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Analysis: The Baze sequels — a single pattern

Analysis

The Supreme Court, without a specific explanation of why it was doing so, chose a single path on Monday in dealing with the first group of death penalty cases to be considered since its ruling in Baze v. Rees (07-5439) on April 16, upholding execution by lethal drugs.  Although the 11 cases acted upon Monday came in several forms and arose at different stages, the Court issued brief orders refusing to hear 10 of them (and refusing to rehear an eleventh, previously denied).

Lawyers for one of the death-row inmates, Earl Wesley Berry of Mississippi, had filed a supplemental brief on April 17 — the day before his case was before the Justices in Conference — and the brief apparently was distributed to the Court the same day. The new brief had argued that Mississippi lethal-injection procedure was quite different from the Kentucky procedure upheld in Baze.  So, his lawyers urged the Court to at least return the case to the Fifth Circuit Court to consider that difference.  The Court’s order denying his petition — and thus automatically vacating a stay of execution that had been issued Oct. 30 — made no mention of the new brief.

The Court also denied review — and thus lifted earlier stays of execution — for Thomas D. Arthur of Alabama and Carlton A. Turner of Texas.  The other eight cases involved inmates for whom no execution date had been set.

Of the 11 cases turned aside Monday, five were challenges to state Supreme Court rulings against the inmates, and six were challenges to federal appeals court rulings, thus reflecting the array of forums in which the lethal injection mode of execution were variously challenged.

 Ohio inmates had brought cases to the Court, among this list, challenging rulings by both the state Supreme Court there and by the Sixth Circuit Court.  Two of the three Georgia cases disposed of were from the state Supreme Court, and one from the Eleventh Circuit Court.

The Court still has pending on its docket three other cases in which the Justices had postponed scheduled executions.  There is no reason to expect that the outcome will be any different than it was on Monday for Arthur, Berry or Turner.

The simple denials of review like those in the first group Monday will have the effect of making final the lower court decisions that were being tested.  This will create some difficulty for defense lawyers hoping to find ways to make new challenges to executions by lethal drugs.  Some inmates will be bound by the judgments of the courts against them, others will have used up their option of filing a post-conviction challenge (either by habeas or through a civil rights claim), so there could be significant procedural hurdles in the way of new claims.

Justice John Paul Stevens, who announced in Baze that he now believed the death penalty was unconstitutional, actually joined in all of the denials of review on Monday.  In two of the cases, while noting that he agreed with the denial, Stevens wrote to caution that this action should not be interpreted as a ruling on the merits of any of the cases.

It is apparent, though, that Stevens will not follow the path that two former Justices did after deciding for themselves that the death penalty was unconstitutional — dissenting in every case where a challenge was rejected. That was the position Justices William J. Brennan, Jr., and Thurgood Marshall routinely followed.  Stevens has indicated he feels bound by the Court’s precedents — whether or not he now believes that any or them was wrongly decided.Â