McQueen v. Parker
| Decision Date | 30 June 1997 |
| Docket Number | No. 97-SC-517-MR,97-SC-517-MR |
| Citation | 950 S.W.2d 226 |
| Parties | Harold McQUEEN, Jr., Appellant, v. Philip PARKER, in his official capacity as Warden of the Kentucky State Penitentiary, and Doug Sapp, in his official capacity as Commissioner of the Kentucky Department of Corrections, Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
This cause comes before the Court on motion of appellant Harold McQueen, Jr., for interlocutory relief prior to entry of a final judgment. CR 65.07. In the court below, injunctive relief in the form of a stay of execution was denied, and inasmuch as the underlying issue concerns imposition of the death penalty, review of the trial court's interlocutory order in this Court is proper. Skaggs v. Commonwealth, Ky., 803 S.W.2d 573, 577 (1990).
Appellant is scheduled to die by means of electrocution pursuant to KRS 431.220 before sunrise on Tuesday, July 1, 1997. In this action he challenges the constitutionality of electrocution as the means of execution contending that such means violates Section 17 of the Constitution of Kentucky which proscribes infliction of cruel punishment. We note that a similar claim based on the Eighth and Fourteenth Amendments to the Constitution of the United States was brought in the United States District Court for the Western District of Kentucky and that said claim is now on review before the United States Court of Appeals for the Sixth Circuit.
On a number of prior occasions this Court has considered whether electrocution as the means of capital punishment violates Section 17 of the Constitution of Kentucky. We have held that it does not. Foley v. Commonwealth, Ky. 942 S.W.2d 876 (1996); Bowling v. Commonwealth, Ky., 942 S.W.2d 293 (1997); Perdue v. Commonwealth, Ky., 916 S.W.2d 148 (1995); Bowling v. Commonwealth, Ky., 873 S.W.2d 175 (1993); Sanders v. Commonwealth, Ky., 801 S.W.2d 665 (1990); and Smith v. Commonwealth, Ky., 734 S.W.2d 437 (1987). While our decisions in this regard may not preclude reconsideration of this issue with a properly developed record, in this case, the precedential value of the decisions cited hereinabove is sufficient to sustain the constitutionality of the statute. We note that in other jurisdictions, in cases where the record was fully developed, arguments similar to the one appellant makes here have been rejected. Sawyer v. Whitley, 772 F.Supp. 297 (E.D.La., 1991); Thomas v. Jones, 742 F.Supp. 598 (S.D.Ala., 1990).
This is the third death warrant signed by a Governor of Kentucky commanding appellant's execution. He was sentenced to die by the statutory means by judgment entered on April 8, 1981. On direct appeal, the final judgment was affirmed on February 16, 1984. We will refrain from further summarizing the procedural history of this case and merely observe that for a great period of time the fact of appellant's execution by means of electrocution has been known to him. For appellant to have waited until less than two weeks prior to the date of his execution to assert the claim herein suggests purposeful delay. Gomez v. U.S. District Court, 503 U.S. 653, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992). Less than two weeks before his scheduled execution, appellant has brought a claim which he contends requires an exhaustive hearing on the physiology of death by electrocution with emphasis on pain which may be associated therewith. He proposes to produce the testimony of expert witnesses who will support his contention. In our view, such a claim must be brought in time for the Court of Justice to consider it in an orderly manner without further delaying enforcement of the judgment. Particularly is this so in light of our prior rejection of constitutional challenges to capital punishment by electrocution. Appellant's claim was not timely brought.
Appellant further claims that evolving standards of decency render electrocution constitutionally impermissible. He points to the fact that a number of states have in recent years adopted lethal injection as their means of imposition of the death penalty, and the fact that a bill is currently pending before the Kentucky General Assembly which would grant condemned persons the right to elect lethal injection rather than electrocution. While such a legislative trend does appear to exist, electrocution has by no means been eliminated by all or even substantially all of the states. Moreover, the Kentucky General Assembly, the final arbiter of public policy in this State, has not seen fit to abolish electrocution or even authorize some alternative means. Appropriate judicial restraint suggests that on this question of public policy, we defer to the General Assembly. Particularly is such deference appropriate in view of the long-standing acceptance in this state and nation of electrocution as the means of capital punishment. Ex Parte Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 933-34, 34 L.Ed. 519 (1890).
Finally, we observe that the claim appellant makes here has been previously before this Court. In his direct appeal, appellant raised the question of cruel punishment pursuant to Section 17 of the Constitution of Kentucky and asserted that whether electrocution was cruel or unusual punishment must be determined in light of societal development relying on Workman v. Commonwealth, Ky., 429 S.W.2d 374 (1968). While we did not directly address the issue, it was before us and we concluded the opinion by saying that issues not specifically addressed were without merit. The issue is thereby precluded. Sedley v. City of West Buechel, Ky., 461 S.W.2d 556 (1970).
For the foregoing reasons, appellant's motion for a stay of execution is denied.
ENTERED: June 30, 1997.
/s/ Robert F. Stephens
Chief Justice
I must dissent from this opinion and order denying Appellant the opportunity to be heard on what I consider to be a very important constitutional challenge to the use of the electric chair as the means by which he will be executed. In the rush to see that this long-delayed execution actually takes place, we are taking refuge in the safety of precedent containing only the slightest of consideration to our own constitutional provision forbidding the imposition...
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Tamme v. Com.
...and KRS 532.075. Perdue v. Commonwealth, supra, at 168. Death by electrocution is not cruel and unusual punishment. See McQueen v. Parker, Ky., 950 S.W.2d 226 (1997) and cases cited therein. The aggravating factor of intentional killing resulting in multiple deaths sufficiently narrows the ......
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...30, 2004. KRS 431.240(4). The imminence of the execution spawned the usual flurry of last-minute litigation. Compare McQueen v. Parker, 950 S.W.2d 226 (Ky.1997); McQueen v. Commonwealth, 949 S.W.2d 70 (Ky.1997), cert. denied, 521 U.S. 1130, 117 S.Ct. 2536, 138 L.Ed.2d 1035 (1997); McQueen v......
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Baze v. Rees, No. 2005-SC-0543-MR.
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