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.

No stomach for capital punishment

It's said in West Coast legal circles that Californians like to hand down the death penalty, but they haven't the stomach to carry it out. But now, 1 California-based federal appellate judge wants to help his state find that stomach.

The Los Angeles Times' Henry Weinstein reports on the suggestions to streamline and expedite executions that death penalty proponent Arthur L. Alarcón, a former Los Angeles prosecutor now a Senior Judge for the U.S. Court of Appeals for the Ninth Circuit, has set forth in "Remedies for California's Death Row Gridlock," 80 Southern California Law Review 697 (May 2007).

Statistics indeed show that much is awry:

► 667 inmates are on death row, adjacent to the lethal-injection chamber at San Quentin Prison in California's Bay Area (left).

► 88 have no lawyer, on account of a chronic shortage of attorneys willing and able to take death cases.

► Some prisoners have been on death row since 1978, when the state, in the wake of the Supreme Court's revival of the death penalty in Gregg v. Georgia (1976), enacted a new death penalty law.

► The 1st execution after enactment of that law came 14 years later, in 1992.

► Since then there've been 12 more executions, fewer than 1 a year.

► More condemned prisoners have died from natural causes -- 38 -- or suicide -- 14 -- than by execution.

► The longest stay on death row before execution was 24 years 8 months; the shortest, 9 years 7 months.

Alarcón would jumpstart the system in part by a shift of the automatic review process from the state's Supreme Court to its intermediate appellate courts and by "a major infusion of cash," intended to attract more defense lawyers.

More lawyers would lead to more litigation, and not only of the lethal injection challenges that've stalled executions in California for well over a year. Also likely: further pressing of a claim familiar to international lawyers. The claim's won favor in the European Court of Human Rights and, to cite a few examples, Britain's Privy Council and India's and Zimbabwe's highest courts. To date, however, it's caught the eye of only Justices John Paul Stevens and Stephen G. Breyer on the U.S. Supreme Court. It is, of course, the "death row phenomenon" claim that holding a person under sentence of death for years at a time is itself punishment violative of fundamental rights. It's a claim that last year the Ninth Circuit avoided in the case of the last man executed, on account of procedural default, and 1 that, as Alarcón observes in his 12th footnote, California's Supreme Court dodged in People v. Hill, 839 P.2d 984 (1992). Notably, the dodge came 20 years after the same court wrote in People v. Anderson, 493 P.2d 880, words that seemed to presage the death row phenomenon decisions that elsewhere would follow:

The cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due process of law are carried out.