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States to try new ways of executing prisoners. Their latest idea? Opioids.

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The synthetic painkiller fentanyl has been the driving force behind the nation’s opioid epidemic, killing tens of thousands of Americans last year in overdoses. Now two states want to use the drug’s powerful properties for a new purpose: to execute prisoners on death row.
As Nevada and Nebraska push for the country’s first fentanyl-assisted executions, doctors and death penalty opponents are fighting those plans. They have warned that such an untested use of fentanyl could lead to painful, botched executions, comparing the use of it and other new drugs proposed for lethal injection to human experimentation.
States are increasingly pressed for ways to carry out the death penalty because of problems obtaining the drugs they long have used, primarily because pharmaceutical companies are refusing to supply their drugs for executions.
The situation has led states such as Florida, Ohio and Oklahoma to turn to novel drug combinations for executions. Mississippi legalized nitrogen gas this s…

Are long death penalty delays unconstitutional?

On Monday, the Supreme Court rejected Richard Boyer’s petition for review of a federal appeals court ruling that, in turn, rejected his argument that California’s long (and continuing) delay in carrying out his death sentence amounts to cruel and unusual punishment.

Dissenting from that denial in Boyer v. Davis, Justice Stephen Breyer strongly suggested that he would find a constitutional violation in the 32 years that Boyer has been on death row.

To Court watchers, the Breyer dissent was hardly surprising. Last year, in a dissent from a decision upholding Oklahoma’s lethal injection protocol, Justice Breyer called on his colleagues to reconsider the constitutionality of the death penalty.

Justice Breyer offered long delay as one of the chief reasons for concluding that the death penalty is unconstitutional. He cited statistics showing an average delay of 18 years between sentence and execution. He calculated that at current rates, “the average person on death row would spend an additional 37.5 years there before being executed.” Thus, Boyer’s case is hardly an outlier.

But why is delay problematic? Don’t death row prisoners benefit from execution delays? Would a death row prisoner be better off being swiftly executed?

According to Justice Breyer, long delays are problematic for two reasons. First, life on death row is miserable. Quoting an earlier dissenting opinion by Justice John Paul Stevens, Breyer wrote that delay “subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement,” aggravated by the anxiety caused by uncertainty about whether and when execution will occur.

Second, Breyer argued that long delay undermines the retributive interest served by, and any deterrent value of, the death penalty.

Unsurprisingly, Justice Breyer’s call for re-examination of the validity of the death penalty did not go unanswered. In particular, the late Justice Antonin Scalia wrote a characteristically spirited response. At one point he even said that Justice Breyer’s dissent was full of “gobbledy-gook.”

Without attempting a point-by-point rebuttal of Scalia’s concurrence in the Oklahoma case, I want to respond to what may strike readers as his best argument: Execution delays are chiefly the result of the extensive procedures that the Court’s liberals have required for carrying out an execution; those same liberals should not be permitted to bootstrap those delays to invalidate the death penalty.
What Causes Delay?

The premise of the anti-bootstrapping objection may be wrong. It is not obvious that all or even most of the delay between a death sentence and the execution of the condemned results from legal requirements imposed by the Supreme Court.

For example, Justice Breyer notes in his Boyer dissent that Boyer’s first jury could not reach a verdict, that a second trial resulted in a conviction that was ultimately reversed by the California Supreme Court based on police misconduct and that the time between the commencement of Boyer’s third trial and the final state court disposition of his appeal was 14 years.

Justice Breyer quotes a California commission that found that the state’s own system for administering the death penalty was “dysfunctional.” Most of that dysfunction is not attributable to requirements imposed by federal judges or justices.

Indeed, in recent decades, Congress and the Supreme Court have reduced the procedural obstacles to imposing and carrying out the death penalty, chiefly by cutting back on the scope of federal habeas corpus.

The most important cutbacks were contained in the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). Among other things, AEDPA places a one-year statute of limitations on the filing of habeas petitions—which can be shortened to six months if a state complies with certain optional procedures.

Would it be possible to streamline capital proceedings? Sure. China and Iran carry out executions swiftly, with the entire period from arrest to execution taking much less time than the amount of time a typical American prisoner spends on death row. But these countries also hold trials in secret without what we would regard as even minimal due process.

Click here to read the full article

Source: Newsweek, Opinion, Michael C. Dorf, May 6, 2016

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