago. Whatever little light our prior method-of-executioncases might shed is thus dimmed by the passage of time.

Further phrases and tests can be drawn from morerecent decisions, for example, Gregg v. Georgia, 428 U. S.
153 (1976). Speaking of capital punishment in the abstract,
the lead opinion said that the Eighth Amendmentprohibits “the unnecessary and wanton infliction of pain,”
id., at 173 (joint opinion of Stewart, Powell, and STEVENS,
JJ.); the same opinion also cautioned that a death sen——————

2The Court also ruled in Kemmler that the State’s election to carry
out the death penalty by electrocution in lieu of hanging encounteredno Fourteenth Amendment shoal: No privilege or immunity of United
States citizenship was entailed, nor did the Court discern any deprivation
of due process. Id., at 448–449.

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GINSBURG, J., dissenting

tence cannot “be imposed under sentencing procedures
that creat[e] a substantial risk that it would be inflicted inan arbitrary and capricious manner,” id., at 188.

Relying on Gregg and our earlier decisions, the Kentucky
Supreme Court stated that an execution procedure
violates the Eighth Amendment if it “creates a substantial
risk of wanton and unnecessary infliction of pain, tortureor lingering death.” 217 S. W. 3d 207, 209, 210 (2006).
Petitioners respond that courts should consider “(a) the
severity of pain risked, (b) the likelihood of that pain
occurring, and (c) the extent to which alternative means
are feasible.” Brief for Petitioners 38 (emphasis added).
The plurality settles somewhere in between, requiring a
“substantial risk of serious harm” and consideringwhether a “feasible, readily implemented” alternative can
“significantly reduce” that risk. Ante, at 13 (internalquotation marks omitted).

I agree with petitioners and the plurality that the degree
of risk, magnitude of pain, and availability of alternatives
must be considered. I part ways with the plurality,
however, to the extent its “substantial risk” test sets a
fixed threshold for the first factor. The three factors are
interrelated; a strong showing on one reduces the importance
of the others.

Lethal injection as a mode of execution can be expected,
in most instances, to result in painless death. Rare
though errors may be, the consequences of a mistake
about the condemned inmate’s consciousness are horrendous
and effectively undetectable after injection of thesecond drug. Given the opposing tugs of the degree of riskand magnitude of pain, the critical question here, as I see
it, is whether a feasible alternative exists. Proof of “a
slightly or marginally safer alternative” is, as the plurality
notes, insufficient. Ante, at 12. But if readily availablemeasures can materially increase the likelihood that theprotocol will cause no pain, a State fails to adhere to con

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GINSBURG, J., dissenting

temporary standards of decency if it declines to employ
those measures.

II
Kentucky’s Legislature adopted lethal injection as amethod of execution in 1998. See 1998 Ky. Acts ch. 220, p.
777, Ky. Rev. Stat. Ann. §431.220(1)(a) (West 2006).
Lawmakers left the development of the lethal injection
protocol to officials in the Department of Corrections.
Those officials, the trial court found, were “given the taskwithout the benefit of scientific aid or policy oversight.”
App. 768. “Kentucky’s protocol,” that court observed, “was
copied from other states and accepted without challenge.”
Ibid. Kentucky “did not conduct any independent scientific
or medical studies or consult any medical professionals
concerning the drugs and dosage amounts to be injected
into the condemned.” Id., at 760. Instead, the trial
court noted, Kentucky followed the path taken in other
States that “simply fell in line” behind the three-drug
protocol first developed by Oklahoma in 1977. Id., at 756.
See also ante, at 4, n. 1 (plurality opinion).
Kentucky’s protocol begins with a careful measure: Only
medical professionals may perform the venipunctures andestablish intravenous (IV) access. Members of the IV
team must have at least one year’s experience as a certified
medical assistant, phlebotomist, emergency medical
technician (EMT), paramedic, or military corpsman. App.
984; ante, at 16 (plurality opinion). Kentucky’s IV team
currently has two members: a phlebotomist with 8 years’
experience and an EMT with 20 years’ experience. App.
273–274. Both members practice siting catheters at ten
lethal injection training sessions held annually. Id., at

984.
Other than using qualified and trained personnel to
establish IV access, however, Kentucky does little to ensure
that the inmate receives an effective dose of sodium

BAZE v. REES
GINSBURG, J., dissenting

thiopental. After siting the catheters, the IV team leavesthe execution chamber. Id., at 977. From that point
forward, only the warden and deputy warden remain withthe inmate. Id., at 276. Neither the warden nor the deputy
warden has any medical training.

The warden relies on visual observation to determine
whether the inmate “appears” unconscious. Id., at 978. In
Kentucky’s only previous execution by lethal injection, the
warden’s position allowed him to see the inmate best from
the waist down, with only a peripheral view of the inmate’s
face. See id., at 213–214. No other check for consciousness
occurs before injection of pancuronium bromide.
Kentucky’s protocol does not include an automaticpause in the “rapid flow” of the drugs, id., at 978, or any ofthe most basic tests to determine whether the sodium
thiopental has worked. No one calls the inmate’s name,
shakes him, brushes his eyelashes to test for a reflex, or
applies a noxious stimulus to gauge his response.

Nor does Kentucky monitor the effectiveness of the
sodium thiopental using readily available equipment, even
though the inmate is already connected to an electrocardiogram
(EKG), id., at 976. A drop in blood pressure orheart rate after injection of sodium thiopental would not
prove that the inmate is unconscious, see id., at 579–580;
ante, at 20–21 (plurality opinion), but would signal thatthe drug has entered the inmate’s bloodstream, see App.
424, 498, 578, 580; 8 Tr. 1099 (May 2, 2005). Kentucky’sown expert testified that the sodium thiopental should
“cause the inmate’s blood pressure to become very, verylow,” App. 578, and that a precipitous drop in blood pressure
would “confir[m]” that the drug was having its expected
effect, id., at 580. Use of a blood pressure cuff and
EKG, the record shows, is the standard of care in surgeryrequiring anesthesia. Id., at 539.3

——————
3The plurality deems medical standards irrelevant in part because

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GINSBURG, J., dissenting

A consciousness check supplementing the warden’svisual observation before injection of the second drug iseasily implemented and can reduce a risk of dreadful pain.
Pancuronium bromide is a powerful paralytic that prevents
all voluntary muscle movement. Once it is injected,
further monitoring of the inmate’s consciousness becomes
impractical without sophisticated equipment and training.
Even if the inmate were conscious and in excruciatingpain, there would be no visible indication.4

Recognizing the importance of a window between thefirst and second drugs, other States have adopted safeguards
not contained in Kentucky’s protocol. See Brief for
Criminal Justice Legal Foundation as Amicus Curiae 19–

