• SPRING 2008
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supreme court update

For decades, capital punishment in the United States seemed on an irrevocable downward trend. It was conventional wisdom that it was only a matter of time before an “evolving” sense of decency would cause America to join the mainstream of nations that have banned the death penalty. Now, however, those assumptions may be in need of revision.

Consider, first, that on April 15, Amnesty International reported that for the year 2007, 88 percent of all known executions took place in just five countries: China, Iran, Saudi Arabia, Pakistan and … the United States (with 42). Then note that the following morning the Supreme Court issued its 7-2 ruling in Baze v. Rees, No. 07-5439, and effectively gave the green light to the dozens of executions that had been put on hold in states across the nation pending the Supreme Court’s consideration of an Eighth Amendment challenge to the lethal injection method of execution – the method favored by the federal government and 35 states with the death penalty.

Finally, consider that immediately after announcing its ruling in Baze, the Court proceeded to hear arguments in another death penalty case, Kennedy v. Louisiana, No. 07-343. And note that, judging by the oral argument transcript, the justices were generally less than sympathetic to the contention of Kennedy, a death row inmate, that Louisiana should not be allowed to expand the death penalty to cover more crimes than just first-degree murder.

Taken together, then, there is evidence that the death penalty is in good health and looking forward to a long life.

First, in its April 16 decision in Baze, the Court noted that, when it comes to executing prisoners in the United States in ever-more humane ways, the popular hangman’s noose was gradually replaced by firing squads, gas chambers, and electric chairs until finally, beginning in the 1970s, almost all executions were accomplished through the administration of lethal drugs. None of these protocols have ever been declared “cruel and unusual.”

Writing for the Court, Chief Justice Roberts then rejected the arguments pressed by two Kentucky death-row inmates who contended that the Eighth Amendment bans the lethal injection methods being practiced in their state. The inmates based their argument on evidence that Kentucky’s methods pose a greater risk of causing pain and suffering than other possible methods of killing them. In their brief, the inmates acknowledged that the lethal injection procedure would result in an essentially pain-free death if implemented as intended and without any errors. But the risk of significant pain comes from the fact that the Kentucky procedures are subject to possible human error.

Kentucky’s lethal-injection procedure calls for the use of three drugs: first a fast-acting barbiturate (sodium thiopental) designed to render the prisoner unconscious; then a neuromuscular blocking agent or paralytic (pancuronium bromide) “that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration”; and lastly a third drug designed to cause cardiac arrest (potassium chloride). Any of several possible errors in the administration of the first barbiturate could render an execution extremely painful, although (because of the paralyzing effect of the second drug) the dying inmate wouldn’t be able to express that pain.

The inmates recommended the state be ordered to consider adopting a “one-drug protocol” and “additional monitoring by trained personnel to ensure that the first dose of sodium thiopental has been adequately delivered.”

Chief Justice Roberts concluded, however, that “a condemned prisoner cannot successfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative.” That approach, the Chief Justice reasoned, would transform courts into boards of inquiry charged with determining “best practices” for executions, “with each ruling supplanted by another round of litigation touting a new and improved methodology.”

Justice Ginsburg dissented, writing “I would not dispose of the case so swiftly given the character of the risk at stake.” She noted that there is no scientific doubt that the second and third drugs in the Kentucky protocol would cause a conscious inmate to suffer “excruciating pain.” Therefore, she reasoned, Kentucky’s three-drug protocol can only be constitutional if executed inmates are first adequately anesthetized by the first drug, sodium thiopental. And since Kentucky’s protocol lacks basic safeguards used by other states to confirm that an inmate is unconscious before injection of the second and third drugs, Justice Ginsburg would have remanded the case to allow the Kentucky courts to consider whether the state’s omission of those safeguards poses “an untoward, readily avoidable risk of inflicting severe and unnecessary pain.”

Only Justice Souter joined Justice Ginsburg’s opinion.

Next, in Kennedy v. Louisiana, a case involving the brutal rape of an 8-year-old girl by a 300-pound man, the Court heard arguments over whether, as Justice Scalia put it, “a permissible death penalty can be imposed for this crime” of violent child rape. The defendant’s attorney first stressed that there is a “long-standing national consensus” against authorizing the death penalty for rape.

But Chief Justice Roberts questioned whether that is reason enough to prevent a state from being the first to go in another direction. If no state can ever be the first expand the death penalty, then the Supreme Court would be establishing an artificial rule that the states’ consensus can move only in one direction – toward more and more limits on the death penalty – which would mean the Court would be “prohibiting people from changing their mind.” Moreover, said the Chief Justice, the recent trend is actually that more and more states are passing statutes imposing the death penalty for crimes that did not result in the victim’s death.

