The stay order on Callahan, Alabama December 14,2007

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

WILLIE MCNAIR, )

)

Plaintiff/Counter-Defendant, )

)

v. ) Case No. 2:06-cv-695-WKW

)

RICHARD ALLEN, et al., ))

Defendants/Counter-Plaintiffs. )

___________________________________

)

JAMES CALLAHAN, ))

Plaintiff/Counter-Defendant, )

)

v. ) Case No. 2:06-cv-919-WKW

)

RICHARD ALLEN, et al., ))

Defendants/Counter-Plaintiffs. )

MEMORANDUM OPINION AND ORDER

Before the court is Plaintiff James Callahan’s Motion for Stay of Execution (Doc.

# 147). The motion was precipitated by the Alabama Supreme Court’s October 31, 2007

order setting Callahan’s execution date. If the motion is not granted, Callahan will be

executed by the State of Alabama on January 31, 2008. For the reasons stated herein, the

motion is due to be granted.

I. PROCEDURAL HISTORY

Although the November 16, 2007 opinion (Doc. # 146) outlines the procedural history

of this case, some of the relevant dates are highlighted here. The trial in this matter was

Case 2:06-cv-00695-WKW-CSC Document 154 Filed 12/14/2007 Page 1 of 10

1 The questions presented in Baze include the correct standard by which the constitutionality of

methods of execution should be adjudged and whether Kentucky’s three-drug protocol, which is similar

to Alabama’s lethal injection protocol at issue here, violates that standard.

2

scheduled to begin on October 3, 2007. Eight days before the trial date, on September 25,

2007, defense counsel announced that the defendants would be making changes to the State’s

execution protocol - the constitutionality of which comprises the subject matter of this

litigation. On the same date, the United States Supreme Court granted certiorari in the Baze

case. Baze v. Rees, __ U.S.__, 128 S. Ct. 34 (2007).1 On September 27, 2007, Governor Bob

Riley granted a forty-five day reprieve to another condemned prisoner “to allow the Alabama

Department of Corrections sufficient time to make modifications to its lethal injection

protocol.” (Doc. # 124-2.)

The parties were ready for trial, but on September 28, 2007, the court was compelled

to continue the case. (Doc. # 130.) A new trial date was tentatively set because it was not

known when the State would complete the modification to its protocol, whether the plaintiffs

would agree that the modification alleviated any constitutional violation, and, frankly, what

effect the grant of certiorari in Baze would or should have on pending challenges to lethal

injection.

On October 26, 2007, the defendants filed a revised lethal injection protocol. Five

days later, on October 31, 2007, the Alabama Supreme Court set Callahan’s execution date

for January 31, 2008. After holding a status conference with the parties, the trial was

continued generally in anticipation of additional limited discovery and the filing of the instant

Case 2:06-cv-00695-WKW-CSC Document 154 Filed 12/14/2007 Page 2 of 10

The Eleventh Cir 2 cuit has adopted all prior decisions of the former Fifth Circuit handed down

prior to the close of business on September 30, 1981, as binding precedent. Bonner v. City of Prichard,

661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

3

motion. The motion is fully briefed and ripe for adjudication.

II. LEGAL STANDARD

The grant or denial of a stay or preliminary injunction is within the discretion of the

district court. Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567 (5th Cir. 1974).2 In

deciding whether to grant a stay of execution, courts analyze the familiar four factors

involved in injunctive relief consideration:

(1) whether there is a substantial likelihood of success on the merits; (2)

whether the requested action is necessary to prevent irreparable injury; (3)

whether the threatened injury outweighs the harm the stay or injunction would

inflict upon the non-movant; and (4) whether the requested action would serve

the public interest.

Rutherford v. McDonough, 466 F.3d 970, 979 (11th Cir. 2006) (Rutherford II) (Wilson, J.,

dissenting); see also Hill v. McDonough, __ U.S. __, 126 S. Ct. 2096, 2104 (2006) (“[L]ike

other stay applications, inmates seeking time to challenge the manner in which the State

plans to execute them must satisfy all of the requirements for a stay, including a showing of

a significant possibility of success on the merits.”); Fed. R. Civ. P. 65. In evaluating the

harm that a stay would inflict upon the defendants, courts must consider whether the plaintiff

unnecessarily delayed in bringing the claim. See Nelson v. Campbell, 541 U.S. 637, 649-50

(2006). The movant must clearly carry the burden of persuasion in order for the court to

apply the remedy. See Hill, 126 S. Ct. at 2104; Callaway, 489 F.2d at 573.

Case 2:06-cv-00695-WKW-CSC Document 154 Filed 12/14/2007 Page 3 of 10

3 Thus, the strong equitable presumption against a stay does not come into play here where the

claim was brought with sufficient time to allow consideration of the merits without requiring the entry of

a stay. Cf. Nelson, 541 U.S. at 650.

4 Schwab v. Sec’y, Dep’t of Corrections, __ F.3d __, No. 07-15329, 2007 WL 3375242 (11th

Cir. Nov. 15, 2007).