23.5 Florida pauses between injection of the first andsecond drugs so the warden can “determine, after consultation,
that the inmate is indeed unconscious.” Light-
bourne v. McCollum, 969 So. 2d 326, 346 (Fla. 2007) (per
curiam) (internal quotation marks omitted). The warden
——————
“drawn from a different context.” Ante, at 21. Medical professionals
monitor blood pressure and heart rate, however, not just to save lives,
but also to reduce the risk of consciousness during otherwise painful
procedures. Considering that the constitutionality of Kentucky’sprotocol depends on guarding against the same risk, see supra, at 1;
ante, at 14–15 (plurality opinion), the plurality’s reluctance to considermedical practice is puzzling. No one is advocating the wholesaleincorporation of medical standards into the Eighth Amendment. But
Kentucky could easily monitor the inmate’s blood pressure and heart
rate without physician involvement. That medical professionals
consider such monitoring important enough to make it the standard ofcare in medical practice, I remain persuaded, is highly instructive.
4Petitioners’ expert testified that a layperson could not tell from visual
observation if a paralyzed inmate was conscious and that doing sowould be difficult even for a professional. App. 418. Kentucky’s warden
candidly admitted: “I honestly don’t know what you’d look for.” Id.,
at 283.
5Because most death-penalty States keep their protocols secret, acomprehensive survey of other States’ practices is not available. See
Brief for American Civil Liberties Union et al. as Amici Curiae 6–12.

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GINSBURG, J., dissenting

does so by touching the inmate’s eyelashes, calling hisname, and shaking him. Id., at 347.6 If the inmate’s
consciousness remains in doubt in Florida, “the medical
team members will come out from the chemical room and
consult in the assessment of the inmate.” Ibid. Duringthe entire execution, the person who inserted the IV linemonitors the IV access point and the inmate’s face onclosed circuit television. Ibid.

In Missouri, “medical personnel must examine theprisoner physically to confirm that he is unconscious using
standard clinical techniques and must inspect the catheter
site again.” Taylor v. Crawford, 487 F. 3d 1072, 1083
(CA8 2007). “The second and third chemicals are injected
only after confirmation that the prisoner is unconscious
and after a period of at least three minutes has elapsed
from the first injection of thiopental.” Ibid.

In California, a member of the IV team brushes
the inmate’s eyelashes, speaks to him, and shakes himat the halfway point and, again, at the completion of
the sodium thiopental injection. See State of Califor-
nia, San Quentin Operational Procedure No. 0–770, Execution
by Lethal Injection, §V(S)(4)(e) (2007), online athttp://www.cdcr.ca.gov/News/docs/RevisedProtocol.pdf.

In Alabama, a member of the execution team “begin[s]
by saying the condemned inmate’s name. If there is no
——————
6Florida’s expert in Lightbourne v. McCollum, 969 So. 2d 326 (Fla.
2007) (per curiam), who also served as Kentucky’s expert in this case,
testified that the eyelash test is “probably the most common
first assessment that we use in the operating room to determine . . .
when a patient might have crossed the line from being conscious
to unconscious.” 4 Tr. in Florida v. Lightbourne, No. 81–170–CF
(Fla. Cir. Ct., Marion Cty.), p. 511, online at http://www.cjlf.org/files/
LightbourneRecord.pdf (all Internet materials as visited Apr. 14, 2008,
and in Clerk of Court’s case file). “A conscious person, if you touch theireyelashes very lightly, will blink; an unconscious person typically will
not.” Ibid. The shaking and name-calling tests, he further testified,
are similar to those taught in basic life support courses. See id., at 512.

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GINSBURG, J., dissenting

response, the team member will gently stroke the condemned
inmate’s eyelashes. If there is no response, theteam member will then pinch the condemned inmate’sarm.” Respondents’ Opposition to Callahan’s Application
for a Stay of Execution in Callahan v. Allen, O. T. 2007,
No. 07A630, p. 3 (internal quotation marks omitted).

In Indiana, officials inspect the injection site after administration
of sodium thiopental, say the inmate’s name,
touch him, and use ammonia tablets to test his response to
a noxious nasal stimulus. See Tr. of Preliminary Injunction
Hearing in 1:06–cv–1859 (SD Ind.), pp. 199–200,
online at http://www.law.berkeley.edu/clinics/dpclinic/
LethalInjection/Public/MoralesTaylorAmicus/20.pdf (hereinafter
Timberlake Hearing).7

These checks provide a degree of assurance—missing
from Kentucky’s protocol—that the first drug has beenproperly administered. They are simple and essentially
costless to employ, yet work to lower the risk that theinmate will be subjected to the agony of conscious suffocation
caused by pancuronium bromide and the searing paincaused by potassium chloride. The record contains no
explanation why Kentucky does not take any of these
elementary measures.

The risk that an error administering sodium thiopental
would go undetected is minimal, Kentucky urges, becauseif the drug was mistakenly injected into the inmate’stissue, not a vein, he “would be awake and screaming.”
Tr. of Oral Arg. 30–31. See also Brief for Respondents 42;
Brief for State of Texas et al. as Amici Curiae 26–27. That
argument ignores aspects of Kentucky’s protocol that
render passive reliance on obvious signs of consciousness,
such as screaming, inadequate to determine whether the
inmate is experiencing pain.

——————
7In Indiana, a physician also examines the inmate after injection of
the first drug. Timberlake Hearing 199.

BAZE v. REES

GINSBURG, J., dissenting

First, Kentucky’s use of pancuronium bromide to paralyze
the inmate means he will not be able to scream after
the second drug is injected, no matter how much pain he is
experiencing. Kentucky’s argument, therefore, appears torest on the assertion that sodium thiopental is itself painful
when injected into tissue rather than a vein. See App.

601. The trial court made no finding on that point, and
Kentucky cites no supporting evidence from executions inwhich it is known that sodium thiopental was injected intothe inmate’s soft tissue. See, e.g., Lightbourne, 969 So. 2d,
at 344 (describing execution of Angel Diaz).
Second, the inmate may receive enough sodium thiopental
to mask the most obvious signs of consciousness without
receiving a dose sufficient to achieve a surgical plane
of anesthesia. See 7 Tr. 976 (Apr. 21, 2005). If the drug isinjected too quickly, the increase in blood pressure cancause the inmate’s veins to burst after a small amount of
sodium thiopental has been administered. Cf. App. 217
(describing risk of “blowout”). Kentucky’s protocol does
not specify the rate at which sodium thiopental should beinjected. The executioner, who does not have any medicaltraining, pushes the drug “by feel” through five feet of
tubing. Id., at 284, 286–287.8 In practice sessions, unlike
in an actual execution, there is no resistance on the catheter,
see id., at 285; thus the executioner’s training maylead him to push the drugs too fast.

