Washingotn Post: Tribunal Supremo suspende ejecución de pena de muerte

Supreme Court Halts Va. Inmate's Execution
Ruling Could Lead To National Hiatus In Lethal Injections

By Robert Barnes and Jerry Markon

Washington Post Staff Writers Thursday, October 18, 2007; Page A01

The Supreme Court stopped the execution of Virginia death row inmate Christopher Scott Emmett yesterday, a move that legal experts said might signal a nationwide halt to lethal injections until the justices decide next year whether the procedure amounts to cruel and unusual punishment.

The court granted the stay of execution just four hours before Emmett was to be put to death. It is the second time the justices have stopped an execution since agreeing to decide whether lethal injections carry the potential for pain that would violate constitutional standards.

Comments that include profanity or personal attacks or other inappropriate comments or material will be removed from the site. Additionally, entries that are unsigned or contain "signatures" by someone other than the actual author will be removed. Finally, we will take steps to block users who violate any of our posting standards, terms of use or privacy policies or any other policies governing this site. Please review the full rules governing commentaries and discussions. You are fully responsible for the content that you post.

Who's Blogging?
» Links to this article
"I think this is a de facto moratorium," said Douglas A. Berman, a sentencing expert at Ohio State University's law school. Since almost all executions are carried out by lethal injection, he said a halt "would mean the most profound hiatus in the operation of the death penalty in at least two decades."

The justices review applications for stays on a case-by-case basis and gave no indication what their decision means for other death row inmates. They gave no reason for halting Emmett's execution, saying only that the stay would last until a federal appeals court in Richmond rules on the case "or further order of this court."

Emmett's attorneys have brought numerous appeals, and the Supreme Court turned down his latest Oct. 1. Emmett, 36, beat a co-worker to death with a brass lamp in a Danville, Va., motel room in 2001 and then stole his money to buy crack.

"The Supreme Court has spoken, and we will follow their decision," said David Clementson, a spokesman for Virginia Attorney General Robert F. McDonnell (R), who had urged that the execution be carried out.

Gov. Timothy M. Kaine (D), who previously had delayed Emmett's execution so the justices could consider his latest appeal, said in a statement that he "had no reason to question the prosecutor's decision to seek the death penalty or the jury's decision that death was an appropriate punishment."

The court's action spared Kaine, who personally opposes the death penalty but has overseen four executions in his time as governor, from having to make the decision to either halt the execution or allow it to go forward before the justices decide whether lethal injection is constitutional.

Other governors and courts are facing the same question. Executions by lethal injection have been delayed in at least six states, including Texas, which leads the nation in executions, since the court announced Sept. 25 that it was taking up the issue by accepting a Kentucky case. Other states had suspended the use of lethal injections because of questions about it.
"I think you'll see that very few states want to be the outliers when the court seems ready to step in and stop" the planned executions, Berman said.

Richard Dieter, executive director of the Washington-based Death Penalty Information Center, agreed. "I believe this stay in Virginia, combined with previous stays in a number of other states, confirms that a moratorium on all lethal injections is in place in this country until the Supreme Court rules on the issue," he said.

Lethal injection is the primary method of execution in 37 of the 38 states that have the death penalty. Nebraska uses electrocutions, but no executions are scheduled there.

Kent Scheidegger, legal director and general counsel for the Criminal Justice Legal Foundation, which favors capital punishment and opposes expansion of criminal rights, said he had hoped the court would explain its reasoning in its case-by-case review of the stay requests. Another appeal, from Georgia, is likely to reach the court this week.

If the court's action amounts to a moratorium, Scheidegger said, it would dilute "the deterrence effect" of the death penalty and "cause more innocent people to die."

Even without a halt to the use of lethal injections, the pace of executions nationally is the slowest in a decade. A Texas execution carried out on the day the court announced it had accepted the Kentucky case was the last.

The case, Baze v. Rees, does not question the constitutionality of the death penalty but whether lethal injection violates the Eighth Amendment's prohibition of cruel and unusual punishment.
Since accepting the case, the justices have issued stays in two executions that lower courts in Texas and Virginia had said could move forward. Tuesday night, they refused to vacate a stay that the U.S. Court of Appeals for the Eighth Circuit had issued for an Arkansas death row inmate.