4

III. ANALYSIS

This case is unusual in the stay-of-execution context. It has been pending for over a

year, and the court has determined that the plaintiffs did not unreasonably delay in bringing

suit.3 (Doc. # 146, at 8.) The court and the parties were ready for the trial that was scheduled

to begin on October 3, 2007. Callahan has only recently received an execution date;

McNair’s execution date has not been set. A stay of execution is an “extraordinary and

drastic remedy,” but its “primary justification . . . is to preserve the court’s ability to render

a meaningful decision on the merits.” Callaway, 489 F.2d at 573. Indeed, in timely-filed

challenges to the lethal injection protocol, it has been this court’s primary concern that

resolution of questions of such moral magnitude proceed in a deliberate and orderly fashion

in order to reach a meaningful decision on the merits. The higher courts have cautioned

against allowing speculative and untimely method-of-execution suits; however, this one is

neither speculative nor untimely.

Callahan urges the court to follow the United States Supreme Court’s lead in staying

the case pending the opinion in Baze, whereas the defendants insist that the Eleventh

Circuit’s Schwab opinion4 requires the court to ignore the implications and aftermath of the

Supreme Court’s grant of certiorari in Baze. The grant of certiorari does not mandate a stay

Case 2:06-cv-00695-WKW-CSC Document 154 Filed 12/14/2007 Page 4 of 10

This is particularly true where this case is distinguishable 5 from Schwab. Callahan’s motion is

not an emergency filing; Callahan has not had the benefit of extensive state court hearings establishing a

factual record; Callahan did not wait until two days before his execution to file his case; Callahan’s claim

is not barred by laches; and the Alabama protocol is different than Florida’s in several material respects.

Even if the facts of this case were more similar to those in Schwab, the Eleventh Circuit vacated

the stay of execution entered by the trial court in Schwab because it was “simply wrong” to grant a stay

solely on the basis of the grant of certiorari in Baze. Schwab, 2007 WL 3375242, at *1. In the instant

case, a stay of execution is warranted because Callahan has carried his burden of persuasion on the

motion for a stay. It does not go unnoticed, though, that the Supreme Court granted stays of execution to

Schwab and, more recently, to Thomas Arthur, pending decisions on those petitions for writ of

certiorari. See Arthur v. Allen, __ U.S. __, No. 07-395, 2007 WL 4248619 (Dec. 5, 2007) (mem.);

Schwab v. Florida, __ U.S. __, No. 07A383, 2007 WL 3380059 (Nov. 15, 2007) (mem.).

5

in similar cases and “does not suggest a view on the merits,” Schwab, 2007 WL 3375242,

at *1, *3, but neither does Schwab require a denial of stay of execution.5 The Eleventh

Circuit did not venture a guess at the Supreme Court’s motivation for staying Baze-type

cases, id. at *3, but the Supreme Court’s motivation may have something to do with

protecting the status quo until it can render meaningful decisions on the merits of those cases.

At bottom, any decision on the merits made by this court - whether it be a pre-trial

assessment of the likelihood of success on the merits or the ultimate ruling after full trial -

may not be meaningful without the benefit of the Supreme Court’s ruling in Baze.

Nevertheless, the court is charged with assessing the likelihood of success on the merits, and

this it will do.

A. Likelihood of Success on the Merits

Assessing the likelihood of success on the merits is problematic in light of the current

national debate in the courts over a standard by which the constitutionality of three-drug

protocols should be adjudged. The parties are at odds with the respect to the proper standard.

Case 2:06-cv-00695-WKW-CSC Document 154 Filed 12/14/2007 Page 5 of 10

6 By stating there is a “substantial likelihood,” the court also means there is a “significant

possibility” of success on the merits. Although the requirement of “likelihood” of success on the merits

has been cast in terms of “substantial likelihood” and “significant possibility,” the Eleventh Circuit has

recognized that such qualifiers do not alter the quantum of proof necessary to satisfy this requirement.

See Shatel Corp. v. Mao Ta Lumber & Yacht Corp., 697 F.2d 1352, 1356 n.2 (11th Cir. 1983).

Moreover, “significant possibility” is a relatively new phrase that the United States Supreme Court used

in Hill - but in a different context; by citing to Barefoot v. Estelle, 463 U.S. 880, 895-896 (1983), the

Court made clear that it was setting the standard for a stay of execution pending the filing and

consideration of a petition for a writ of certiorari from the Supreme Court to the Courts of Appeal. See

Hill, 126 S. Ct. at 2104.

6

Callahan argues that the applicable standard in a method-of-execution challenge is a purely

objective one. Defendants argue that the plaintiffs must show proof of a sufficiently culpable

state of mind. There is no clear precedent, but the standard is clearly at issue in Baze.

The court concludes that there is a substantial likelihood of success on the merits.6

Meeting the likelihood of success criterion necessarily involves stating a legitimate claim.

See Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1226 (11th Cir. 2005) (affirming

district court’s determination that plaintiffs could not establish a substantial likelihood of

success on the merits because they did not state a claim) (citing Grupo Mexicano de

Desarrollo v. Alliance Bond Fund, Inc., 527 U.S. 308, 339 (1990) (“Plaintiffs with

questionable claims would not meet the likelihood of success criterion.”)). The parties do

not debate the amount of proof necessary to satisfy this requirement, and it is clear that “the

district court need not find that the evidence positively guarantees a final verdict in plaintiff’s

favor.” Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995).

