The Supreme Court has agreed to decide whether the use of lethal injections to execute inmates -- a procedure that may inflict unnecessary pain and suffering -- violates the Eighth Amendment's prohibition of cruel and unusual punishments.

The high court will hear a challenge from two inmates on death row in Kentucky - Ralph Baze and Thomas Clyde Bowling Jr. - who sued Kentucky in 2004, claiming lethal injection amounts to cruel and unusual punishment. Baze has been scheduled for execution Tuesday night, but the Kentucky Supreme Court halted the proceedings earlier this month.

There are, of course, broader reasons to oppose the death penalty, as a new ABA study of capital punishment in Ohio demonstrates.

The system is full of racial and geographic imbalances, too many defendants don't get adequate legal help and too many protections of offenders' rights are absent from the capital punishment process, according to a 30-month review of Ohio's death penalty system by the American Bar Association.

The authors of the report want Ohio to suspend executions until the flaws in its criminal justice system are corrected. That would be good advice for every state that relies on death as a punishment.

(Andy Warhol's "Electric Chair", 1971)

Nebraska, which currently has 10 men on death row, still uses the electric chair exclusively for executions.

Today, the Nebraska Supreme Court holds oral argument on the constitutionality of frying its death inmates.

The case being argued involves an appeal filed by death-row inmate Raymond Mata Jr. But it also could affect the case of death row inmate Carey Dean Moore, who came within days of being executed in May.

The court cited the Mata appeal when it abruptly halted Moore's scheduled execution. The court said the legal questions surrounding the electric chair needed to be resolved before another inmate was put to death in Nebraska.

Nebraska legislators were one vote short of ending the death penalty this year. The answer is not to switch from the electric chair to lethal injection, but from the electric chair to life without the possibility of parole.

If the Nebraska high court tosses Old Sparky it will leave the state without a death penalty. Hopefully, one more legislator will change his mind when it comes time to consider a new death penalty law in the state.

Bump and Update: Texas Governor Rick Perry has commuted Kenneth Foster's death sentence.

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Just in... The Texas Board of Pardons and Paroles has recommended a stay of execution for Kenneth Foster.

Texas Governor Perry will make the final decision before 6 pm tonight.

Send an e-letter to Gov. Perry now. Background on the case is available here.

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Texas executed Daroyce Mosely last night. It executed John Amador tonight. Tomorrow night, Thursday, it is scheduled to execute Kenneth Foster.

The execution of Kenneth Foster has been drawing loud protests because it is acknowledged that Foster never killed anyone. He was convicted and sentenced to death under Texas' "law of the parties" rule (known as felony murder in other states -- think Lisl Auman in Colorado.) Basically it holds the accomplice liable for the murder, including the death penalty, if the accomplice should have anticipated the murder or was recklessly indifferent to it.

During the course of a robbery and while 80 feet away from him, Foster's co-conspirator took out a gun and killed a law student.

This Dallas Morning News editorial explains why Foster's execution is wrong.

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Update: Texas executed its 400th inmate today, Johnny Ray Connor.

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European Union Urges Halt to Texecutions

As Texas is about to execute its 400th prisoner, the President of the European Union issued this statement yesterday calling for an end to Texas executions.

We believe that elimination of the death penalty is fundamental to the protection of human dignity, and to the progressive development of human rights. We further consider this punishment to be cruel and inhumane. There is no evidence to suggest that the use of the death penalty serves as a deterrent against violent crime and the irreversibility of the punishment means that miscarriages of justice - which are inevitable in all legal systems – cannot be redressed. Consequently, the death penalty has been abolished throughout the European Union.

Joining in the statement:

The Candidate Countries Turkey, Croatia* and the former Yugoslav Republic of Macedonia*, the Countries of the Stabilisation and Association Process and potential candidates Bosnia and Herzegovina, Montenegro, Serbia, and the EFTA countries Iceland, Liechtenstein and Norway, members of the European Economic Area, as well as Ukraine, the Republic of Moldova, Armenia and Azerbaijan align themselves with this declaration.

Johnny Ray Connor is scheduled for execution in Texas today.

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While we're on the topic of the Patriot Act today, the L.A. Times reports that the Justice Department may begin using one of its rarely noted provisions -- one that gives the Attorney General the power to shorten the time period within which state death row inmates can file federal appeals of their death sentences. New regulations have been proposed to implement the power.

The rules implement a little-noticed provision in last year's reauthorization of the Patriot Act that gives the attorney general the power to decide whether individual states are providing adequate counsel for defendants in death penalty cases. The authority has been held by federal judges.

Under the rules now being prepared, if a state requested it and Gonzales agreed, prosecutors could use "fast track" procedures that could shave years off the time that a death row inmate has to appeal to the federal courts after conviction in a state court.

As for what the new regulations provide:

The procedures would cut to six months, nstead of a year, the time that death row inmates have to file federal appeals once their cases have been resolved in the state courts.

It would also impose strict guidelines on federal judges for deciding such inmates' petitions. Federal district judges would have 450 days, appeals courts 120 days.

