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Undernews is the online report of the Progressive Review, edited by Sam Smith, who covered Washington during all or part of ten of America's presidencies and who has edited alternative journals since 1964. The Review, which has been on the web since 1995, is now published from Freeport, Maine. We get over 5 million article visits a year. See for full contents of our site

February 14, 2010


Solitary Watch - The Louisiana Department of Public Safety and Corrections sued every inmate on death row, in an effort to block any one of them from challenging the state's lethal injection procedures. Each of the 84 prisoners in the "death house" at Angola State Penitentiary was personally served papers in the suit, said Nick Trenticosta, who has represented numerous clients on Angola's death row.

Trenticosta, who is also director of the non-profit Center for Equal Justice in New Orleans, knows of no other instance in which a state sued its death row inmates en masse over legal questions relating to their execution. "I've been hanging around death penalty cases for 25 years," Trenticosta said in a phone interview this morning, "and I have never seen anything like this."

The Corrections Department's litigation is a countersuit, filed in response to an earlier lawsuit claiming that Louisiana's lethal injection procedure is in violation of state law. That suit was filed by the Capital Post Conviction Project of Louisiana on behalf of death row prisoner Nathaniel Code. It stated that Louisiana had not met the requirements of its own Administrative Procedures Act in creating guidelines for execution by lethal injection. The state procedure ought to specify exactly what drugs should be used to kill prisoners, the CPCPL argued, rather than simply calling for the administration of drugs. Without such stipulations, Trenticosta said, "They're saying if we want to pour boiling oil into your veins, we can do it."

Just over a month ago, on January 8, a state district court in Baton Rouge dismissed Nathaniel Code's suit, which would have halted all executions in Louisiana until the Corrections Department brought its procedures in line with state law. Attorneys for the state argued that Louisiana's three-drug lethal injection protocol was not subject to the Administrative Procedures Act; the judge agreed, and threw out the suit. . .

On a larger scale, execution by lethal injection-which is used in 35 states-has faced several legal challenges in recent years, on the grounds that it violates the constitutional ban on cruel and unusual punishment. These challenges were propelled in part by several horribly botched execution attempts, in which prisoners were stuck with IV needles numerous times over periods of up to two hours, and in a few cases returned to their cells when attempts failed. Opponents have also argued that the later drugs in the three-drug protocol may cause excruciating pain, which dying prisoners cannot express because the initial drugs have paralyzed them.

In April 2008, the U.S. Supreme Court ruled 7-2 that lethal injection was not unconstitutional; it is the "method of execution believed to be the most humane available," Chief Justice John Roberts wrote in the majority opinion. "If administered as intended, that procedure will result in a painless death." . . .

Angola Warden Burl Cain, who oversees all executions in Louisiana, has indicated that it causes him pain to put prisoners to death. But Cain, famously, appears more focused on heavenly justice than on the earthly variety. Cain executed his first prisoner in 1995, and later said, "I felt him go to hell as I held his hand." He told the Baptist Press, "I decided that night I would never again put someone to death without telling him about his soul and about Jesus."

If executions were ever to resume in Louisiana at the rates common in the 1980s, heavenly justice might be all that's available to some of the inmates on death row. According to the New Orleans Times-Picayune, "Since the United States reinstated the death penalty in 1976, Orleans Parish juries have condemned 38 defendants to death. But a recent tally by attorneys for death-row inmates calculated that courts have found errors in 25 of those sentences, or nearly two-thirds. In some cases defendants were retried, resulting in convictions on lesser charges, while in others defendants were released."


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