The finding of a likelihood of success on the merits is partially grounded in the claim’s

Case 2:06-cv-00695-WKW-CSC Document 154 Filed 12/14/2007 Page 6 of 10

In its 7 memorandum opinion and order dated November 16, 2007, the court denied the

defendants’ motion for summary judgment because “several issues of material fact are disputed” and

“this case presents vitally important issues that may hinge on the credibility of witnesses such that, even

if there were no factual disputes, the better course of action would be to proceed to a full trial.” (Doc.

# 146.)

8 Schwab, 2007 WL 3375242, at *2 (“The evidence that . . . Schwab rel[ies] on does not show

that those procedures, protocols, and drugs pose an unnecessary risk of pain.”).

7

survival of summary judgment.7 While the existence of genuine issues of material fact does

not guarantee ultimate success on the merits and the amount of contested evidence required

to reach the likelihood of success threshold cannot be readily quantified, surviving summary

judgment is confirmation that there is indeed a likelihood of success on the merits and that

Callahan’s claims are not merely questionable.

Other courts have employed a wide range of standards in evaluating the

constitutionality of lethal injection protocols. If the court were to apply the most restrictive

of those standards, Callahan would have difficulty demonstrating a substantial likelihood of

success on the merits. The application of other less restrictive standards, however, would

likely result in a finding that one or more aspects of the Alabama protocol are

unconstitutional (yet reparable). The court need not default to the most restrictive standard

where a substantial likelihood of success on the merits exists under some reasonable

standard. Under the “unnecessary risk of pain” standard referred to, but not analyzed or

expressly adopted, in Schwab,8 there is a substantial likelihood of success on the merits.

There is substantial but disputed evidence that Alabama’s protocol contains constitutional

deficiencies in the monitoring of the procedure, the training of certain participants, and the

Case 2:06-cv-00695-WKW-CSC Document 154 Filed 12/14/2007 Page 7 of 10

From a careful 9 review of the evidence submitted at the summary judgment stage, including the

depositions of those involved in Alabama executions, the issues associated with the second and third

drugs administered per the protocol, i.e., pancuronium bromide (Pavulon) and potassium chloride, have

risen to constitutional proportions. It is evident that the current nationwide challenge to the three-drug

protocol is derived wholly from the use of these two drugs. Absent the use of Pavulon and potassium

chloride, Callahan may not have been able to demonstrate a substantial likelihood of success on the

merits under any standard. A one-drug protocol has been the subject of much debate and is a key

consideration in the assessment of the constitutionality of Alabama’s existing protocol.

10 See Harbison v. Little, 511 F. Supp. 2d 872 (M.D. Tenn. 2007) (holding that Tennessee’s

lethal injection protocol violated Eighth Amendment); Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal.

2006) (holding that California’s protocol, as implemented, resulted in an Eighth Amendment violation).

11 See Lightbourne v. McCollum, __So. 2d __, No. SC06-2391, 2007 WL 3196533, at *23 (Fla.

Nov. 1, 2007) (holding that Florida’s lethal injection procedures, as actually administered, are not

constitutionally defective); Schwab v. State, __ So. 2d __, No. SC07-1603, 2007 WL 3196523 (Fla.

Nov. 1, 2007) (rejecting the conclusion that lethal injection in Florida is unconstitutional, given the

analysis in Lightbourne).

8

use of potentially unconstitutionally painful drugs.9 The court will assess carefully the

evidence and credibility of the witnesses to resolve these and other salient issues.

Furthermore, it is notable that three-drug lethal injection protocols similar to

Alabama’s have been found to be unconstitutional by at least two other trial courts.10 Not so

dissimilarly, one of the protocols that survived constitutional review, Florida’s protocol at

issue in Schwab, did so after having been revamped as a result of public and scientific

comment, culminating in features not found in Alabama’s protocol.11 Of course, an

evaluation of the constitutionality of this protocol, its components, and its administration will

be fact-intensive, specific to Alabama, and has not yet been decided by any court. In light

of these circumstances, the court concludes that there is a substantial likelihood of success

on the merits under at least one reasonable standard.

Case 2:06-cv-00695-WKW-CSC Document 154 Filed 12/14/2007 Page 8 of 10

12 See Doc. # 146 (“The court cannot construe the State’s delay in setting execution dates as

prejudicial to the State’s own interest and then charge such delays against the plaintiffs. Delay at the

hands of the Alabama Supreme Court might indeed be construed as beneficial to the interests of the State

in allowing - for the first time - an orderly consideration of the lethal injection protocol.”). Moreover, the

setting of Callahan’s execution date at such a late date in this litigation could be construed as interference

with this court’s jurisdiction. Under the circumstances of this case, the All Writs Act, 28 U.S.C.

§ 1651(a), grants this court additional authority to stay the execution pending a trial on the merits.

9

B. Balancing the Harms

The remaining criteria of the stay analysis require the court to weigh the competing

harms. Because of the nature of the case, a possibility of success on the merits also points

to irreparable injury without a stay. That is, an unconstitutional execution would impair the

court’s ability to grant an effective remedy. Undoubtedly, the State has a strong interest in

the timely enforcement of a criminal sentence. Hill, 126 S. Ct. at 2104. However, the State

itself jeopardized the timely enforcement of the sentence by delaying for seven months its

request for Callahan’s execution date and another five months in setting it.12 Moreover, the

effect of a stay on the public interest cuts both ways - the public has an interest both in the

carrying out of death sentences in a constitutional manner and in the finality of criminal

judgments. But because the defendants would not claim a legitimate interest in an

unconstitutional execution, the public interest will be better served by a resolution of the

constitutional challenge. In balancing these harms, the court finds that threatened irreparable

injury to Callahan outweighs the harm a stay of execution would work on the defendants or

the public interest.