“The easiest and most obvious way to ensure that an
inmate is unconscious during an execution,” petitionersargued to the Kentucky Supreme Court, “is to check forconsciousness prior to injecting pancuronium [bromide].”
Brief for Appellants in No. 2005–SC–00543, p. 41. See
——————

8The length of the tubing contributes to the risk that the inmate willreceive an inadequate dose of sodium thiopental. The warden and
deputy warden watch for obvious leaks in the execution chamber, see
ante, at 6 (plurality opinion), but the line also snakes into the neighboring
control room through a small hole in the wall, App. 280.

Cite as: 553 U. S. ____ (2008)
GINSBURG, J., dissenting

also App. 30 (Complaint) (alleging Kentucky’s protocol
does not “require the execution team to determine that the
condemned inmate is unconscious prior to administering
the second and third chemicals”). The court did not address
petitioners’ argument. I would therefore remand
with instructions to consider whether the failure to include
readily available safeguards to confirm that the
inmate is unconscious after injection of sodium thiopental,
in combination with the other elements of Kentucky’sprotocol, creates an untoward, readily avoidable risk of
inflicting severe and unnecessary pain.

Today’s Opinions

Today’s Opinions

http://www.scotusblog.com/wp/todays-opinions-31/

Wednesday, April 16th, 2008 10:13 am | Ben Winograd | Comments Off

Today’s opinion by Justice Breyer in Begay v. United States (06-11543) is now available here. Justice Scalia filed an opinion concurring in the judgment. Justice Alito filed a dissenting opinion, in which Justices Souter and Thomas joined.

Today’s unanimous opinion by Justice Ginsburg in Burgess v. United States (06-11429) is now available here.

Today’s opinion in Baze v. Rees (07-5439) is now available here. The Chief Justice announced the judgment of the Court and delivered an opinion in which Justices Kennedy and Alito joined. Justice Alito also filed a concurring opinion. Justice Stevens and Breyer each filed an opinion concurring in the judgment. Justice Scalia and Thomas each filed an opinion concurring in the judgment, in which the other joined. Justice Ginsburg filed a dissenting opinion in which Justice Souter joined.

Lethal injection allowed

Lethal injection allowed

http://www.scotusblog.com/wp/lethal-injection-allowed/

Wednesday, April 16th, 2008 10:13 am | Lyle Denniston | Comments Off |

In a widely splintered decision, the Supreme Court on Wednesday cleared the way for death-row executions to resume across the country, concluding that the most common method of lethal injection does not violate the Constitution. The final vote was 7-2 in Baze v. Rees (07-5439), although there was no opinion that spoke for five or more Justices. The Court’s plurality adopted as a standard for assessing the validity of an execution method whether it poses a “substantial risk of serious harm.” It rejected the death row inmate’s proposal that the standard be “unnecessary risk.”

While the opinion appeared to leave open a chance that some further challenges could be made to the use of lethal drugs under a specific procedure in another state, it rejected a challenge to the method as used in Kentucky which is fairly close to the protocol used in 36 states and by the federal government.

Chief Justice John G. Roberts, Jr.’s plurality opinion said that a death-row inmate cannot win a challenge to an execution protocol “merely by showing a slightly or marginally safe alternative.” Instead, there must be proof that the options available must prevent a “substantial risk of serious harm.” A state is free to choose a procedure, Roberts wrote, if it is shown to be “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” The opinion then added: “If a state refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a state’s refusal to change its method can be viewed as ‘cruel and unusual punishment’ under the Eighth Amendment.”

With his license on the line, Mississippi doctor responds

With his license on the line, Mississippi doctor responds

http://www.innocenceproject.org/news/Blog.php

Posted: April 9, 2008 3:25 pm

After the Innocence Project filed a formal complaint yesterday to revoke Steven Hayne’s Mississippi medical license due to his autopsy misconduct, the doctor broke his long silence to the media and tried to defend his record.
(Innocence Project) officials say Hayne performs too many autopsies each year – about 1,500.

The National Association of Medical Examiners limits pathologists to fewer than 250 autopsies a year.

Hayne said such a number is arbitrary. “There’s one group that says you shouldn’t do more than 350, and there are other groups that don’t have a limit,” he said. “Should I call the Innocence Project to see if I’ve done too many and stop?”

He estimates he works 110 hours a week. “Some people were put on this earth to party, and some people were put on this earth to work,” he said. “I’ve always worked very hard.”

In the article, Hayne does not cite organizations that say it’s acceptable to do 350 autopsies a year, or organizations that recommend no limit at all – likely because no credible organization or expert would say it’s acceptable to do so many autopsies, let alone 1,500 per year. In the complaint filed yesterday, the Innocence Project also notes that Hayne claims to testify in more than 300 cases a year while also serving as the Medical Director of three different medical institutions. The volume of work is important, since the quality of Hayne’s work is so poor, as evidenced by numerous cases (several of which are cited in the complaint filed yesterday).

Hayne’s questionable practices have come to light after the exonerations of two Innocence Project clients – Levon Brooks and Kennedy Brewer – 15 years after Hayne’s testimony helped convict them of capital crimes they didn’t commit. Forrest Allgood, the prosecutor in both the Brewer and Brooks cases, comes to Hayne’s defense in today’s article.

"My experience with Hayne is that 99 times out of 100 he testifies this guy died and this is how he died," Allgood said. "How is that in any way convicting innocent people?"

Read the full article here. (Mississippi Clarion-Ledger, 04/09/08)

In the Brewer and Brooks cases, Hayne’s testimony substantiated Allgood’s central argument: that the defendants bit the victims before killing them. But the complaint filed yesterday says Hayne testified falsely to support Allgood’s prosecution case. Marks on the victims were not human bites, and they occurred after the victims died and their bodies were dumped in the water. There was no scientific basis for Hayne’s testimony, but the testimony was critical in helping Allgood wrongfully convict Brewer and Brooks in separate trials. As a result, Brewer was sentenced to die, and Brooks was sentenced to life without parole.

Read more coverage of yesterday’s request by the Innocence Project and the Mississippi Innocence Project that officials revoke Hayne’s license:

Associated Press: Attorneys ask state board to pull pathologist’s license

Read the Innocence Project’s April 8 letter to Mississippi officials.

"People Who are Well Represented at Trial do not Get the Death Penalty."

