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Landrigan Executed After SCOTUS Lifts Stay

Last night the U.S. Supreme Court lifted the stay of execution of repeat murderer Jeffrey Landrigan.  The decision was 5-4.  The District Court's grant of a stay based on mere speculation had failed to heed the standard set forth in the 2008 lethal injection case from Kentucky, Baze v. Rees.  "But speculation cannot substitute for evidence that the use of the drug is ' "sure or very likely to cause serious illness and needless suffering." ' Baze v. Rees, 553 U. S. 35, 50 (2008) (quoting Helling v. McKinney, 509 U. S. 25, 33 (1993))."  (Emphasis by the Court.)

The execution proceeded shortly after 10:00 p.m. MST.  Michael Kiefer has this story in the Arizona Republic.  The execution was apparently uncomplicated, confirming that the brouhaha over the source of the drug was indeed pure speculation.

Will this decision affect the stay litigation in California?  It should.  Judge Fogel now has a clear directive from the high court that unless the new California protocol fails this "sure or very likely" standard, he should allow executions to proceed.  The protocol surely passes.

The worrisome note here is the 5-4 division on the Court and the party-line nature of the division.  If one of the five retires while Barack Obama is President, the course of justice could take a sharp turn for the worse.

Update: John Schwartz has this story in the NYT.


An interesting sidenote to the story is Landrigan's reported last words:


As the Beach Boys say, "Be true to your school."

It will be interesting to see Justice Sotomayor's position on this and other criminal issues. USA Today notes that this was her "first major vote." http://www.usatoday.com/news/washington/judicial/supremecourtopinions/2010-10-27-supreme-court-lethal-injection_N.htm?csp=34news

Let's get right down to brass tacks. If President Obama gets the opportunity to appoint one more justice to the Supreme Court, do you think they'll rule that the death penalty's unconstitutional? Will the vast majority opinion of Americans be forced into passing a constitutional amendment solidifying capital punishment in United States jurisprudence?

yanklap --

At this point, a constitutional amendment would be welcome irrespective of future SCOTUS appointments, because the DP is already so weighted down with restrictions and delay that we have a half-baked moratorium hiding in plain sight.

I have not thought through what the wording of such an amendment would be, but it should have at least two sections.

Section 1. Notwithstanding any other provision of law, the courts of the United States and of any state may impose the punishment of death for such crimes as their respective legislatures may determine.

Section 2. Notwithstanding any other provision of law or any pending litigation, a death sentence by the United States or any state is to be carried out not more than seven years after it is imposed.

This would resolve two of the the biggest problems out there, to wit, (1) that the DP seems to have been confined, by Kennedy v. Louisiana, to crimes actually resulting in death. But grotesque things like aggravated and repeat child sexual abuse, and attempted mass murder (i.e., trying to toss some deadly agent the in NYC water supply), ought to be eligible, and states should be free to make them eligible; and (2) these interminable delays, which more than anything else have produced our quasi-moratorium. Actual innocence or racial discrimination are fact-bound issues that it couldn't possibly take more than seven years to resolve in a system that takes itself the least bit seriously.

So, as to a constitutional amendment: Bring it on.


you can't be serious can you? Anthony Graves walked free from Texas' death row last week after sixteen years, more than double the time limit you propose. Under your system he would be dead, as would many other people who have been exonerated (also Kennedy confined its holding to crimes against individuals, attempted mass murder or treason would likely still be death eligible).

Your second section violates basic due process. It doesn't even contain a provision providing an exception for delay due to the State's own fault. Someone could be waiting for their first appeal for seven years and then be executed, even if they had been convicted after a blatantly unconstitutional trial.

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