IV. CONCLUSION

Because, presumably, the United States Supreme Court will announce the proper

Case 2:06-cv-00695-WKW-CSC Document 154 Filed 12/14/2007 Page 9 of 10

13 A district court retains the inherent authority to manage its own docket. See Four Seasons

Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1172 n.7 (11th Cir. 2004).

10

standard or standards shortly, the court is reluctant to try this case on an assumed standard.

There is a significant likelihood that such action would be a waste of judicial resources and

those of the parties, would result in a retrial, and would further delay the enforcement of

Alabama’s criminal judgments.13 Any decision on the merits would be in doubt pending a

ruling in Baze. For this reason, and because Callahan has carried his burden of persuasion,

a stay must be granted in order for the court to reach a meaningful resolution of the issues.

Accordingly, it is ORDERED that Callahan’s Motion for Stay of Execution (Doc.

# 147) is GRANTED. Callahan’s execution date is hereby STAYED pending a trial on the

merits to be scheduled by further order of the court.

DONE this 14th day of December, 2007.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE

Case 2:06-cv-00695-WKW-CSC Document 154 Filed 12/14/2007 Page 10 of 10

Stay of Execution Lifted, Callahan Scheduled to Die Thursday

Stay of Execution Lifted, Callahan Scheduled to Die Thursday

http://www.wsfa.com/Global/story.asp?S=7796908

MONTGOMERY, Ala. (AP) - A federal appeals court has lifted a stay of execution for James Harvey Callahan, who is scheduled to be executed Thursday, but it could be delayed again by the U.S. Supreme Court.

The Supreme Court has agreed to hear oral arguments in a Kentucky challenge to lethal injection, a case that has delayed executions nationwide. Alabama uses lethal injection in its executions.

The Atlanta-based 11th U.S. Circuit Court of Appeals on Tuesday lifted the stay granted by U.S. District Judge Keith Watkins in Montgomery on Dec. 14.

Callahan, who is now scheduled to die at 6 p.m. Thursday at Holman prison near Atmore, was sentenced to death for the kidnapping, rape and murder of Jacksonville State University student Rebecca Suzanne Howell on Feb. 4, 1982.

Authorities said she was abducted from a coin laundry in Jacksonville and raped before being strangled and dumped in Tallasseehatchee Creek.

In his Dec. 14 order, Watkins wrote that the public interest would not be served by an unconstitutional execution, and Callahan's constitutional challenge should be resolved first. The judge said it would be "a waste of judicial resources" to hold a trial on Callahan's suit before the U.S. Supreme Court rules in the Kentucky case.

The state attorney general's office had opposed a stay, and the 11th Circuit lifted it, sending the issue to the Supreme Court.

On Dec. 5, the Supreme Court stopped the execution of another Alabama death row inmate, Tommy Arthur, one day before he was scheduled to die by lethal injection at Holman prison. That stay also stemmed from the pending Kentucky case.

The Lethal Injection Debate: Law and Science

The Lethal Injection Debate: Law and Science

The Fordham Urban Law Review is sponsoring the above-titled symposium March 7 and 8 at Fordham Law School in New York City. LINK

The symposium will address a broad range of issues concerning lethal injection. Some of these issues include: The purpose of punishment and whether lethal injection adequately serves that purpose; the role of doctors in executions; the relationship between state laws governing the euthanasia of animals and the current lethal injection protocols in those states; the role of the Eighth Amendment in addressing these issues; the impact of the recent lethal injection litigation on lawyers, judges, media and the public, and the impact of the litigation on the death penalty debate as a whole.

The complete list of participants is here; an all-star lineup of the most informed scholars and journalists on lethal injection, including Fordham's own Deborah Denno. Federal District Judge Jeremy Fogel, who is presiding over the Morales lethal injection trial in California, is slated to be the keynote speaker.

For more information:

Contact: Marcia Kahnowitz and Eliza Orlins
Tel: (212) 636-6881
Fax: (212)-636-6694
Email: fordhamuljsymposium@gmail.com

Give Them Death: 3 Leading Democratic Candidates Support Capital

Jan. 25



USA:

Give Them Death: 3 Leading Democratic Candidates Support Capital
Punishment


Opposing the death penalty used to distinguish Democrats from Republicans.
Now, across party lines, death is just another day at the office.

When Clinton, Obama and Edwards took the stage before a mostly
African-American crowd in Myrtle Beach, S.C., on Monday night, they came
brimming with concern for the plight of black America. From the
disproportionate effects of the subprime loan crisis to the racially drawn
pitfalls of U.S. healthcare, the black community, said Edwards, "is hurt
worse by poverty than any community in America. And it's our
responsibility, not just for the African-American community, but for
America, as a nation, to take on this moral challenge."

