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The de facto nationwide moratorium on executions for the last six months is likely at an end as a result of the U.S. Supreme Court’s 7-2 decision on April 16 upholding Kentucky’s protocol for lethal injections. Two death row inmates had challenged the procedure used by Kentucky and 34 other states, claiming that if improperly administered it could cause excruciating pain before death, in violation of the Eighth Amendment ban on “cruel and unusual” punishment. Chief Justice John G. Roberts Jr., writing for himself and two other justices in the majority, said the inmates had not established the kind of “objectively intolerable risk of harm” necessary to render a procedure unconstitutional. Within hours of the decision, Virginia Governor Tim Kaine lifted his state’s moratorium on executions, which he had imposed while the Kentucky case was pending. The splintered decision in Baze v. Rees, No. 07-5439, leaves open possible future challenges to lethal injection, however, and was notable also for the fact that Justice John Paul Stevens declared that he now views the death penalty as unconstitutional. Stevens became the first member of the high court to openly oppose capital punishment since Justice Harry Blackmun retired in 1994. The death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment,” Stevens wrote, quoting the late Justice Byron White’s views expressed in Furman v. Georgia, 408 U.S. 238 (1972), a decision that temporarily halted executions. Stevens was in the majority when the court reinstated capital punishment in Gregg v. Georgia, 428 U.S. 153 (1976). The 91-page decision fractured the court, with six of the seven justices in the majority writing separately � all except Justice Anthony Kennedy � and a dissent by Justice Ruth Bader Ginsburg, who was joined by Justice David Souter. Donald Verrilli of Chicago-based Jenner & Block, who represented convicted murderers Ralph Baze and Thomas Bowling, said he was disappointed their appeals are over, but he found some of the language of the decision “heartening.” Challengers who can show a state consistently does not follow the protocol or that executions have repeatedly gone wrong “certainly have a shot.” Tax ruling On April 15, Tax Day, the court released its ruling in MeadWestvaco Corp. v. Illinois Dep’t. of Revenue, No. 06-1413, a case closely watched by states seeking to tax multistate and international corporations. The dispute arose when Ohio-based Mead sold its LexisNexis research service in 1994, realizing $1.5 billion in capital gain. Illinois assessed Mead $4 million for what it believed was its apportioned share of taxes on the gain. Mead, now MeadWestvaco Corp., appealed, but Illinois won in state courts under a broad theory that viewed LexisNexis as serving the “operational purpose” of Mead, even though it was not fully integrated or centrally managed as part of Mead’s “unitary business.” Justice Samuel A. Alito Jr. said the Illinois court was wrong to use the “operational purpose” test as justification for taxation. The Supreme Court’s precedents, he said, “were not intended to modify the unitary business principle by adding a new ground for apportionment.” The court sent the case back to Illinois courts for a determination on the unitary business question.

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