FindLaw.com guest commentator Carl Tobias, A University of Richmond law prof, has, "The Constitution, Capital Punishment and Clemency Proceedings."
Three critical developments recently occurred that will propel increasing scrutiny of lethal injections, the method used by the federal government and practically all states for executing death-row inmates.
First, Governor Jeb Bush (R-Fla.) suspended all executions in Florida, after prison officials botched the execution of Angel Diaz, and appointed a commission to analyze the lethal injection process. Second, U.S. District Judge Jeremy Fogel found that California's "implementation of lethal injections is broken" and urged that it be revamped. Third, the Maryland Court of Appeals held that the state's lethal injection protocol had been adopted in a procedurally deficient manner and suspended all executions in Maryland until the defect is remedied.
These developments received greater notoriety than related action by Virginia Governor Tim Kaine that may prove equally important to the national debate over capital punishment.
Governor Kaine recently honored the Constitution by invoking clemency power to postpone Percy Walton's scheduled execution because of significant questions about his mental competence. Kaine found Walton's mental status critical because the U.S. Supreme Court held execution of incompetent people unconstitutional in the 1986 Ford v. Wainwright case.
Justice Lewis Powell stated the Eighth Amendment forbids executing "those who are unaware of the punishment they are about to suffer and why they are to suffer it," because execution would be a "uniquely cruel penalty," if persons could not understand they would die and "prepare, mentally and spiritually."
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