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Will the Supreme Court Kill The Death Penalty This Term?

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Will the U.S. Supreme Court add the fate of the death penalty to a term already fraught with hot-button issues like partisan gerrymandering, warrantless surveillance, and a host of contentious First Amendment disputes?
That’s the hope of an ambitious Supreme Court petition seeking to abolish the ultimate punishment. But it runs headlong into the fact that only two justices have squarely called for a reexamination of the death penalty’s constitutionality.
Abel Hidalgo challenges Arizona’s capital punishment system—which sweeps too broadly, he says, because the state’s “aggravating factors” make 99 percent of first-degree murderers death-eligible—as well as the death penalty itself, arguing it’s cruel and unusual punishment.
He’s represented by former acting U.S. Solicitor General Neal Katyal—among the most successful Supreme Court practitioners last term. Hidalgo also has the support of several outside groups who filed amicus briefs on his behalf, notably one from a group including Ari…

Nebraska: Death penalty issues enter legal thicket

A last-minute change in Nebraska's new protocol for executions moves the process back into public view, where it should be so taxpayers can monitor what government is doing in their name.

The final protocol, which has been signed by Gov. Pete Ricketts, will allow taxpayers to know the identity of the person, company or entity supplying the execution drugs.

It allows the Corrections Department to use whatever appropriate lethal injection drugs are available and would give an inmate with a scheduled execution information on what drugs would be used and in what quantity 60 days before a request for a death warrant.

An open and transparent execution process is important to the public because discussion continues on various aspects of the death penalty and whether Nebraska's system will meet "the evolving standards of decency which mark the progress of a maturing society," as Chief Justice Earl Warren of the U.S. Supreme Court wrote in 1958.

At issue is whether Nebraska's system would constitute cruel and unusual punishment, which is banned by the Eighth Amendment to the U.S. Constitution.

Some advocates of the death penalty, however, apparently are uncomfortable with the transparency of the new protocol.

Sen. John Kuehn of Heartwell has introduced a bill that would allow the state to keep the record confidential if it would lead to disclosure of the person or entity that manufactures, supplies, compounds or prescribes the execution drugs.

Other states, including Texas and Missouri, currently shroud their executions in secrecy, and use pentobarbital made by an anonymous compounding pharmacy as part of their protocol. The only injectable form of the drug licensed for sale in the U.S. is Nembutal, made by a firm which refuses to sell it to prisons.

It won't be easy for Nebraska officials to devise a workable system that can survive legal challenges.

The history of the death penalty is one of constant evolution. The last person to be executed in Nebraska died in the electric chair. Electrocution subsequently was ruled to constitute cruel and unusual punishment by the state Supreme Court.

Meanwhile court rulings in other parts of the country continue to constrict the implementation of the death penalty. Last year only 20 people were executed nationwide, and only 30 were sentenced to death.

In the wake of the November vote in Nebraska the most important discussions on the immediate future of the death penalty will take place in a courtroom.

Legal challenges will multiply if the Legislature allows what amounts to an executioner's hood in the new process for putting a convict to death. How could it be otherwise with a system that is demonstrably fallible and arbitrary?

Source: Lincoln Journal Star, Editorial Board, February 5, 2017

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