Politicians like to see moral challenges when it's convenient. The
candidates have labeled the war in Iraq, global warming and the economy
"moral challenges" before various audiences in the past few months. But
there's one topic the leading Dems systematically exclude from their
morality crusade, one that begged to be addressed before an
African-American audience in a Southern state: the death penalty.

It's not news that African-Americans are disproportionately represented on
death row. While 12 % of the country is African-American, more than 40
percent of the country's death row population is black -- and although
blacks and whites are murder victims in nearly equal numbers, 80 % of the
prisoners executed since the death penalty was reinstated were convicted
for murders in which the victim was white. Study upon study in states
across the country have discovered racial bias at every stage of the death
penalty process, including one that found that the more "stereotypically
black" a defendant is perceived to be, the more likely that person is to
be sentenced to death. Add to that the fact that over 20 percent of black
defendants who have been executed were convicted by all-white juries, and
the racial reality of the death penalty becomes impossible to ignore.

Sure, all three candidates have given nod to our racist criminal justice
system from time to time. At the South Carolina debate, Barack Obama
acknowledged it as "something that we have to talk about," specifically,
the fact that "African-Americans and whites ... are arrested at very
different rates, are convicted at very different rates [and] receive very
different sentences." Edwards, speaking out on the case of the Jena 6,
last fall, said, "As someone who grew up in the segregated South, I feel a
special responsibility to speak out on racial intolerance." Even Hillary
has labeled the incarceration boom that followed passage of her husband's
crime bill -- for which she lobbied hard -- "unacceptable." When it comes
to criminal justice, she said in Iowa, "I want to have a thorough review
of all of the penalties."

Still, not one leading Democrat is about to make criminal justice reform
-- let alone the death penalty -- central to his or her platform.

Clinton, Obama and Edwards all support capital punishment. It's a position
you'd be hard pressed to find on their websites, and they might not be
bragging about it the way they might have in, say, 2000. Or 1996. Or 1992,
the year their party's pro-death penalty stance was codified in its
official party platform and then-presidential candidate Bill Clinton made
a campaign trail detour to Arkansas, where he presided over the execution
of mentally damaged prisoner Ricky Ray Rector. Nevertheless, all three
hold on to their pro-death penalty stance, as have virtually all leading
Democrats running for office in the past 20 years.

Why so much longstanding support for capital punishment? It is the easiest
way to combat the quadrennial charge that Democrats are "soft on crime."

Opposing the death penalty used to be one way for Democrats to distinguish
themselves from their rivals on the campaign trail -- at least before
Michael Dukakis was lampooned after a 1988 debate in which he failed to
wax bloodthirsty when asked if he'd want to execute a theoretical
rapist/murderer if the victim was his wife, Kitty. The years that followed
saw the Democrats cozy up to capital punishment: The Clinton era brought a
sweeping expansion of the federal death penalty, thanks to the Crime Bill,
and a sharp cut in death row appeals, thanks to the Anti-Terrorism and
Effective Death Penalty Act. State executions spiked in the late '90s,
more than doubling between 1996 and 1999.

But times have changed. Since 2000, executions have been in steady
decline, and not because of the Democratic Party establishment. The
Supreme Court has outlawed the execution of mentally retarded persons and
prisoners convicted as juveniles; a revolution in DNA testing has put
wrongful convictions on the front pages of newspapers nationwide; and in
December, New Jersey became the first state in the country to pass
legislation abolishing the death penalty in 40 years. Currently,
executions are stalled altogether, as states await a ruling in the
landmark Supreme Court case Baze v. Rees, which examines lethal injection
as it is carried out in 36 states.

Given the climate, you would think the time is ripe for the Dems to
reconsider the death penalty -- perhaps even dust it off as a way to
differentiate themselves from the Republicans this November.

You would be wrong.

Obama, Edwards and Clinton have remained practically mute about the death
penalty in the past few months, reiterating their support only when asked
-- and giving heavily qualified answers. Take Obama, for starters. In a
2004 debate against Alan Keyes, his opponent in the race for U.S. Senate,
Obama declared that "there are extraordinarily heinous crimes --
terrorism, the harm of children -- in which [the death penalty] may be
appropriate." "We have to have this ultimate sanction in certain
circumstances," he said. "I think it's important that we preserve that."
Obama repeated his stance in his 2006 memoir, The Audacity of Hope, where
he invoked crimes "so heinous ... that the community is justified in
expressing the full measure of its outrage."

On the campaign trail, Obama has continued to characterize the death
penalty as a necessary evil, while also boasting about his role in trying
to perfect it. "I am somebody who led on reforming a death penalty system
that was broken in Illinois -- that nobody thought was good politics, but
was the right thing to do," he said on the night of the South Carolina
debate.

In fact, it was good politics. Obama's primary role in his much-touted
death penalty reform was a successful push to videotape police
interrogations in a state where violently coerced confessions had sent at
least 13 men to death row. Republican Gov. George Ryan -- who actually
co-chaired execution kingpin George W. Bush's 1st election campaign -- had
had a moratorium in place since January 2000. By the time Obama's
legislation passed, 4 innocent men had already been pardoned -- and Ryan
had emptied Illinois' death row. In fact, before the scandal of Illinois'
death penalty system broke -- a scandal born in police interrogation rooms
on Chicago's South Side, where Obama had been a community organizer --
Obama seemed happy to bolster capital punishment in his state. As a
freshly elected state senator in 1997, he voted to expand the death
penalty to include the murderers of senior citizens or the disabled. If
the Democrats were truly outraged at the injustice of the American justice
system, Obama would face serious questions about his support of
state-sanctioned murder and not about what went up his nose decades ago.