Two pieces addressing racial and economic inequality, legal representation
and the death penalty:

*Printed in Counterpunch: Opening remarks in the Senate's subcommittee on
the Constitution Hearing on "The Adequacy of Representation in Capital
Cases"
*New Hampshire Public Radio: Two Very Different Death Penalty Defendants"
(To listen to the piece, go to http://www.nhpr.org/node/15776)

http://www.counterpunch.org/feingold04082008.html

Apri1 8, 2008
"People Who are Well Represented at Trial do not Get the Death Penalty."
Legal Representation and the Death Penalty

By Sen. RUSS FEINGOLD
Opening remarks in the Senate's Subcommittee on the Constitution Hearing on
"The Adequacy of Representation in Capital Cases"

As a result of the litigation before the Supreme Court challenging the
constitutionality of lethal injection as a method of execution, there is
currently a de facto moratorium on executions in this country. This presents
us with an opportunity while executions are paused to take stock of one of
the most serious problems still facing many state capital punishment
systems: the quality of representation for capital defendants. That is the
purpose of this hearing.

Specifically, today we will examine the adequacy of representation for
individuals who have been charged with and convicted of capital crimes at
the state level. We will discuss the unique challenges of capital
litigation, and the unique resources and training capital defenders need to
be fully effective.

The Supreme Court held in 1932, in Powell v. Alabama, that defendants have
the right to counsel in capital cases. The Court explained that an execution
resulting from a process pitting "the whole power of the state" against a
prisoner charged with a capital offense who has no lawyer, and who may in
the worst circumstances even be illiterate, "would be little short of
judicial murder."

Those are strong but appropriate words. Over the following decades the
Supreme Court continued to recognize the importance of the right to counsel,
ultimately concluding in 1984 in Strickland v. Washington that the Sixth
Amendment guarantees not just the appointment of counsel, but the effective
assistance of counsel.

Yet as the witnesses today know from the variety of perspectives they bring
to this issue, these constitutional standards are just the beginning. The
work done by a criminal defense attorney at every stage of a capital case,
and the experts and resources available to that attorney, can literally mean
the difference between life and death.

This is not a hypothetical. The right to effective assistance of counsel is
not just a procedural right; it's not just lofty words in a Supreme Court
decision. Failing to live up to that fundamental obligation can lead to
innocent people being put on death row.

Just last week an inmate in North Carolina, Glen Edward Chapman, was
released after nearly 14 years on death row, bringing the number of death
row exonerees to 128 people. A judge threw out Mr. Chapman's conviction for
several reasons, including the complete failure of his attorneys to do any
investigation into one of the murders he was convicted of committing--

a
death that new evidence suggests may not have been a murder at all, but
rather the result of a drug overdose. Local prosecutors decided not to retry
Mr. Chapman, and dismissed the charges. According to North Carolina
newspapers, Mr. Chapman's incompetent defense was mounted by two lawyers
with a history of alcohol abuse. News reports indicate that one admitted to
drinking more than a pint of 80-proof rum every evening during other death
penalty trials, and the other was disciplined by the state bar for his
drinking problems.

Yet despite all this, Mr. Chapman on the day of his release is quoted as
saying, "I have no bitterness." This after nearly 14 mistaken years on death
row.

Mr. Chapman's story is astounding, but it is not unique. The quality of
representation in capital cases in this country is uneven, at best. And the
story also illustrates a critical point: The right to counsel is not
abstract. It absolutely affects outcomes. Supreme Court Justice Ruth Bader
Ginsburg has stated it about as plainly as possible: "People who are well
represented at trial do not get the death penalty."

Obviously, inadequate representation is not unique to capital cases. But the
challenges presented in a death penalty case are unique, and the
consequences of inadequate representation catastrophic. Capital cases tend
to be the most complicated homicide trials, and the penalty phase of a
capital case is like nothing else in the criminal justice system. To do
these cases right, at the trial, penalty, appellate, and state
post-conviction stages, requires vast resources and proper training--not
only for the defense attorneys who need to put in hundreds of hours of work,
but also investigators, forensic professionals, mitigation specialists and
other experts.

Yet those resources are not available in all too many cases. We will hear
more about that from our witnesses today. These realities have led people of
all political stripes--both supporters and opponents of the death
penalty--to raise grave concerns about the state of capital punishment
today. Judge William Sessions, the former FBI Director appointed by
President Reagan, was unable to join us in person today, but he submitted
written testimony, which without objection I will place in the record. In it
he notes that while he supports capital punishment, "[w]hen a criminal
defendant is forced to pay with his life for his lawyer's errors, the
effectiveness of the criminal justice system as a whole is undermined."

Unlike Judge Sessions, I oppose the death penalty. But as long as we have a
death penalty, we owe it to those who are charged with capital crimes, we
owe it to our criminal justice system, and we owe it to the principles of
equal justice on which this nation was founded, to make sure they have good
lawyers who have the resources they need to mount an effective defense.

This is not just the right thing to do. It is not just a high aspiration we
should try to achieve at some point in the distant future. It is a moral
imperative. And it is one that this country has failed to live up to, for
far too long.

Russell Feingold is a US senator from Wisconsin.

Put an end to Mississippi autopsy misconduct

Put an end to Mississippi autopsy misconduct

Posted: April 8, 2008 3:50 pm

The Innocence Project and the Mississippi Innocence Project today formally asked officials to revoke the medical license of Dr. Steven Hayne, whose fraud and misconduct has led to an unknown number of wrongful convictions. Evidence uncovered by the Innocence Project shows that Hayne has repeatedly broken Mississippi laws governing medical practice. He claims to conduct more than 80% of Mississippi’s criminal autopsies, and his practices have come under serious scrutiny this year after two men – Kennedy Brewer and Levon Brooks – were exonerated, 15 years after Hayne’s testimony helped convict them of capital crimes they did not commit.

Read today’s Innocence Project press release on the allegation requesting that Hayne’s license be revoked and download the full content of the summary letter sent to Mississippi officials.

Learn more about the Brewer and Brooks cases.

Two Very Different Death Penalty Defendants

http://www.nhpr.org/node/15776

Two Very Different Death Penalty Defendants

By Dan Gorenstein on Thursday, April 10, 2008.

The two defendants in New Hampshire facing the death penalty couldn¹t be
more different.

There¹s John Brooks, a white millionaire who¹s charged with plotting and
hiring men to kill an associate.

Then there¹s Michael Addison, an indigent black man, who is charged with
shooting a Manchester police officer.

New Hampshire Public Radio¹s Dan Gorenstein reports on whether money, race
and class may shape the outcome of these two cases.

The two defendants in New Hampshire facing the death penalty couldn¹t be
more different.

There¹s John Brooks, a white millionaire who¹s charged with plotting and
hiring men to kill an associate.

Then there¹s Michael Addison, an indigent black man, who is charged with
shooting a Manchester police officer.

