Death penalty doomed? ---- Slowdown in executions offers nationwide chance to test public attitudes

Associated Press

November 3, 2007

Stop executions for a while and perhaps they can be stopped forever. That calculation has been part of the strategy of capital punishment opponents
for decades.

The Supreme Court-inspired slowdown in executions offers the 1st nationwide opportunity in 20-plus years to test whether the absence of regularly scheduled executions will lead some states to abandon the death penalty and change public attitudes about capital punishment.

Recent decisions by judges and elected officials have made clear that most
executions will not proceed until the Supreme Court rules in a challenge
by two death row inmates to the lethal injection procedures used in
Kentucky. The inmates say Kentucky's method creates the risk of pain
severe enough to be cruel and unusual punishment, banned by the Eighth
Amendment.

Similar procedures are used in Texas, the far-and-away leader in lehtal
injections, and the 16 other states that have executed prisoners in the
past 2 years.

It is clear the high court will not go so far as to outlaw the use of
lethal injections. That issue is not even before the court in the Kentucky
case.

Rather, the justices could decide whether Kentucky's procedures violate
the Constitution and what standard the courts should use to evaluate the
risk a prisoner will feel pain as he or she is put to death.

No matter how the court rules, it appears there will be few, if any
prisoners executed before the court rules, probably by late June. Just
this week, the Supreme Court halted an execution in Mississippi less than
an hour before a convicted killer was scheduled to be put to death by
lethal injection. He had asked for a delay at least until the court
decides the Kentucky case.

"We're probably looking at delaying executions, not preventing them," said
Ronald Tabak, a New York-based lawyer with the Skadden Arps firm who has
represented death row inmates.

Tabak said states with the death penalty now have a chance to review
capital punishment procedures. The American Bar Association has for the
past 10 years called for such a freeze and review.

"The ABA's position is unless you have fair practices, exceutions should
not resume," said Tabak, who has worked with the lawyers' organization on
this issue.

But Douglas Berman, a sentencing expert at the Ohio State University law
school, said the possibility exists for more dramatic action.

"The abolitionists will say if we have no executions for six months to a
year, and the universe is not imploding and murder rates are not going
through the roof, ... it becomes easier to say, "Why do we even need the
death penalty, let's just get rid of it," Berman said.

"Texas and other high-execution states aren't going to get there anytime
soon, but the argument against capital punishment gets even more force in
those states squeamish about the death penalty in the first instance,"
Berman said.

Questions about the administration of lethal injections are only part of
the equation.

Death-penalty opponents also have pointed to doubts about the competence
of some court-appointed defense lawyers and the rise in the number of
exonerations through DNA evidence of people already convicted of crimes.

Polling has shown that the public increasingly believes that life in
prison without parole will keep the worst offenders off the streets. A
recent Associated Press-Ipsos poll that asked what method of punishment
people prefer for murderers found only a slight preference for the death
penalty over life in prison - 52 % to 46 %.

"There is a deeper societal appreciation for life without the possibility
of parole. Ten to 15 years ago, no one thought they meant it," Berman
said.

At the same time, there have been several studies, challenged by the
anti-death penalty camp, that have shown a deterrent effect in the use of
capital punishment. Also, public support for executions remains high. More
than two-thirds of those polled favor the death penalty for murderers when
the question does not include other possible punishments.

Then there is the example of the last time the country went without
executions for an indefinite period. There were no executions from June
1967 to January 1977.

The Supreme Court in 1972 struck down 40 state death penalty laws, but did
not ban capital punishment as cruel and unusual.

Some justices at the time thought their decision in Furman v. Georgia
would bring an end to the death penalty.

By 1976, though, in the midst of a "law and order" backlashto the court's
decision in favor of the rights of criminal defendants, elected officials
in 35 states had adopted laws to comply with the death penalty ruling. A
more conservative court upheld some of those laws, and a half-year later
executions resumed.

Nearly 1,100 people have been put to death since 1977 and more than 3,000
others are on death row.

Earlier this week, the Ohio Supreme Court ruled that a judge can hold
hearings on whether Ohio's lethal injection procedures are constitutional.

The court ruled 5-2 that Judge James Burge of Lorain County Common Pleas
Court has the authority to hold the hearings and to order the state to
turn over documents related to the execution process. The court rejected
the state's argument that Burge, as the presiding judge of a criminal
trial, does not have the authority to decide the constitutionality of
death penalty law.

Burge has ordered the state to produce detailed explanations of the
equipment and procedures used during executions, including an "exhaustive
and detailed" list of the qualifications and training of the state's
execution team.

Burge has ordered the hearings in the case of Ruben Rivera, charged in the
2004 shooting death of Manuel Garcia. Rivera asked Burge to drop the death
penalty aspects of his case on the grounds that the state's lethal
injection process amounts to cruel and unusual punishment.

Since then, two other Lorain County defendants facing death penalty
charges have made similar requests of other judges.

***

ABA CITES PROBLEMS IN STATE DEATH PENALTY SYSTEMS

Serious problems in state death penalty systems compromise fairness and
accuracy in capital punishment cases and justify a nationwide freeze on
executions, the American Bar Association says.

Problems cited in a report released in Washington Sunday by the lawyers'
organization include:

Spotty collection and preservation of DNA evidence, which has been used to
exonerate more than 200 inmates.

Misidentification by eyewitnesses.

False confessions from defendants.

Persistent racial disparities that make death sentences more likely when
victims are white.

The report is a compilation of separate reviews done over the past 3 years
of how the death penalty operates in 8 states: Alabama, Arizona, Georgia,
Florida, Indiana, Ohio, Pennsylvania and Tennessee.

Teams that studied the systems in Arizona, Florida and Pennsylvania did
not call for a halt to executions in those states. But the ABA said every
state with the death penalty should review its execution procedures before
putting anyone else to death.

In September, the ABA sent a nearly 500-page report to Ohio Gov. Ted
Strickland, asking him to halt executions to allow for a review of the
state's death penalty system. The ABA's report followed a 30-month
examination in which the ABA said Ohio met only four of the ABA's 93
recommendations to ensure a fair death penalty system.

"After carefully studying the way states across the spectrum handle
executions, it has become crystal clear that the process is deeply
flawed," said Stephen F. Hanlon, chairman of the ABA Death Penalty
Moratorium Implementation Project. "The death penalty system is rife with
irregularity."

The ABA, which takes no position on capital punishment, did not study
lethal injection procedures that are under challenge across the nation.
The procedures will be reviewed by the Supreme Court early next year in a
case from Kentucky.

State and federal courts have effectively stopped most executions pending
a high court decision.

Prosecutors and death penalty supporters have said the eight state studies
were flawed because the ABA teams were made up mainly of death penalty
opponents.