Today, the Obama camp likes to paint its man as anti-death penalty with a
few exceptions. "Obama opposes the death penalty except for terrorists,
serial killers and child-murderers," two reporters wrote in the Hill last
spring, "but his campaign added that he does not support the death penalty
as it is currently administered in this country."

Or, as one blogger wrote last year, "In a nutshell: He's pro-death
penalty, but he is also pro-let's not execute the wrong guy."

Who isn't "pro-let's not execute the wrong guy"?

If Obama's Chicago years dampened his support for the death penalty, one
would think Edwards' Senate tenure and time in the courtroom would have
turned him off to the death penalty altogether. His years in office saw
the exonerations of three death row prisoners from North Carolina's death
row, a 2001 study finding deep racial bias in the state's death penalty
system, and a historic vote in 2003 that would make the state senate the
first legislative body in the South to pass moratorium legislation. Yet he
held on to his support for the death penalty.

When Edwards was asked at the Yearly Kos convention last summer to
reconcile his "two Americas" rhetoric with support of a punishment that
disproportionately condemns poor people of color to die (full disclosure:
I was the questioner), Edwards gave a lengthy answer that, boiled down,
called for death to killers of children. More recently, on NPR's Talk of
the Nation, responding to a caller concerned about his support for capital
punishment, Edwards acknowledged the racial bias, the problem of wrongful
convictions, unequal legal representation -- he even talked about the
trouble with "death qualified juries." Nevertheless, he defended his
pro-death penalty stance.

And then there's Hillary. Perhaps even more than Obama or Edwards, Hillary
has avoided discussing capital punishment on the campaign trail. As a
senator representing a state that got rid of the death penalty during her
tenure, at the same time that the Ashcroft and Gonzales-led Department of
Justice sought to prosecute more federal capital cases in New York,
Hillary has had precious little to say about the death penalty in the past
few years. She supports it, of course -- has for years -- and she, like
her opponents, also supports "reforms." In 2003, she co-sponsored the
Innocence Protection Act, to make DNA testing available for individuals
sentenced to death under federal law. Penance, perhaps, for having helped
to curtail death row appeals in the '90s.

Regardless of who gets the Democratic nomination, the death penalty is
certain to be off the table in the general election, where tough talk on
terrorism will trump domestic criminal justice policy discussions. "I
doubt that candidates from either side will raise the death penalty issue,
though it might come up as a question," says Richard Dieter, executive
director of the Death Penalty Information Center. "Because this issue has
become so multisided, each position on the death penalty has drawbacks. If
you support it, you have to admit its flaws. If you oppose it, you may not
raise it for fear of being out of the mainstream."

As opposition to state-sanctioned killing becomes more and more
mainstream, however, the Democrats should be able to muster the courage to
come out against it too. But there's no sign that that is a "moral
challenge" they are ready to take on. Rather, the pro-death penalty,
pro-"reform" stance occupied by Obama, Edwards and Clinton is little more
than a gift to capital punishment supporters who claim the machinery of
death just needs some fine-tuning.

(source: Column, Liliana Segura, AlterNet.com)

Physicians and Execution

Physicians and Execution By Gregory D. Curfman, M.D., Stephen Morrissey, Ph.D., and Jeffrey M. Drazen, M.D. Jan 25, 2008, 10:54 http://axisoflogic.com:80/artman/publish/article_25922.shtml

Volume 358:403-404 January 24, 2008 Number 4

Physicians and Execution

Gregory D. Curfman, M.D., Stephen Morrissey, Ph.D., and Jeffrey M. Drazen, M.D.

This spring the U.S. Supreme Court in Baze v. Rees1 will rule on the constitutionality of the three-drug regimen currently used for lethal injection in most state executions. The Eighth Amendment to the U.S. Constitution prohibits punishment that is "cruel and unusual." The central question before the Court in Baze is whether the use of sodium thiopental, pancuronium bromide, and potassium chloride violates that constitutional prohibition.

The heinous nature of the crimes committed by Ralph Baze and his coplaintiff, Thomas Bowling, is not in doubt. What the Court will decide is whether the current lethal-injection protocol does or does not meet an acceptable constitutional standard of human decency.

Lethal injection was introduced in the United States in 1977 explicitly to sanitize executions, since the older methods — hanging, electrocution, and chemical gassing — were considered to be inhumane. The three-drug regimen that is commonly used was proposed by an Oklahoma forensic pathologist, Dr. A. Jay Chapman, and adopted by the state legislature without any scientific or medical testing. Injected drugs, now used in all but 1 of the 37 states in which capital punishment is legal, have been part of the increasing medicalization of executions and the enlistment of medical personnel to lend them apparent moral legitimacy.

Since 1977 the Oklahoma regimen has been used in approximately 900 executions, several dozen of which have been botched because of infiltration of intravenous lines, inadequate anesthesia, drug precipitation when solutions of sodium thiopental and pancuronium bromide are mixed, and other problems. In a vivid example, an inmate in Ohio in 2006 raised his head repeatedly during the execution and said, "It don't work."

