'Nuff said

(Taking context-optional note of thought-provoking quotes)

Arkansas Supreme Court (credit)

'It is evident to this court that the legislature has abdicated its responsibility and passed to the executive branch, in this case the [Arkansas Department of Correction], the unfettered discretion to determine all protocol and procedures, most notably the chemicals to be used, for a state execution. The [Method of Execution Act] fails to provide reasonable guidelines for the selection of chemicals to be used during lethal injection and it fails to provide any general policy with regard to the lethal-injection procedure. Despite the fact that other states may analyze similar statutes differently according to their respective constitutions, we are bound only by our own constitution and our own precedent.'

–  Judgment in Hobbs v. Jones, a decision (available in full here), issued yesterday, in which a 4-member majority of the Arkansas Supreme Court ruled a 2009 lethal-injection law to violate the Arkansas Constitution; specifically, its guarantee of separation of powers. Justice Karen R. Baker (above at far left) wrote the 2-member dissent, while Justice Courtney Hudson Goodson (above at far right) voted with the majority. The judgment sends the fate of the 40 men now on death row in Arkansas back to the legislature.

Secrecy, rights, and capital punishment

This morning the Supreme Court took on the 1st of 2 cases this Term that pose broad-based challenges to capital punishment in the United States.
Argument was heard in Baze v. Rees. As is evident in the audio tape and transcript, it calls upon the Justices to determine whether the procedure, or "protocol," that the state of Kentucky uses to execute by means of lethal injection violates the 8th Amendment ban on cruel and unusual punishments. (In the just-granted 2d case, Kennedy v. Louisiana, to be heard in April, the Court will consider whether the 8th Amendment forbids execution for rape of a child that does not result in the child's death.)
As the Los Angeles Times' Henry Weinstein reports, judges have ruled lethal injection protocols unconstitutional in California, Missouri and Tennessee. Weinstein's article focuses on the treatment of the execution procedures as state secrets; it quotes from this passage by our colleague Alison J. Nathan (right):

'What we know about how states and the federal government currently execute people in the United States is deeply troubling. But the real danger of lethal injection as currently practiced lies in what we do not know.'

Executions are news in China, too. The 1,051 executions in that country in 2006 constituted 2/3 of all capital punishments that year. "Yet because of state secrecy some activists believe that the number of executions could be as high as 10,000 to 15,000 a year" in China, according to another Los Angeles Times report. That's been a criminal punishment constant in China; what's news is this: China's believed to have "scaled back the pace of executions" in the runup to this summer's Beijing Olympics. The Times' John M. Glionna writes:

The reforms, advocated by a growing lobby of Chinese lawyers and scholars, are part of a policy that officials call 'kill fewer, kill carefully.' It calls for improved trial and review processes, and requires that all death penalty appeals be heard in open court.

If true, it's further evidence of the odd and incremental, though not unwelcome, event we noted earlier: a linkage between the Olympics and human rights.

A world of discussion about the death penalty

Often an item on international agenda, capital punishment is again a topic of legal discourse inside the United States.
Views from elsewhere:
Of the 47 states comprising the Council of Europe, 46 have ratified Protocol No. 6 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, which abolishes the death penalty in nearly all circumstances (Russia's the lone holdout). Nearly all are states parties to Protocol 13, which puts a total ban on the penalty. Ratification of similar treaties in other regions, such as the inter-American system, is less consistent. Last week, as our Opinio Juris colleague Kevin Jon Heller posted, the Third Committee of the U.N. General Assembly's given its support, by a vote of 99 "yes," 52 "no," 33 "abstain" -- to a draft resolution calling for abolition of capital punishment. For news media at home and abroad, the United States' opposition to the draft was taking "sides with Iran and Sudan"; it was, in the rough words of Der Spiegel, "in bed with dictators."
It's against this backdrop that U.S. discussion's heating up at 2 different sites:
1st is the U.S. Supreme Court. It's considering the constitutionality of the methods that states use to execute condemned persons by lethal injection, the means employed in nearly every state that retains the death penalty. Oral argument will take place on January 7, 2008, in Baze v. Rees, the case whose pendency appears to have effected a de facto national moratorium on executions, although on a case-by-case rather than across-the-board basis. (Nor may this be the Court's only opportunity to mull the death penalty this Term. The Court likely soon will consider a petition to review a challenge to a state law authorizing execution as punishment for a nonfatal sexual assault on a child, Kennedy v. Louisiana, according to a SCOTUSblog report.)
2d is the American Law Institute, an association of lawyers, judges, and academics devoted to the study and drafting of law-reform measures. A current project involves revisions in the sentencing provisions of the Model Penal Code that ALI promulgated in 1962. Inclusion in the Code of a detailed framework for adjudicating the death sentence had the unintended effect of legitimating the decision of some U.S. states to retain rather than abolish the punishment, as Professor Franklin E. Zimring's detailed in The Unexamined Death Penalty: Capital Punishment and Reform of the Model Penal Code. Last spring, 2 other ALI members, Professors Ellen S. Podgor and Roger S. Clark, moved to have ALI state its opposition to capital punishment. Their motion sparked further debate, in the form of: a report from an Ad Hoc Committee on the possibility of future study of the death penalty, in a project separate from the sentencing project now under way; and, from now through this Sunday, November 25, conduct of an online forum on what to do next. Several ALI members already have weighed in on various sides, among them IntLawGrrls Elizabeth Hillman, Mary Coombs (our alumna), and yours truly. If you're an ALI member who hasn't yet done so, log on and add your 2¢ here.