The defendant’s second argument for striking down the Louisiana law was that it violates the Supreme Court’s “Eighth Amendment-narrowing jurisprudence” by giving juries too much “unfettered discretion to choose who, among the vast class of offenders convicted of child rape, may be subject to the death penalty.” But several justices noted that violent child rape is narrower than the general class of rape, and Justice Alito suggested that perhaps rape is viewed more seriously now than it was in the past.

Finally, an attorney for the State of Texas was given permission to speak in support of Louisiana. Sounding for all the world like the county sheriff in the film “No Country for Old Men,” Texas Solicitor General R. Ted Cruz told the Court that “part of the reason the states are acting” to expand the death penalty is that “in modern times, we're seeing crimes that 20, 30, 40, years ago, people wouldn't imagine.”

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Legislative Update

As the presidential campaign continues to dominate the front pages, many important, but less-celebrated, school issues are coming to a head in the state and federal legislatures. From increasing safety measures for students suffering from food allergies to in-fighting amongst state-law makers over junior college hiring, issues that may have lasting effects on American schools are being debated across the country.


Food Allergies In Schools

On the federal level, one initiative making its way through Congress is aimed at making certain children safer while in school. In early April, the House of Representatives passed the Food Allergy and Anaphylaxis Management Act of 2007 (FAAMA). This act, which has been in the works for some time, now awaits action in the Senate. The goal of FAAMA is to protect the more than 3 million children suffering from food allergies to products such as eggs, milk, peanuts, and soy.

If enacted, FAAMA will create a uniform guidance system for schools across the country to create appropriate management plans for children with food allergies and establish standardized emergency procedures. These national policies will be voluntary, but will help individual schools create measures to help reduce exposure to food allergens and assure parents and students alike of prompt and appropriate responses should a child suffer an allergic reaction. Additionally, the act would offer incentive grants to those schools that choose to implement the guidelines. These grants will help schools adopt and implement the guidelines. The act has been supported by the Food Allergy and Anaphylaxis Network and the American Academy of Allergy and Immunology.

The FAAMA has been developed to address a very real concern for families and schools nation-wide. Food allergies involve an immune system response to foods that the body mistakenly identifies as harmful. When this happens, the body creates specific antibodies against that food, and the next time it is introduced, the immune system releases a massive amount of chemicals in an attempt to protect the body. These chemicals can trigger a number of reactions that can impact virtually every system of the body. Symptoms can range anywhere from a simple tingling in the mouth to a loss of consciousness and even death. As with many things, the best defense for a food allergy is a good offense: strictly avoiding the food allergen is the only way to truly avoid a reaction. And in this manner, school communities can play an integral role in protecting children suffering from such threats.


Controversy Over Alabama Community College Hiring

In early April, the halls of the Alabama statehouse were abuzz over the state’s community colleges. The controversy stems from the state’s “community college,” system that, when set up four decades ago, was seen as a way to provide more educational opportunities to the state’s working class. However, the system is currently under attack as being used to fulfill political patronage needs rather than the educational needs of Alabamans. Critics contend that appointees loyal to the governor are receiving all of the best-paying positions at the state’s two-year colleges. And some charge that this appointment scheme has resulted in an educational system that is politicized and unfair.

The current scandal centers around a former state representative and chancellor of the college system, Roy Johnson, who at the start of April, plead guilty in a bribery and kick back scheme. According to federal prosecutors, Johnson oversaw various fraud schemes that raked in an excess of $18 million. Johnson is said to have arranged jobs for state legislators and relatives of state employees. Johnson reportedly has helped federal prosecutors since his plea agreement -- and that is what has created fear amongst Alabama state legislators. Since the start of the investigations, numerous legislators, most of whom are or have been employees at a community college, have received federal subpoenas to testify before a grand jury. Some have been excused from testifying for undisclosed reasons, while others are expected to testify in the coming weeks and months.

Johnson’s plea agreement is part of a larger federal grand jury investigation. Federal prosecutors have centered their investigation on current and former legislators who, in addition to their elected positions, concurrently held teaching positions at a community college. Many have started to question whether such legislators are simply completing their legislative duties while on the college’s clock and getting paid to do work that they aren’t actually doing. In response, the state Board of Education has recently enacted a rule that all employees (which include teachers at two-year colleges) must use their vacation time if they leave their jobs in order to perform legislative duties.

Regardless of the success of the new rules or the outcome of the federal investigation, this scandal has had a serious impact on the Alabama statehouse. For legislators, it has created a general sense of fear and left many unsure of whom they can trust. And overall, it has clearly indicated a need to assess the state’s two-year college system and perhaps, to open up a dialogue on the role of politics in our education system.

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