The use of a neuromuscular blocker, pancuronium bromide, as part of the protocol has been especially controversial, since it has no anesthetic properties and only paralyzes the person, which can mask inadequate anesthesia if a sufficient dose of sodium thiopental has not been administered. The person may be alert and aware and may suffocate owing to paralysis of respiratory muscles, but there will be no way to know it. Also, the subsequent intravenous administration of potassium chloride would cause excruciating pain in a conscious person, but this too would be concealed by paralysis.

As a consequence of botched executions, the assistance of physicians and other health care professionals has increasingly been sought to provide consultation, place intravenous lines, mix and administer drugs, and monitor the results. This fact is not widely appreciated because such physicians often choose to remain anonymous. Still, many physicians and medical societies, including the American Medical Association and the American Society of Anesthesiology, have taken strong stands against the involvement of medical professionals in capital punishment. Although some states have forbidden medical boards to reprimand physicians who participate in executions, few medical professionals have agreed to assist in lethal injection. For example, in response to a federal court order in 2006, the State of California required the presence of qualified medical personnel at the execution of Michael Morales. Prison officials found two anesthesiologists who were willing to participate, but when informed in detail of the role they would play, they withdrew hours before the scheduled lethal injection, which was then halted.

Since the Morales case, there is evidence of a growing sentiment in the country against executions: only 42 executions took place in 2007 (as compared with 98 in 1999), New Jersey decided in December 2007 to abolish capital punishment, and the U.S. Supreme Court agreed to hear Baze v. Rees, marking the first time the Court has examined the constitutionality of lethal injection as a means of execution. But the people's unease over the death penalty is not new. In his 1972 concurring opinion in Furman v. Georgia,2 in which the Supreme Court ruled capital punishment to be cruel and unusual because of arbitrary and capricious application, Justice William Brennan wrote, "The progressive decline in, and the current rarity of, the infliction of death demonstrate that our society seriously questions the appropriateness of this punishment today." Although Furman was reversed in 1976 in Gregg v. Georgia,3 and executions resumed in the United States, the Court subsequently ruled unconstitutional the execution of the mentally retarded (in Atkins v. Virginia, 2002)4 and juveniles (in Roper v. Simmons, 2005).5 In both cases, Justice Anthony Kennedy, the current swing-vote justice, was in the majority, and he wrote the Court's opinion in Roper. If the Court's opinion in Baze is decided by a 5-to-4 majority, Justice Kennedy may again be at center stage, and his vote may prove decisive.

We are concerned that, regardless of its decision in Baze v. Rees, the Court may include language in its opinion that will turn again to the medical profession to legitimize a form of lethal injection that, meeting an appropriate constitutional standard, will not be considered "cruel and unusual punishment." On the surface, lethal injection is a deceptively simple procedure, but its practical application has been fraught with numerous technical difficulties. Without the involvement of physicians and other medical professionals with special training in the use of anesthetic drugs and related agents, it is unlikely that lethal injection will ever meet a constitutional standard of decency. But do we as a society want the nation's physicians to do this? We believe not.

Physicians and other health care providers should not be involved in capital punishment, even in an advisory capacity. A profession dedicated to healing the sick has no place in the process of execution. On January 7 in oral arguments in Baze v. Rees, the justices asked many important and thoughtful questions about a potential role for physicians and other health care professionals in executions. In their fuller examination of Baze v. Rees, the justices should not presume that the medical profession will be available to assist in the taking of human lives. We believe that, like the anesthesiologists in the Morales case, all responsible members of the medical profession, when asked to assist in a state-ordered execution, will remember the Hippocratic Oath and refuse to participate. The future of capital punishment in the United States will be up to the justices, but the involvement of physicians in executions will be up to the medical profession.

Perspective Roundtable: Physicians and Execution

On January 7, 2008, the U.S. Supreme Court heard oral arguments in Baze v. Rees, which turns on the question of whether the three-drug protocol used to carry out the death penalty by lethal injection causes avoidable pain and suffering, in violation of the Constitutional ban on cruel and unusual punishment. On January 14, the Journal hosted a roundtable discussion of the case, the protocol, and the involvement of health care professionals in lethal injection. Moderator Atul Gawande, associate professor of surgery at Harvard Medical School, was joined by Deborah Denno, professor of law at Fordham University; Robert Truog, professor of medical ethics, anesthesiology, and pediatrics at Harvard Medical School; and David Waisel, associate professor of anesthesia at Harvard Medical School. Readers can watch the video of the roundtable discussion online at www.nejm.org. Readers can also vote online on whether they believe physicians and other health care professionals should be involved in executions and whether they themselves would choose to participate in executions.

Source Information

This article (10.1056/NEJMe0800032) was published at www.nejm.org on January 7, 2008.

References

Baze v. Rees, No. 07-5439.
Furman v. Georgia, 408 U.S. 238 (1972).
Gregg v. Georgia, 428 U.S. 153 (1976).
Atkins v. Virginia, 536 U.S. 304 (2002).
Roper v. Simmons, 543. U.S. 551 (2005).