If it weren't so serious, this line would make me laugh: "Proponents say that would prevent foot-dragging by liberal judges."

As if that's the problem given the number of wrongfully convicted people on death row, those denied adequate counsel and DNA testing at the state level, and a host of other constitutional guarantees.

It was bad enough that AEDPA limited habeas appeals to one year. This is even worse.

Update: The ACS blog has more.

Remember the dyslexic Missouri doctor who botched the drug dosages in dozens of executions?

The New York Times today opines on the practice of states like Missouri that "hood the executioner."

Missouri's ultimate response was to pass a law protecting the identity of the doctor administering the drugs and his ability to practice medicine even if he screws up:

Last month, however, Missouri’s governor signed a law that makes it a crime to reveal the identities of current or former executioners — as The St. Louis Post-Dispatch did in the case of the doctor who claimed dyslexia. It allows executioners to sue those who expose them and forbids medical licensing boards to punish doctors or nurses who participate in executions.

As the Times says,

Under the new secrecy law, Missouri’s capital punishment system may plunge deeper into incompetence and cruelty, and it will be harder for citizens to stop it.

Bottom line:

We oppose capital punishment for a host of reasons, including that it is unconstitutional. Even those who support executing their citizens must see the need to ensure that the process is not barbarically cruel and is fully open to public scrutiny.

One quibble with the Times. It cites Adam Liptak's recent articles on lethal injection. If the Times is serious about exposing the injustice of lethal injections, it ought to take Liptak's articles out from behind its "Times Select" firewall so everyone can read them.

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Last week, Governor Charlie Christ ended the suspension on executions in the state. Other objections are emerging.

At a hearing Sunday in a case involving an upcoming execution, Circuit Judge Carven Angel in Ocala expressed additional objections:

Circuit Judge Carven Angel in Ocala questioned the "experience and competence" of the hooded executioner who's paid by the state to apply lethal chemicals in the death chamber.

The Judge noted that the job of executioner, which pays $150.00 per execution, is open to those 18 and older. The law provides his or her identity be kept secret.

"I don't think that any 18-year-old executioner with the pressure of a governor's warrant behind him to carry out an execution, and with the pressure of the whole world, the press and the whole world in front of him, and looking at him, is going to have enough experience and competence to stop an execution when it needs to be stopped," the judge said, according to the transcript. "I just don't think that's going to happen."

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The Georgia State Board of Pardons and Parole has granted Troy Davis, scheduled for execution tomorrow, a 90 day stay of execution.

The stay means the execution will be on hold while the board weighs the evidence presented as part of Davis' request for clemency. The board must rule by Oct. 14.

That's what his lawyers were asking for all along, a chance to present their evidence. The actual order is here (pdf).

Original Post 8:00 am :
Executioner's Clock Still Ticking for Troy Davis

Troy Davis is scheduled to be executed in Georgia on Tuesday. Time is running out as concern grows among his supporters that Davis is innocent. Witnesses against him have recanted, some stating their testimony against him was the product of police coercion.

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Georgia has scheduled the execution of Troy Anthony Davis for July 17. He may be innocent.

Davis' supporters believe he is innocent and the human rights organization Amnesty International believe Davis could be innocent because there was no physical evidence in the Davis case, and no murder weapon found.

Out of the nine prosecution witnesses who testified against Davis, seven have now recanted most of their testimony that was used to convict Davis for murder. Jurors stated that they were not aware that most of the witnesses were pressured and coerced by police into signing the affidavits that were used against Davis. One witness reported that he had not even read what he signed. The National Coalition to Abolish The Death Penalty is also supporting Davis.

Amnesty International released a press release on the Davis case, and Judge Rosemary Barkett of the 11th Circuit Federal Appeals Court said "If these people say, 'I was coerced by the police,' how could he [Judge Nangle] reject without a hearing?"

Much more information is available here.

The Supreme Court today set aside the death penalty of a delusional inmate.

In a rebuke to lower courts, the justices ruled 5 to 4 that the defendant, Scott Louis Panetti, had not been shown to have sufficient understanding of why he was to be put to death for gunning down his wife’s parents in 1992.

The court, acting on the last day of the 2006-7 term, declined to lay out a new standard for competency in capital cases. But it found that existing protections had not been afforded.

The decision is significant, particularly for Texas. In a press release today, the National Association of Criminal Defense Lawyers (NACDL) wrote:

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Paul Charleton, the former U.S. Attorney for Arizona who was fired by Attorney General Gonzales, testified before Congress yesterday and said Gonzales was "overzealous" in his determination to seek the death penalty, often against the advice of prosecutors in charge of the case.

The Bush administration has so far overruled prosecutors' recommendations against its use more frequently than the Clinton administration did.

The pace of overrulings picked up under Gonzales's predecessor, Attorney General John D. Ashcroft, and spiked in 2005 and 2006, when the number of times Gonzales ordered prosecutors to seek the death penalty against their advice jumped from three to 21.

One example is the case of meth dealer Jose Rios Rico. Charleton describes Gonzales' unwillingness to listen to his arguments against seeking the death penalty based on the lack of forensic evidence showing Rico was the murderer:

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