[12] 57 F.3d 1461 , 1466 (9 th Cir., 1995; affirmed en banc with three dissenters, at 57 F.3d 1493 (1995)).
[14] The states follow these precedents. For example, in People v. Frye, 18 Cal.4 th 894, 1030 (1998) the California court dismissed a Lackey claim, quoting McKenzie's above language, and stating that "[t]he reasoning of the Ninth Circuit"in McKenzie v. Day"and of the Fifth Circuit"in White v. Johnson" persuades us that prolonged confinement prior to execution does not constitute a violation of the Eighth Amendment." Likewise, People v. Anderson, 25 Cal.4 th 543, 606 (2001) held:
[T]he automatic appeal process following judgments of death is a constitutional safeguard, not a constitutional defect. . .because it assures careful review of the defendant's conviction and sentence. . .[A]n argument that one under judgment of death suffers cruel and unusual punishment by the inherent delays in resolving his appeal is untenable. If the appeal results in reversal of the death judgment, he has suffered no conceivable prejudice, while if the judgment is affirmed, the delay has prolonged his life.
No conceivable prejudice? Don't the innocent and over-sentenced wait decades for appellate attention, growing old while their capacity to disprove guilt and/or aggravation is often fatally impaired by the decay of evidence? Consider, e.g., People v. Masters, S016883. Masters has been on Death Row for 25 years, but his automatic appeal has only just been set for hearing, on November 3, in Sacramento. The decay of old evidence generally outweighs new evidence offered in habeas proceedings, and testimony recantations are dismissed as unreliable. An often dispositive "too bad" rationale is that, even with the new evidence, the original jury had a better chance of getting it right than a second jury ever would, this late in the game.
[15] Historically, death by firing squad has been the only completely reliable method of execution. Alarmingly, "between 1980 and 2010 the rate of botched executions was higher than ever: 8.53 percent." See America's Long And Gruesome History Of Botched Executions, WIRED magazine, May 12, 2014.
[16] Article 1 of the UN Convention Against Torture defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted. . .for such purposes as. . .punishment. . . A failure to remedy negligent mock executions could be construed as turning a blind eye to them, thereby culpably fostering recurrences. Similar considerations apply to the U.S. Torture Statute, 18 U.S.C. 2340 et seq., although it does add the parenthetical slippery slope disclaimer: "(other than pain or suffering incidental to lawful sanctions)."
[17] "Particularly unexpected" is a euphemism. Clayton Lockett's execution was set for April 22, 2014. On April 21, the Oklahoma Supreme Court granted a stay. All hell broke loose (The Cruel And Unusual Execution Of Clayton Lockett, supra, n. 1):
That same day, a shocking reversal: Governor Mary Fallin stepped in. She issued an executive order saying she did not recognize the Oklahoma supreme court's authority to grant the stay. "The execution for Clayton Derrell Lockett," she announced, "is therefore scheduled for April 29, 2014-- The next day things got even worse: a state representative filed articles of impeachment against the five justices who had voted for the stay. The Oklahoma supreme court bowed to the pressure. Two days after saying that it would need a long and proper debate in order to determine the constitutionality of the secrecy law, the court issued a decision: the law was fine. The stay was lifted.
[18] See Oklahoma policy indicates lethal injection drugs can be stored, The Oklahoman, Oct. 3, 2015.
[19] Oklahoma Attorney General comments on Richard Glossip's stay, ocolly.com, Oct. 5, 2015.
[20] Justice Brennan in Fay v. Noia, 372 U.S. 391, 430--31 (1963).
[21] In California, even before a 2007 lethal-injection-related moratorium began (set to end in 2016), Death Row suicides exceeded executions, and the likelihood of death by natural causes far exceeded the likelihood of execution. Carney's Order, Appendix A.
[22] Glossip's actual innocence grounds are so strong that no reasonable person can have full confidence in the verdict. See Richard Glossip and the End of the Death Penalty, The New Yorker, Sep. 30, 2015. But Glossip's innocence claim is up against not only the verdict of two juries (a second trial was granted owing to ineffective counsel) but also caselaw and statutes that insist on the finality of state judgments regardless of reasonable doubt as to guilt and the sentence of death. Strong new evidence is not enough: only extraordinarily strong new evidence only might suffice. See: Herrera v. Collins, 506 U.S. 390, 417, 426 (1993) (new evidence casting reasonable doubt on guilt not "extraordinary" strong); the Anti-terrorism And Effective Death Penalty Act of 1996; and Where Innocence Is No Defense, New York Times, Aug. 12, 2015.
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