Justice Antonin Scalia dissented from that decision, saying that the appeals court applied the "mistaken premise" that the court's decision to take Baze"calls for the stay of every execution in which an individual raises an Eighth Amendment challenge to the lethal injection protocol."
No other justice signaled agreement with Scalia, and he did not note a dissent in the stay of Emmett's execution.

States began using lethal injection in 1978 on the grounds that it was more humane than electrocution and the gas chamber. Almost all the states that employ lethal injection use the same combination of three chemicals: sodium thiopental, a barbiturate intended to render the inmate unconscious at the start of the procedure; pancuronium bromide, which paralyzes the muscles; and potassium chloride, to stop the heart.

Studies have shown that if the barbiturate is not administered properly, some inmates might be fully aware as the paralyzing agent cuts off their ability to breathe. Moreover, pancuronium is known to cause severe pain, but the inmate would be unable to express that.

Maryland's method of lethal injection is being challenged in federal court, and the state's highest court ruled in December that state officials had not properly adopted the regulations for carrying it out. Gov. Martin O'Malley (D), an opponent of capital punishment, has delayed issuing those regulations.

Virginia's Clementson said the commonwealth's procedures have been reviewed by the courts "and always found to be humane and constitutional." The state has no more executions scheduled this year.

SCOTUSblog: Tribunal Supremo y Pena de Muerte

Analysis: Reopening a very old issue

Tuesday, September 25th, 2007 12:56 pm Lyle Denniston

Not since March 17, 1879, has the Supreme Court faced a constitutional test over a method of carrying out the death penalty. On that day, in Wilkerson v. Utah, it upheld a court’s order that one Wallace Wilkerson be taken to a place within the Utah Territory “and that you there be publicly shot until you are dead” — that is, by firing squad. (NOTE: See the Comment below for a suggestion that the Court has ruled on a constitutional challenge to an execution method more recently than 1879 — In re Kemmler, in 1890, involving the electric chair.)

In a 13-line order released on Tuesday morning, the Court opted to return to that question — this time, apparently, to lay down a legal standard on when it could violate the Eighth Amendment to execute a convicted individual by using a three-chemical combination — a specific protocol now in use in 36 states. (Among the 38 states that retain the death penalty, only New Jersey uses a different lethal injection protocol, and Nebraska executes only by the electric chair.)

The grant of review in Baze v. Rees (07-543) instantly converted the new Term into a time for high-profile exploration of the most significant unresolved issue on capital punishment — assuming that states will still be allowed to have the death penalty. (Click the following links to read the petition, brief in opposition and reply.) The Court, of course, will not be ruling on whether lethal injection as such is unconstitutional, and certainly not on whether the death penalty in any form is always unconstitutional, but rather will decide the standard for determining whether a particular chemical combination causes too much pain and suffering to be allowed. Still, the fact that the case will be pending may well shut down executions across the country. As Ohio State professor Douglas A. Berman said Tuesday on his Sentencing Law and Policy blog, “This is huge news which could (and probably should) lead to a de facto moratorium on all lethal injection executions nationwide until the Supreme Court issues a ruling.”

The issue at stake is one that the Supreme Court has repeatedly passed up. In decisions in 2004 and 2006, it had ruled that inmates facing execution by lethal drugs could file civil lawsuits to challenge the method in their state, but it had not returned to the issue to judge the outcome in any such case. Three and perhaps four Justices have expressed an interest in the issue, but no review was forthcoming. Since then, according to the petition in the newly granted case, “at least half of the death-sentenced inmates facing an imminent execution have challenged various aspects of the lethal injection process, placing pressure on the lower courts and this Court to resolve this complex issue under the shadow of an execution date.”

What makes this case different, according to attorneys for the two men filing the appeal, Ralph Baze and Thomas C. Bowling, is that the two do not face an impending execution so “this case is not one of those last minute attempts to stave off an execution. Nonetheless, the large number of these types of cases percolating throughout the state and federal courts (both under execution warrant and not) indicates the importance of this Court taking this case to articulate the proper legal standard for determining whether a method of execution (or a portion of it) is cruel and unusual punishment [under the Eighth Amendment].”

