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Death Penalty Opponents See Litigation Roadmap in Lethal Injection Decision

Posted Apr 17, 2008 5:48 AM CDT
By Debra Cassens Weiss

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Lawyers for death row inmates will try to show that the lethal injection procedures in their states are different from Kentucky’s after yesterday’s U.S. Supreme Court decision upholding the state’s three-drug execution cocktail.

The plurality opinion by Chief Justice John G. Roberts Jr. said states with execution methods “substantially similar” to Kentucky’s do not violate the Constitution’s ban on cruel and unusual punishment.

Elisabeth Semel, the director of the Death Penalty Clinic at the University of California at Berkeley, told the New York Times the decision provides a roadmap for challenges. “I think it opens the door,” she said.

George H. Kendall, a lawyer with Holland & Knight in New York City, predicted that Southern states with large death rows will act quickly to resume executions while more liberal states will remain reluctant to execute as lawyers mount new challenges.

Gov. Tim Kaine of Virginia has already announced he is lifting a moratorium on executions, the New York Times reports in a separate story.

Roberts said an inmate who challenges a death penalty method cannot succeed “merely by showing a slightly or marginally safe alternative.” Instead, there must be proof that better options would prevent a “substantial risk of serious harm.”

Now lawyers will argue that the methods in their states are flawed and different from Kentucky's. That was the worry of Justice Samuel A. Alito Jr. He signed Roberts’ opinion but wrote separately to say it could be misinterpreted and regarded as an invitation to “litigation gridlock.”

Thirty-five other states and the federal government provide for lethal injections.

Updated at 2:13 p.m. to attribute prediction to George Knight.

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