The New England Journal of Medicine is owned, published, and copyrighted © 2008 Massachusetts Medical Society. All rights reserved.

http://content.nejm.org/cgi/content/full/358/4/403

Please read a comment by David Seth Michaels here:

Today the New England Journal of Medicine ran an editorial stating that doctors should not be involved in executions. Period. This is an important step, and something that moves us toward abolition. Details here:
http://dreamantilles.blogspot.com/

May all beings refrain from killing and prevent others from killing. May all beings be happy. May all beings be safe. May all beings be well. May all beings realize their enlightenment.

david

Flashback: Bill Clinton’s 1992 execution gambit

Flashback: Bill Clinton’s 1992 execution gambit

On this date in 1992 Ricky Ray Rector was executed. Rector was severely mentally handicapped due to an attempted suicide that left him effectively lobotomized.

When Rector’s execution day approached, he was given the standard last meal. For dessert, he was offered a slice of pecan pie, which he moved to the window sill of his holding cell. When asked why he was not eating his pie, he remarked that he was “saving it” for “after the execution.”

Enter the 1992 Presidential Elections, Bill Clinton’s campaign on the ropes in New Hampshire, as well as Clinton’s need to look tough and “not pull a Dukakis” on the issue of the death penalty. Clinton

interrupted campaigning in New Hampshire to fly home to preside over the execution of the mentally challenged Rector. (Such an act was not necessary legally – the execution could well have proceeded without the governor’s presence in the state. But Clinton wanted to prove that he was a “new” Democrat, tough on crime.)

History has not treated Clinton kindly for this calculated and callous act of political opportunism. In 2002, a columnist for the San Francisco Chronicle wrote:

A date which ought to live in infamy for the Democratic Party is Jan. 24, 1992. That’s the day Ricky Ray Rector was executed in Arkansas while Gov. Bill Clinton stood by and did nothing. On that day in Arkansas, the Democratic Party also died. Its body is still with us, to be sure, but its heart and soul died 10 years ago.

There’s evidence this could be changing. Although no major Democratic candidate (sorry, Dennis) has come out against the death penalty, the fact of the matter is the death penalty, at least in Democratic circles, has lost its saliency as a political issue.

David Elliott guest posting at Executed Today has more.

Death row inmate Mark Dean Schwab denied hearing

The Florida Supreme Court this morning ruled in favor of a lower court's decision.

Sarah Lundy

Sentinel Staff Writer

1:59 PM EST, January 24, 2008

The Florida Supreme Court this morning ruled in favor of a lower court's decision to deny death row inmate Mark Dean Schwab an evidentiary hearing to present what his attorneys called new evidence.

Schwab - who has been on death row since 1992 - was convicted of raping and killing 11-year-old Junny Rios-Martinez of Cocoa. He was set to be executed by lethal injection on Nov. 15 at Florida State Prison in Starke. Hours before the execution, the U.S. Supreme Court issued a stay.

The country's top court has delayed several executions across the country since late September after agreeing to review a Kentucky case. The justices are considering whether the way Kentucky and other states, including Florida, administer the three-drug combination to death-row prisoners is constitutional. An opinion is expected this summer.

While the U.S. Supreme Court deals with the constitutional issue, Schwab's attorneys were working to get their client a hearing to present evidence by a doctor who testified in Schwab's 1992 sentencing. They also want to show how the state isn't prepared to proceed with the injection. Notes - taken by state officials during five mock executions in July - show how participants botched two of them.

Brevard Circuit Court Judge Charles Holcomb disagreed, saying the mock executions followed previous execution guidelines and were not relevant to current protocols. Holcomb wrote in the order that he did not think the doctor's new opinion would have an effect on the death sentence.

The Florida Supreme Court backed Holcomb's ruling.

More on the Nebraska Abolition Bill

More on the Nebraska Abolition Bill

The Omaha World-Herald has, "Death penalty repeal returns."

State Sen. Ernie Chambers is hoping to take Nebraska's death penalty with him when he leaves the Legislature next January.

Chambers, who has spent more than three decades trying to pull the plug on the state's electric chair, tried again Tuesday — introducing a bill to repeal capital punishment and replace it with a sentence of life in prison without possibility of parole.

The Omaha lawmaker has one session left to persuade colleagues to end the death penalty before he leaves office next year because of term limits.

One powerful senator, Judiciary Committee Chairman Brad Ashford of Omaha, said Chambers' Legislative Bill 1063 may have a chance.

Ashford said Chambers is just one of several lawmakers who have expressed skepticism in the past couple of years over the death penalty's effectiveness.

Ashford said he expects the repeal measure to pass out of the Judiciary Committee and reach the full Legislature.

"This is an issue that, quite frankly, is not just Ernie's issue. I think there is a lot of doubt in the body about whether the death penalty works," Ashford said.

Chambers is one of the state's most passionate opponents of the death penalty. Since first being elected a state senator in 1970, he has argued that capital punishment is arbitrary, cruel and ineffective.

But he has never seen a repeal bill signed into law, despite some short-lived legislative victories.

In 1979, Chambers successfully pushed a repeal measure through the Legislature, but it was vetoed by then-Gov. Charles Thone.

In 1999, Chambers joined forces with Sen. Kermit Brashear to successfully push for a moratorium on executions. That was vetoed by then-Gov. Mike Johanns.

This post yesterday carried an AP report on the bill.