The petition sums up the historic gap since the Wilkerson ruling in 1879 this way: “Although nearly 1,100 executions have been carried out since the beginning of 1977, this Court has addressed the constitutionality of a method of execution so long ago that the Bill of Rights had yet to be applied to the states, the right to counsel for indigent defendants was an aberration at best, the concept that the Eighth Amendment involved the evolving standards of decency had yet to be articulated, and anyone who was alive then would be at least 128 years old.”
That recital may have attracted the Justices’ attention, but it seems more likely that the fact that this case did not involve an early execution date may well have been more persuasive. It surely was clear, among the Justices, that the issue would continue to return in prisoner appeals. Indeed, the latest case on the question, Taylor v. Crawford (07-303), just arrived on Sept. 5. The Baze case had been filed July 11.

Since 1976, when the Supreme Court reinstated the death penalty as a constitutional matter, the overwhelming majority of executions have been carried out with lethal drugs — 927 executions, compared to 154 by the electric chair, 11 by the gas chamber, three by hanging and two by firing squad — according to data provided by the Death Penalty Information Center in its current summary.

The two individuals involved in the new case were sentenced to death after being convicted of double murders. Ralph Baze, prosecutors said, ambushed and murdered a Kentucky county sheriff and his duty when they attempted to serve felony warrants in 1992. Thomas Bowling, the state said, killed a couple and wounded their two-year-old son as they sat in their automobile in a business parking lot in 1990. In August 2004, the two filed a lawsuit in Kentucky state court to challenge the drug protocol Kentucky authorizes for execution.

The protocol, the most commonly used in the nation, involves the sequential application of sodiuim thiopental, pancuronium bromide and potassium chloride — first adopted in Oklahoma in 1977 but first used in Texas in 1982.

The central issue that the new petition raises actually must be answered before the Court or any lower court could rule on whether this particular protocol is unconstitutional. Assuming that the Court can agree on a standard, it might not go on to apply that standard in the Baze and Bowling case, but could return their lawsuit to Kentucky state courts for an answer to that queston.

The petition asks the Court to lay down this standard: a method of execution, using legal drugs, violates the Eighth Amendment if it creates “an unnecessary risk of pain and suffering,” rather than the standard the Kentucky Supreme Court relied upon: the Amendment is violated if the method creates “a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death.”

In addition to resolving that dispute, the petition urges the Court to rule that the Amendment is violated in particular when a state has “readily available alternatives” to the existing protocol and those alternatives would “pose less risk of pain and suffering.” The third question directly addressed the validity of the specific three-drug protocol used in Kentucky, in the face of eidence that other chemicals are available to complete executions.

Finally, the appeal raises the issue of whether states have a constitutional obligation to provide a means to revive the condemned individual and spare his life, if the drug protocol has been started but is interrupted by a stay of execution. The trial court in their case ridiculed that argument, suggesting that the inmates’ argument would require “that all executions take place in a trauma center with a team of cardiac surgeons standing by.”

Because of the importance of the case, and its widespread impact, it is expected to attract a wide array of amicus filings, on both sides of the case. The Court put the case on an expedited review schedule, but it appears that the oral argument would not be held before the January sitting, which begins Jan. 4.

The New York Times: Selección del próximo procurador general de EEUU

Attorney General Pick Treads Careful Line at Hearing

By PHILIP SHENON
Published: October 18, 2007
WASHINGTON, Oct. 17 — President Bush’s nominee for attorney general, Michael B. Mukasey, promised on Wednesday to block political meddling at the Justice Department but did not distance himself from the Bush administration’s most controversial antiterrorism policies.

Appearing at a confirmation hearing before the Senate Judiciary Committee, Mr. Mukasey, a retired federal judge from New York, walked a careful line. He tried to assure lawmakers that he would be far more independent of the White House than the previous attorney general, Alberto R. Gonzales, while not backing away from many of the disputed policies that Mr. Gonzales advocated on Mr. Bush’s behalf.

Although Mr. Mukasey disappointed Democrats by not answering many questions about those polices, senators from both parties suggested at the end of a day of testimony that he was all but certain to be confirmed. The tone of the hearing, which will continue Thursday, was polite and cordial, with Mr. Mukasey answering questions in a calm, even voice and smiling occasionally at a senator’s turn of phrase.