New Hampshire Public Radio¹s Dan Gorenstein reports on whether money, race
and class may shape the outcome of these two cases.

In many jurisdictions around the country John Brooks has a much better
chance of beating a death penalty sentence than Michael Addison.

Richard Dieter of the Death Penalty Information Center in Washington says
that¹s because if you have money like Brooks does, you certainly won¹t have
to use lawyers like these.

"...sleeping lawyers, drunk lawyers. Lawyers arrested for drugs while doing
the trial."

The American Bar Association says having the resources to afford quality
defense counsel is the single most important factor in proving innocence.

The ABA is neutral on the constitutionality or the appropriateness of the
death penalty.

The Association has just completed a four year, eight state study of death
penalty systems.

Former ABA President Michael Greco says based on that research defendants
don¹t often get good lawyers.

"Our findings taken as a whole, establish that deplorable death penalty
representation is pervasive throughout the states. Not just the eight we
have reviewed. Extrapolating to the other states, we can conclude that the
administration of the death penalty in the US is shameful."

Attorneys here tend to agree; nationally capital defendants aren¹t getting
great representation.

That¹s because states and counties don¹t often pay attorneys very much.

So often, defendants get lawyers with little experience, time, competence,
or some combination of the three.

Like most people facing capital charges, Michael Addison relies on whomever
the court appoints to represent him.

But every New Hampshire lawyer interviewed for this story agrees the state¹s
system to provide quality counsel is well above average.

Former state and federal prosecutor, Manchester attorney John Kacavas says
even though he didn¹t have a choice in who represents him, Michael Addison
should feel very lucky.

"I know each of his lawyers well. I have tried cases against them, with them
they are the best of the best in the public defender¹s office."

Praise for the New Hampshire Public Defender lawyers comes from all corners.

Even if the lawyers are experienced and paid fairly that doesn¹t mean all is
equal when comparing the Brooks defense team to the Addison team.

Not only can millionaire John Brook- who sold his company for 140 million
dollars- hire the best lawyers money can buy, but he can also retain the
best experts and investigators around.

Addison on the other hand, is at the mercy of the court.

Whenever Addison¹s lawyers want to hire a psychiatrist or DNA expert they
must get the money from the judge.

Former Public Defender Andy Schulman says
says, hypothetically, if Brooks¹ lawyers don¹t like an expert for any
reason, Brooks could just cut another check.

"...just like if you had a medical condition and you wanted to get a second
opinion from a different doctor. Well in the indigent world....you have to
go back before that same judge and explain why that expert wasn¹t good
enough. And since this is a system where you get your needs but not your
wants you may have a low probability of getting that second expert."

Former state assistant Attorney General John Kissinger agrees it¹s more
difficult to operate under a budget like Addison¹s lawyers must.

But he says it¹s a leap to suggest Addison won¹t be able to mount a strong
defense.

"What we owe Michael Addison...is a fair trial and effective representation.
That doesn¹t mean everyone gets the OJ defense team if they want."

At this point there is nothing to indicate Michael Addison¹s lawyers¹
requests for funds have been denied.

Attorney John Kacavas says turning down any request in the case would be a
silly move.

"It would be foolhardy for the state of NH to subject this young man to a
capital trial and not give his defense team every resource they could
possibly require that isn¹t frivolous. Ultimately these verdicts are
difficult to uphold on appeal. It would be a fool¹s errand for the state to
be pennywise and pound foolish."

But beyond the issue of resources, race is still an issue.

On the national level there are dozens of reports showing racial bias in
capital cases.

The statistic most often cited is that jury¹s are 3-5 times more likely to
give the death penalty if the victim of the crime is white.

In both the Brooks and Addison cases, the victims are white.

But John Holdridge of the American Civil Liberties Union says odds only go
up when the crime involves a black person killing a white person.

"Statistically, that racial configuration is more likely to result in a
death sentence. Far more likely. We don¹t know about NH, b/c nobody has
gotten the death penalty for years. But I can tell you there was a study in
CT, that found racial bias, study in PA that found racial bias, these are
the states that are closest to you."

"It¹s very tempting to characterize a trial in a particular way. Black guy
kills white cop. Rich white guy hires other people. I object to that."

Again, Manchester attorney John Kacavas.

"Juries do their jobs. It¹s been my experience that juries take their
responsibilities very seriously...

And that means following the courts
instructions they should not be motivated by fear, sympathy, race."

Attorney John Kissinger says it¹s too easy to look at the cases in black and
white.

At the end of the day, he says he expects the two juries to scrutinize the
facts.

"There is a lot of evidence that Mr. Brooks engaged with others in planning
and premeditation setting up the murder. My understanding with Addison case
in contrast is there isn¹t any evidence of that kind of planning and
premeditation. It¹s more of a spur of the moment thing. And I think that
that is a big difference between the two cases."

Barbara Keshin finds the differences of race and money compelling.

And when you factor in the social class differences the former prosecutor
and public defender says there is no doubt Michael Addison is far more
likely to get the death penalty than John Brooks.

"When I was a trial lawyer I had this theory the gestalt of trial work. You
would see a defendant there. and the jury would see the defendant
there....And how those people appear to them I think makes a huge difference
on how juries view that case."

"I think jurors looking at Mr. Brooks will see someone that looks like them,
has a background a little like them, if not better than them...And with Mr.
Addison and they see someone who looks very different than them, has very
different experiences than them...his family from what I¹ve seen look like
nice people, but not look like the jurors. They are black, different class,
come from MA."

While there are clearly differences between the two cases, lawyers say
Brooks and Addison do have two things in common.

Each has counsel who¹ve argued death penalty cases -- the Attorney General¹s
Office doesn¹t. And each will be judged by jurors from a state that hasn¹t
put anyone to death in nearly 70 years.

For NHPR News, I¹m DG.

Medellín Case Has Huge Implications Abroad

Medellín Case Has Huge Implications Abroad
April 9, 2008; Page A13

Your March 26 editorial "International Law, and Domestic Order," correctly recognizes that the importance of the recent Supreme Court decision in Medellín v. Texas is not related to the death penalty, but instead on the relationship between U.S. law and international law. However, far from being a "modest and limited ruling," Medellín represents a significant departure from established precedent, which will have far-reaching consequences both for the image of the U.S. as a country that keeps its promises to abide by international law, and for the ability of American businesses to operate abroad.

The supremacy clause of the Constitution states "all Treaties. . . which shall be made. . . under the Authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby." (Art. VI, cl. 2). The Court's decision acknowledges that "a decision [of the International Court of Justice] that flows from the treaties for which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes -- constitutes an international law obligation on the part of the U.S." Nevertheless, Chief Justice John Roberts, writing for the court, concludes that the international court's decision is not binding because, while the U.S. agreed to submit the dispute to the ICJ, it did not agree to be bound by the ICJ's decision. With all respect to the Court, this is an absurd distinction; a party, even the U.S., cannot agree to litigate a matter before a tribunal and then disregard a result that it does not like.

