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Patchwork Moratorium


Update3 (10/18 1:30): The Georgia Supreme Court changed its mind. So, apparently the moratorium is no longer a patchwork.

Update2: The Georgia Board of Pardons and Paroles has refused to stay the execution of Jack Alderman, scheduled for Friday, reports Rhonda Cook for the Atlanta Journal-Constitution.

Update: AP reports the Supreme Court has granted a stay in the Emmett case: "The stay granted by the [Supreme] court will last until [the Fourth Circuit] takes another look at the case. The justices did not comment further on their order." The order is here. It actually says "stayed pending final disposition of the appeal by the ... Fourth Circuit...." Not very illuminating. If the Fourth summarily affirms tomorrow for the same reasons it denied the stay, a new execution date can be set.
When the Supreme Court agreed to review the lethal injection controversy in Baze v. Rees, the question was breathlessly asked all over, "Does this mean a moratorium on executions." At first it appeared the answer was no, as the high court denied a stay to Michael Richard in Texas and he was executed. Then the court granted a stay to another Texas inmate, Carlton Turner. The cases may well have been distinguishable, but I commented here that an explanation was warranted. The Texas Court of Criminal Appeals then began staying executions. More recently, we have had some action in other states.

Next, the focus moved to Nevada, where "volunteer" William Castillo was on deck. The Baze case seemed unlikely to affect his case, as he was not asking for a stay, and others cannot come in to assert rights on behalf of a mentally competent person who does not want them asserted. See, e.g., Demosthenes v. Baal, 495 U.S. 731 (1990). Instead, the ACLU contended that the use of pancuronium bromide would violate its own First Amendment right to observe Castillo suffer. No, I'm not making that up. The Nevada Supreme Court actually took that seriously, stayed Castillo's execution, and ordered fast-track briefing of 60 days total. Pleadings and orders are collected on the courts "high profile cases" page. Both Castillo and the victims' family disapprove, Jaclyn O'Malley reports for the Reno Gazette-Journal.

In Arkansas, the Eighth Circuit granted a stay to Jack E. Jones in case 07-3165 on October 11, Judge Gruender dissenting. On October 16, the Supreme Court denied the state's motion to lift the stay, Justice Scalia dissenting.

Next to Virginia. There, the Governor previously granted a reprieve to Christopher Emmett, who in 2001 bashed in the head of roommate John Langley with a brass lamp in order to steal his money to buy crack. The reprieve was for the purpose of allowing the U.S. Supreme Court to give full consideration to Emmett's certiorari petition, which it denied on October 1. The Fourth Circuit denied a stay on October 15, Case No. 07-18. An application is pending in the U.S. Supreme Court, No. 07A304. Whether the Governor will grant a second reprieve and whether the Supreme Court will grant a stay remain undetermined as the clock ticks down to tonight's scheduled execution. Rebecca Blanton has this story in the Danville Register & Bee, and Frank Green reports for the Richmond Times-Dispatch.

Finally, there is Georgia. The Georgia Supreme Court denied a stay yesterday in the case of Jack Alderman. The order notes that the court has previously resolved the lethal injection issue. The U.S. Supreme Court has not indicated that all executions are to be stayed while it considers Baze. A grant of certiorari changes nothing as far as governing precedent is concerned. Alderman's lawyers have now gone to the Board of Pardons and Parole, reports Shannon McCaffrey for AP. No stay petition for Alderman was found on the U.S. Supreme Court's online docket as of this morning.

Doug Berman has this post at SL&P. Lyle Denniston weighs in at SCOTUSblog.

Is there a nationwide moratorium or not? Keep an eye on the Georgia and Virginia cases. If the Supreme Court issues an order granting or denying a stay in either case, it would be nice to tell us (and the lower courts) why.


Unfortunately, I believe we are headed into at least a 6 month moratorium in the US until Baze is decided. I think KY will win the case. I just can't see the SCOTUS reversing every appellate court that has considered the issue.

It's hard to tell for sure, but it appears that the Emmett filings were last minute (judging from the Fourth Circuit's docket number). So, apparently, the Fourth Circuit didn't have a ton of time to deal with the petition for a stay. Seems to me that those who bring last-minute appeals should be the ones risking a lack of clarity in court orders.

Why is it that normal rules, applicable to all litigants, i.e., the requirement of timely raising of claims, are ignored for the very litigants (capital murderers) who should get the least amount of sympathy from courts.

Moreover, as a unanimous Supreme Court has instructed, "Both the state and the victims of crime have an important interest in the timely enforcement of a sentence." Why then was the victim's family's interest so discounted here? It should be axiomatic that the interest of crime victims in not having the rug pulled out from under their legitimate expectations that an execution date set months in advance means that the execution is going to get carried out outweighs a murderer's interest in avoiding a method of execution that has been used for years but may be unconstitutional because it may impose a risk of too much pain. Emmett had the ability to challenge Virginia's method for years. He waited until the last minute, and he was allowed, by order of the Supreme Court, to profit from his dilatory filing. To say that this is an unacceptable state of affairs is to understate the point. Every Justice on that Court should be ashamed of themselves, and, they should have explained themselves.

What is comes down to is that the victims don't get to appeal at all for their lives, but the killers get endless chances to avoid payback. Its ironic how the inmates complain about "pain" in a LI compared to what they "dished" out. I believe a judge on the OCCA said just about the same thing.

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