Democratic senators welcomed Mr. Mukasey’s promise that he would impose new rules to limit contacts between political figures and the Justice Department. He also said he would not link personnel decisions to political loyalties and would demand that all of the department’s hiring be done “on the basis of competence and ability and dedication and not based on whether somebody’s got an ‘R’ or a ‘D’ next to their names.”

Those remarks were clearly meant to distance Mr. Mukasey from the political scandals that engulfed the department during the tenure of Mr. Gonzales, who dismissed several United States attorneys around the country last year for what appeared to be political reasons.

Mr. Mukasey also pleased the Democrats who control the Judiciary Committee by saying that he considered torture of terrorist suspects to be illegal under American and international law and that the president did not have the authority to order it under any circumstances.

“Torture is unlawful under the laws of this country,” Mr. Mukasey said. “It is not what this country is all about. It is not what this country stands for. It’s antithetical to everything this country stands for.

“Soldiers of this country liberated concentration camps toward the end of World War II and photographed what they saw there as a record of the barbarism we opposed. We didn’t do it that so that we could then duplicate it ourselves.”

He criticized a Justice Department legal opinion issued early in the administration, and since rescinded, that allowed harsh interrogation techniques on terrorist suspects. “It was a mistake,” he said. “It was unnecessary.”

Mr. Mukasey distanced himself from the idea that presidential power during wartime makes it unnecessary to consult Congress, a position espoused by Vice President Dick Cheney and David S. Addington, Mr. Cheney’s chief of staff and former legal counsel.

“I think it’s been obvious from events of the last several years that everybody is better off — the president is better off, the Congress is better off, the country is better off — when everybody’s rolling in the same direction,” he said. “When the president acts pursuant to his authority with help from the Congress, with the tools that the Congress provides, then we don’t have to get into butting heads over who can and who can’t.”

Mr. Mukasey declined to discuss recent news reports that the Justice Department, after rescinding the original opinion on harsh interrogation techniques, produced two secret legal opinions in 2005 that authorized similar techniques in terrorism cases.

He said he could not comment on the later memorandums because he had not read them; he said he intended to review them early in his tenure at the Justice Department.

When Senator Charles E. Schumer, Democrat of New York, suggested in his questioning that the 2005 opinions might authorize torture, Mr. Mukasey stopped him. “You characterize it as torture,” he said. “I do not know of such a policy, and I hope not to find them.”

Nor would he comment in detail on the legality of the program of eavesdropping without warrants that was authorized by Mr. Bush shortly after the Sept. 11 attacks and has been strongly criticized by civil liberties groups and lawmakers from both parties as possibly unconstitutional.

“I am not familiar with that program,” said Mr. Mukasey, who knew enough about the program to refer to it as the Terrorist Surveillance Program, the name preferred by the White House.
The program remains highly classified, and Mr. Mukasey suggested that he had not given information since his nomination last month about how the National Security Agency program operates. “For me to make a categorical statement with regard to that program one way or the other, I think, would be enormously irresponsible,” he said.

Whatever their concern about some of his answers on national security issues, senators from both parties appeared eager to vote to confirm Mr. Mukasey and have him go to work at the Justice Department as quickly as possible given the turmoil left there by Mr. Gonzales.
“This nomination can begin the repair process” said Senator Patrick J. Leahy, Democrat of Vermont, who is chairman of the Judiciary Committee and who led the effort to oust Mr. Gonzales.

Senator Arlen Specter of Pennsylvania, the committee’s ranking Republican, told Mr. Mukasey that the department “urgently needs a restoration of integrity and honesty and independence.”
“We have seen a situation where there have been serious allegations of political influence,” Mr. Specter said, “and it is very important that those matters be cleared up.”

“Going right to the heart of the matter,” he continued, “are you prepared to resign if the president were to violate your advice — in your view, violate the Constitution of the United States on an important matter?”

Mr. Mukasey replied: “That would present me with a difficult but not a complex problem. I would have two choices. I could either try to talk him out of it — or leave. Those are the choices.”

Mr. Specter reframed the response: “If the alternative is to leave if you can’t talk him out of it, then I think the answer to my question is yes.”

Mr. Mukasey nodded. “It is,” he said.