President Bush issued a memorandum that the U.S. would fulfill its obligations under the ICJ ruling "by having state courts give effect to the decision." However, after the Texas courts refused to grant the convicted criminal a new hearing in accordance with the international ruling, the Court, in Medellín, also held that even presidential power was insufficient to pre-empt state law.

As Justice Stephen Breyer pointed out in his dissent, the U.S.'s obligations to submit disputes under the Vienna Convention are similar to its obligations under many treaties, including economic cooperation agreements, commerce and navigation treaties, and copyright conventions. The Court, for the first time, and contrary to well-established precedent, has now stated that U.S. obligations under those agreements will not be enforced in the U.S. This sends a strong message that we consider ourselves above the rule of international law.

Of perhaps greater importance: If the obligations of U.S. companies under international law will not be enforced here, these companies will be adversely affected because the host countries and local businesses will not be able to rely upon the commitments that the U.S. has negotiated pursuant to treaties. Countries like China, which are not democratic and do not have a tradition of an independent judiciary, have had to attempt to develop court systems. Let's hope U.S. interests can be treated fairly.

If the U.S., with its proud traditions of accepting the rule of law, wants to have the rights of its citizens respected abroad, it must begin by acknowledging the mandates of international law.

Peter Henner
Clarksville, N.Y.

Kentucky Lethal Injection Procedure Released

Kentucky Lethal Injection Procedure Released

The redacted procedure, in Adobe .pdf format is here. The state's justification for secrecy is here.

The Louisville Courier-Journal reports, "Kentucky releases rules for executions."

Kentucky's once secret protocol for executing inmates by lethal injection describes in chilling detail what to do if an execution goes bad, and even spells out measures to revive the condemned if there is a last-minute stay.

If an inmate doesn't "flatline" within 10 minutes after being given a three-drug cocktail, the protocol demands that the same drugs should be given again.

"This process will continue until death has occurred," says the protocol, a portion of which the U.S. Supreme Court ordered released this week.

The order came as the court considers whether Kentucky's method of lethal injection -- similar to that used in 35 other states -- is constitutional.

The Kentucky Corrections Department had refused to release its 29-step protocol, citing security concerns. And the document released this week omits some details, including the time of executions, for example.

State Justice Cabinet spokeswomen Jennifer Brislin said making that public could cause executions to be disrupted.

The Supreme Court is expected to decide by June whether the procedures used by Kentucky and the other states violate the Eighth Amendment's ban on cruel and unusual punishment. The appeal was brought by condemned Kentucky inmates Ralph Baze and Thomas Clyde Bowling Jr.

The 16 pages of the protocol released Wednesday mandate that the execution team practice 10 times a year, and that each practice include a walk-through of an execution, including placing intravenous lines into a human volunteer.

The protocol also says that:

If the team cannot secure one or more IV lines into the condemned inmate in one hour, the corrections commission shall notify the governor and request that the execution be rescheduled.

If the condemned isn't unconscious within 60 seconds after delivery of the first drug, sodium thiopental, the warden should order that a new flow be started in a backup IV.

"State's protocols on execution are ordered released," is the headline in the Lexington Herald-Leader.

A step-by-step look at how Kentucky lethally injects Death Row inmates is now public after the U.S. Supreme Court ordered the partial release of the state's execution protocols.

The order was made Wednesday in a case brought by Death Row inmates Ralph Baze and Thomas C. Bowling, challenging the constitutionality of Kentucky's lethal injection procedures.

For years, the state Department of Corrections had fought to keep the protocols a secret, citing security risks. The protocols are similar to those used in 35 other states.

The 16-page protocols, with some information redacted, contain several details that had not been revealed during Bowling's and Baze's lengthy appeals and their oral arguments before the U.S. Supreme Court in January. Death penalty opponents said the protocols are vague and provide little guidance in the event something goes wrong.

"It starkly presents the question, 'Is this the right way to deal with human beings, even those we've decided need to be executed?'" said Richard Dieter, executive director of the Death Penalty Information Center, a Washington non-profit organization that monitors capital punishment issues.

A Department of Corrections spokeswoman declined to comment on the protocols.

And:

The standard lethal injection protocol was concocted in 1977 in Oklahoma. Only one Kentucky inmate, Eddie Lee Harper in 1999, has been executed under the procedure.

Kentucky's protocols are substantially similar to the other states with lethal injection. That's what makes the Baze case nationally significant, Dieter said.

Substantial portions of the protocol still have not been released, Barron said. Much of the redacted material in what has been released concerns the time of the execution and the specific people who carry out the execution.

The protocols outline how the inmate is to be monitored leading up to the execution, the schedule of who the prisoner can see, and who is allowed to watch the execution.

Once the inmate is restrained, the curtain is opened for observers, and a deputy warden announces they will proceed with the execution.

A team member monitors the electronic heart readings as the drugs are administered. When the heart stops, the curtains close and a doctor and coroner check to see whether the inmate is dead.

The curtain opens and the warden says what time the inmate was pronounced dead.

Then the curtains are closed.

The Huntington (WV) Herald-Dispatch carries an AP filing, "High court releases part of Ky. lethal injection protocol."

The protocol was released publicly after an order from the U.S. Supreme Court, which is considering whether the method is constitutional. Kentucky’s lethal injection protocol is similar to that used in 35 other states.

Part of the protocol dealing with inmates had been kept secret until Wednesday. Justices heard arguments in January about whether the protocol passes constitutional muster and are expected to rule by June.

Kentucky death row inmates Ralph Stevens Baze and Thomas Clyde Bowling Jr. challenged the protocol in 2004. The Kentucky Supreme Court upheld the method, prompting the two inmates to ask the U.S. Supreme Court to hear the case. The inmates claim that lethal injection as practiced by the state amounts to cruel and unusual punishment, in violation of the Eighth Amendment.

The lethal injection index is here. Coverage of the Baze v. Rees oral argument is here and here.

Suspend death penalty, decriminalize misdemeanors

2 SUGGESTIONS FOR FLORIDA COURTS TO REDUCE COSTS

http://www.orlandosentinel.com/news/opinion/letters/orl-myword11b08apr11,0,5383492.story

Robert Wesley

April 11, 2008

News of the past few weeks includes reports of budget cuts for hospitals, nursing homes and schools. And because of budget shortfalls, the Florida Legislature has mandated similar drastic cuts for the justice system.

