Cruel and Unusual Punishment and Lawlessness: Thy Name is Texas!

What can one say, after all it is Texas which was once governed by the “Torture President!”

From the NYT’s:

September 29, 2007

Texas Planning New Execution Despite Ruling

By RALPH BLUMENTHAL and LINDA GREENHOUSE

HOUSTON, Sept. 28 — A day after the United States Supreme Court halted an execution in Texas at the last minute, Texas officials made clear on Friday that they would nonetheless proceed with more executions in coming months, including one next week.

Though several other states are halting lethal injections until it is clear whether they are constitutional, Texas is taking a different course, risking a confrontation with the court.

“The Supreme Court’s decision to stay convicted murderer Carlton Turner’s execution will not necessarily result in an abrupt halt to Texas executions,” said Jerry Strickland, a spokesman for Attorney General Greg Abbott of Texas. “State and federal courts will continue to address each scheduled execution on a case-by-case basis.”

Shortly before midnight on Thursday, the Supreme Court stayed the execution of Mr. Turner, who had been scheduled to become the 27th Texas inmate executed this year by lethal injection in Huntsville.

Although the court gave no reason for its order, Mr. Turner, convicted of murdering his adoptive parents in 1998, had appealed to the court after it agreed Tuesday to consider the constitutionality of lethal injection, the most commonly used method of execution in the United States.

Several legal experts said the Supreme Court reprieve would be seen by most states as a signal to halt all executions until the court determined, probably some time next year, whether the current chemical formulation used for lethal injections amounts to cruel and unusual punishment barred by the Eighth Amendment.

Eleven states had halted executions for that reason. On Thursday, Alabama stayed an execution for 45 days to come up with a new formula.

“There is a momentum quality to this,” said Douglas A. Berman, a law professor at Ohio State University who has a blog, Sentencing Law and Policy. “Not only the Supreme Court granting the stay, but also the Alabama governor doing a reprieve that is likely to lead to other states with executions on the horizon waiting to see what the Supreme Court does. I’ll be surprised if many, and arguably if any states other than Texas, go through with executions this year.”

On his blog on Friday, Professor Berman predicted that there would be few if any executions in the country for the next 9 to 18 months, while the court deliberates and, later, as lower courts parse the meaning of its eventual ruling.

Texas, which has a history of confrontations with the Supreme Court over its prerogatives in criminal justice, does not appear interested in waiting. That forces lawyers for condemned prisoners to appeal each case as high as the Supreme Court.

Four more executions are scheduled in Texas over the next five months. The next inmate, who is to be executed, on Oct. 3, is Heliberto Chi, 28, a Honduran convicted of murdering the manager of a men’s clothing store in a Dallas suburb, Arlington, in a robbery in 2001.

A lawyer here who represents Hondurans in the United States, Terence O’Rourke, has said Mr. Chi’s execution would violate international law.

Mr. Chi’s lawyers are almost certain to appeal to the Supreme Court on the same grounds as Mr. Turner, also 28, used in his successful appeal. The court said this week that it would consider the legality of the injection formula used in Kentucky. Texas uses a virtually identical formula.

Andrea Keilen, executive director of the Texas Defender Service, a law firm that represents prisoners, said the message of the reprieve on Thursday was clear. “In the coming months,” Ms. Keilen said, “lethal injection could be found to be cruel and unusual punishment, and Texas should wait for that decision instead of proceeding with potentially unconstitutional executions.”

David R. Dow, a law professor at the University of Houston who handled Mr. Turner’s appeal, said it was still too early to proclaim that a de facto national moratorium was in place. If Mr. Chi’s case goes to the high court and it issues a stay, Professor Dow said, that would clearly indicate that the justices will grant such appeals until a final decision is made.

He said he expected the Texas Court of Criminal Appeals to agree eventually and begin granting the stays itself, removing the need to go to the Supreme Court. The Texas court split, 5 to 4, on Thursday in denying Mr. Turner’s appeal.

A similar de facto moratorium on executions was in place for several years in the late 1960s and early ’70s, as it became apparent that the Supreme Court was preparing to rule on the constitutionality of the death penalty. There was nothing official, but lower courts routinely delayed their cases or granted stays of execution.

The court’s eventual ruling, in Furman v. Georgia in 1972, did end capital punishment in the United States for four years, until the court approved new state death penalty laws in a series of cases in 1976.

The current challenge to the death penalty is on a much less fundamental level. Even if the Supreme Court rules in favor of the two Kentucky inmates who brought the challenge to lethal injection, the result will not be to overturn any death sentences, but rather, at the most, to require a different method to carry them out.

The stay for the Texas execution was issued two days after the court did not stop Texas from executing another inmate, Michael Richard, leading to some confusion about its intentions.

Lawyers in the case on Tuesday said their appeal had been turned down because of an unusual series of procedural problems.

Professor Dow said the computers crashed at the Texas Defender Service in Houston while lawyers were rewriting his appeal to take advantage of the high court’s unexpected interest in lethal injection.

Because of the resulting delay, the lawyers missed by 20 minutes the 5 p.m. filing deadline at the Texas Court of Criminal Appeals in Austin, where the appeal had to go first before moving to the Supreme Court.

The Texas court refused their pleas to remain open for the extra minutes. Because the lawyers missed that crucial step, Professor Dow said, the Supreme Court had to turn down the appeal, and Mr. Richard was executed.

But on Thursday, with a more carefully crafted appeal for Mr. Turner, and the Texas court’s closely split rejection, the Supreme Court called a halt to another lethal injection.

Well, some folks seem to think that the Supreme’s decision to review the constitutionality of “Lethal Injections” would put a halt to the practice until the Court decides whether the practice does or doesn’t violate the U.S. Constitution.

But those folks would be wrong and clearly do not understand the “Family Values” and “Rule of Law” environment in that Great Christian Republic of Texas.