It is easy to run a state office when the budget is adequate and you are not required to innovate, but changing conditions make a government manager reassess. We must consider options to help us stay within the reduced budget. My proposals include decriminalizing most misdemeanors so most proceedings don't require a lawyer in simple cases and ensuring that only truly indigent people benefit from public-defender services. That means strict adherence to the criteria for assigning lawyers to the needy. We must also consider a moratorium on the death penalty.

Tough times call for tough decisions. A tough decision that could help us weather these difficult financial times would be the suspension of the death penalty. Prosecuting and defending capital cases is much too expensive in this era of deep budget cuts.

Florida law provides only two options for a person convicted of a capital case: the death penalty or life in prison without the possibility of parole. Either alternative demands that the offender die in prison. And all studies show that the death penalty is more expensive than life in prison due to its cumbersome procedural requirements.

The U.S. Supreme Court has upheld very specific steps that need to be conducted in capital cases. Our Constitution mandates that there are no shortcuts in the capital-punishment procedure. Because of this, death-penalty cases are difficult and expensive to prepare. Enormous time and resources go into the preparation of a capital case; three-quarters of that goes toward the penalty phase, the trial portion where the jury decides whether a convicted murderer should die or spend the rest of his life in prison. Despite the fact that the death penalty is imposed for a small fraction of offenses, we are required to do the costly and time-consuming preparation in many cases in which death ultimately is not the punishment.

Consider that lawyers prepare many cases as if they were going to the penalty phase, only to obtain a legal determination that death is not applicable or to have the prosecution waive the death penalty in that case. In these cases, in which the life or death decision is never presented to the jury, enormous resources are truly wasted. We could save millions of dollars annually if we did away with the death penalty, relying solely on life in prison without the possibility of parole.

Last year the New Jersey Legislature abolished the death penalty in that state because it cost less to incarcerate a prisoner for life rather than pursue the death penalty. Now is the time for Florida to take a hard look at whether we can afford death-penalty prosecutions when we don't have the funds to prepare for those cases as required by our Constitution.




Robert Wesley is the public defender for the Ninth Judicial Circuit, which covers Orange and Osceola counties.

Kentucky DOC justification for secrecy

http://www.floridasupport.us/Baze/DOC_justification_for_keeping_protocol_portion_under_seal.source.prod_affiliate.79.pdf

Kentucky releases rules for executions----Supreme Court orders Kentucky to release policy

http://www.floridasupport.us/Baze/Baze_v__Rees_JA_Vol__IV_redacted_version_filed_with_SCOTUS.source.prod_affiliate.79.pdf

Kentucky releases rules for executions----Supreme Court orders Kentucky to
release policy


Kentucky's once secret protocol for executing inmates by lethal injection
describes in chilling detail what to do if an execution goes bad, and even
spells out measures to revive the condemned if there is a last-minute
stay.

If an inmate doesn't "flatline" within 10 minutes after being given a
3-drug cocktail, the protocol demands that the same drugs should be given
again.

"This process will continue until death has occurred," says the protocol,
a portion of which the U.S. Supreme Court ordered released this week.

The order came as the court considers whether Kentucky's method of lethal
injection -- similar to that used in 35 other states -- is constitutional.

The Kentucky Corrections Department had refused to release its 29-step
protocol, citing security concerns. And the document released this week
omits some details, including the time of executions, for example.

State Justice Cabinet spokeswomen Jennifer Brislin said making that public
could cause executions to be disrupted.

The Supreme Court is expected to decide by June whether the procedures
used by Kentucky and the other states violate the Eighth Amendment's ban
on cruel and unusual punishment. The appeal was brought by condemned
Kentucky inmates Ralph Baze and Thomas Clyde Bowling Jr.

The 16 pages of the protocol released Wednesday mandate that the execution
team practice 10 times a year, and that each practice include a
walk-through of an execution, including placing intravenous lines into a
human volunteer.

The protocol also says that:

If the team cannot secure 1 or more IV lines into the condemned inmate in
one hour, the corrections commission shall notify the governor and request
that the execution be rescheduled.

If the condemned isn't unconscious within 60 seconds after delivery of the
1st drug, sodium thiopental, the warden should order that a new flow be
started in a backup IV.

If the inmate doesn't "flatline" within 10 minutes after all 3 drugs are
given, the warden shall order a 2nd round.

Objections to procedure

Lawyers for Baze and Bowling contend the procedure offers no guarantees
that the chemicals will work properly or that the condemned inmate won't
suffer excruciating pain.

"It is woefully deficient," said their lead counsel, David Barron, an
assistant public advocate.

The Rev. Pat Delahanty, chairman of the Kentucky Coalition to Abolish the
Death Penalty, questioned whether a warden is capable of determining
whether an inmate is unconscious.

"That seems to me to be a serious flaw that could lead to pain and
suffering," he said.

Delahanty also asked, "If the intention of lethal injection is to be
humane, why would there ever be 2nd round" of the drugs administered?

Brislin said the Justice Cabinet had no comment on the protocol itself,
but its lawyers have maintained that if the 1st drug is properly
administered there will be a painless death.

The protocol offers detailed instruction on every aspect of the procedure,
from the maximum duration of the condemned's final statement (2 minutes),
to when the curtain on the chamber window should be opened and shut, to
the order in which witnesses shall be escorted away after watching the
execution (first media, then inmate witnesses, then the victim's
witnesses.)

The protocol sets out procedures starting 2 weeks before the execution.

Nurses are required to check the inmate on every shift, and a doctor must
do so daily. The inmate also must be given a physical exam and a
psychiatric examination no later than 7 days before the execution, and the
warden must be informed of any changes in his condition.

Inmates are limited to four visitors at a time, and pastors and the media
may only visit on weekdays.

Members of the execution team may be a certified medical assistant, a
paramedic, an EMT, a phlebotomist or a military corpsman, and each must
have practiced at least twice.

Steps in execution

The execution starts with an "IV Team" inserting a main line and a backup,
with the "insertion site of preference in the following order: arms,
hands, ankles and or feet/neck."

After the lines are inserted, the leader is to recheck all restraints,
determine they are secure and advise the warden.

The warden, after checking one last time with the attorneys, is to turn on
the microphone, announce the condemned's name, and allow him to speak.

When the warden orders the execution to proceed, a designated team member
will begin "a rapid flow of lethal chemicals."

If all goes as planned, the coroner and physician will confirm death by
checking the condemned's pulse and pupils and so advise the warden, who
will state, "At approximately ---- p.m., the execution of ---- was carried
out in accordance with the laws of the commonwealth of Kentucky."

In the event a stay is issued after the execution has started, the warden
will have an ambulance, a medical crash cart and defibrillator standing
by, and medical staff will attempt to "stabilize the condemned," the
protocol says.

The procedure was sealed at the Corrections Department's request when the
case was tried in Franklin Circuit Court in 2005, and it was filed under
seal last year with the U.S. Supreme Court.

In arguing to keep it sealed, Barron said, the department cited a state
law that allows the commissioner to keep records confidential if their
release might endanger a corrections officer or inmate.

As an example of the potential danger, Barron said, the department told
the Supreme Court that former Gov. Ernie Fletcher was confronted in 2004
by Bowling's mother while walking his dog in Frankfort.

But Barron said the report was exaggerated and falsely implied that the
governor had been stalked. Barron said Bowling's lawyers brought her to
talk to the governor when he came out to talk to the media during a
demonstration against the death penalty.

Brislin said the Justice Cabinet had no comment.

Baze was convicted of fatally shooting Powell County Sheriff Steve Bennett
and Deputy Arthur Briscoe in 1992 as they attempted to arrest him.

Bowling was convicted of killing Edward and Tina Earley of Lexington and
wounding their 2-year-old son in 1990.

****

KY Lethal Injection Protocol

Actions


Notify Department of Corrections of receipt of Governor's Death Warrant
(immediately).

Begin a special section of condemned's medical record for all medical
actions (X-14 days).

Nurse visits and checks on the condemned each shift, 7 days a week, using
the special medical section to record contacts and observations (X-14
days).

(Redacted) personally observes and evaluates the condemned five (5) days
per week, Monday through Friday (X-14 days).

Place the (redacted)'s documentation in the permanent record immediately
after personal contact. Department of Corrections (redacted) or his
designee reviews and initials nursing documentation in #3 daily (X-14
days).

(Redacted) reviews nursing and doctors documentation weekly.

Physical examination is completed by the (redacted) or his designee no
later than seven (7) days prior to execution.

Place the physical in the permanent medical record upon completion.

(Redacted)'s evaluation is completed by (redacted) no later than seven (7)
days prior to execution. Place the psychiatric evaluation in the permanent
medical record and send copies to the Warden. (Redacted) or his designee
personally observes and evaluates the condemneds medical condition weekly.

Place the (redacted) or his designee notes in the permanent record
immediately after personal contact.

Notify all medical staff to immediately notify the Warden, (redacted) or
designee and (redacted) of any change in the inmates medical or
psychiatric condition.

Sequence of Events

At (redacted), the Warden orders the condemned escorted to the execution
chamber and strapped to the gurney.

The IV team members will be the members of the execution team who site and
insert the IV lines.

The team enters the chamber and runs the IV lines to the condemned inmate,
site and insert one (1) primary IV line and one (1) backup IV line in a
location deemed suitable by the team members.

The insertion site of preference shall by the following order: arms,
hands, ankles and/or feet, neck. To best assure that a needle is inserted
properly into a vein, the IV team members should look for the presence of
blood in the valve of the sited needle.

If the IV team cannot secure one (1) or more sites within one (1) hour,
the Governor's Office shall be contacted by the Commissioner and a request
shall be made that the execution be scheduled for a later date.

The team will start a saline flow.

The team will securely connect the electrodes of the cardiac monitor to
the inmate and ensure the equipment is functioning.

The team will then move to the hallway and stand by.

The team leader will recheck all restraints and determine they are secure
and so advise the Warden.

The Warden will confirm that all is ready.

The Warden will make one final check with the attorneys stationed outside
the chamber.

The Deputy Warden will open the curtain and turn on the microphone.

The Warden states, "At this time we will carry out the legal execution of
(condemned's name)."

The Warden asks the condemned if he wants to make a final statement (two
(2) minutes allowed). Upon the Warden's order to "proceed" and the
microphone turned off, a designated team member will begin a rapid flow of
lethal chemicals in the following order:

1)Sodium Thiopental (3gm). NOTE: If it appears to the Warden that the
condemned is not unconscious within 60 seconds to his command to
"proceed," the Warden shall stop the flow of Sodium Thiopental in the
primary site an order that the backup IV be used with a new flow of Sodium
Thiopental.

2)Saline (25 mg).

3)Pancuronium Bromide (50 mg).

4)Saline (25 mg).

5)Potassium Chloride (240 meq).

A designated team member will begin a stopwatch once the lethal injections
are complete. If the heart monitor does not indicate a flat line after ten
(10) minutes and if during that time the physician and coroner are not
able to pronounce death, the Warden will order a second set of lethal
chemicals to be administered (Sodium Thiopental, Pancuronium Bormide
(sic), and Potassium Chloride). This process will continue until death has
occurred.

A designated team member will observe the heart monitor and advise the
physician of cessation of electrical activity of the heart.

The curtain shall be drawn when the Physician and coroner enter the
chamber and confirm death by checking the condemned's pulse and pupils and
so advise the Warden.

The will then be opened. The Warden turns on the microphone and states:
"At approximately ___ p.m. the execution of _______ was carried out in
accordance with the laws of the Commonwealth of Kentucky".

The microphone is turned off and the curtains will be drawn.

The witnesses are escorted out of the witness room, first the media,
inmate's witnesses, and then the victim's witnesses.

The team will prepare the body for departure.

Release body per prior arrangements.

Funeral director completes death certificate.

Not more than one (1) day after the execution, the Warden shall return the
copy of the judgment of the court pronouncing the death sentence, of the
manner, time and place of its execution.

Close out inmate account during next business day.

Contact individual designated to receive condemned's personal property for
pick up of property the next business day.

Compile all documents pertaining to Execution and place in inmate file.

Execution Team Qualifications

1)The following people with at least 1 year of professional experience may
be on the IV team:

a)Certified Medical Assistant, or

b)Phlebotomist, or c)Emergency Medical Technician, or

d)Paramedic, or

e)Military Corpsman

2)Prior to participating in an actual execution, the member of the IV team
must have participated in a least two (2) practices.

3)Members of the IV team must remain certified in their profession and
must fulfill any continuing education requirements in their profession.

4)The execution team shall practice at least ten (10) times during the
course of one (1) calendar year. 5)Each practice shall include a complete
walk through of an execution including the siting of two (2) IVs into a
volunteer.

6)Execution team members, excluding the IV team members, must have
participated in a minimum of two (2) practices prior to participating in
an actual execution.

Stabilization Procedure After The Execution Has Commenced

1)In the event that a stay is issued after the execution has commenced,
the execution team will stand down and medical staff on site will attempt
to stabilize the condemned with the below listed equipment and personnel.

a)The Warden will arrange for an ambulance and staff to be present on
institutional property.

b)A medical crash cart and defibrillator shall be located in the execution
building.

(source: Louisville Courier-Journal)