# Bland v. State > Court of Criminal Appeals of Oklahoma · June 22, 2007 · 164 P.3d 1076 URL: https://www.frixlaw.com/law-library/cases/9796453 ## Case - **Full name:** Jimmy Dale BLAND, Petitioner v. STATE of Oklahoma, Respondent - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** June 22, 2007 - **Citations:** 164 P.3d 1076; 2007 OK CR 25; 2007 Okla. Crim. App. LEXIS 24; 2007 WL 1836851 - **Precedential status:** Published - **Opinion:** Dissent by Chapel - **Judges:** Lumpkin, Viee-Presiding, Johnson, Chapel, Lewis - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9796453 ## Opinion text CHAPEL, Judge, Dissenting. T1 I dissent from the Court's refusal to stay the execution of this man, Jimmy Dale Bland, because I conclude that it violates both the United States Constitution and the Oklahoma Constitution to execute a man who is terminally ill, such that he is expected to die of natural causes within a matter of months. I conclude that it is both cruel and unusual to execute such a person and that this Court should not permit this unnecessary execution to proceed. 1 *1080 T2 It is important to understand both what today's Court opinion is doing and what it is not doing. 2 The majority acknowledges that Bland has presented a claim that he has not and could not have previously raised, i.¢., that it is unconstitutional to execute a terminally ill person, and that he raised this claim in a timely manner 3 The majority also declines to dispute Bland's factual claim that he is terminally ill and that his death is expected in less than one year (possibly much less), acknowledging that medical documents attached to Bland's emergency application "support his assertion concerning his current diagnosis and life expectancy." 4 Hence the majority recognizes the factual basis for Bland's claim and that his claim is appropriately before this Court. T3 Nevertheless, the majority maintains that we must evaluate Bland's claim through the lens of 22 O.S.Supp.2006, § 1089(C)(2), which permits relief only if a post-conviction applicant can establish "either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." This approach fundamentally misunderstands Bland's claim. His claim is that due to his current status, as a person who is terminally ill and facing death in the near future, he cannot be constitutionally executed. He is not making a claim about trial error or factual innocence. Bland cannot possibly satisfy the majority's announced standard; and he does not attempt to do so. T4 Yet if it violates the Federal or the Oklahoma Constitution to execute a person in Bland's condition, this Court cannot and must not allow such an execution to proceed. We cannot and must not permit the execution of persons who are mentally retarded, 5 persons who committed their crimes before they were 18 years old, 6 or persons who are legally insane or mentally incompetent. 7 *1081 Nor can we permit the execution of persons convicted of crimes other than murder 8 or persons convicted of felony murder, who had no knowledge or intent that someone would be killed. 9 If a death-row inmate can establish that he or she belongs within one of these classes of persons, that inmate cannot be constitutionally executed, regardless of whether he or she can establish any trial error (outcome-determinative or otherwise) or factual innocence of the crime. 10 1 5 We can and must address Bland's claim for what it is: a claim that it is unconstitutional to execute persons who are terminally ill, whose death is medically expected to occur in less than one year's time. Neither the State nor the Court majority disputes that Bland belongs to this class of persons. Henee if such persons cannot be constitutionally executed, Bland cannot be constitutionally executed; and this Court must prohibit his execution. 16 Bland is unable to point to a Supreme Court case addressing this precise issue or even persuasive caselaw from other jurisdictions. On the other hand, neither does the State point to any cases specifically rejecting the current claim, which suggests either that the class of persons that Bland belongs to is indeed very small or that other factors (such as intervening death through natural causes) have prevented the full appellate consideration of such a claim. I suspect that both are true. At any rate, neither factor relieves this Court of its obligation to resolve this issue, on its merits, in the case now before us. T7 I conclude that it is both eruel and unusual to execute a terminally ill inmate whose death is medically expected in less than one year's time. It is "cruel" because it involves the State in an act of snuffing out the life of a person who is very ill and whose death by natural causes is imminent. Such an execution would also be "unusual," (1) because the factual coincidence of being on death row and facing both a fast-approaching execution date and a medical diagnosis of fast-approaching natural death is itself quite rare, and (2) because a State holding such an inmate would have good reason to delay the State-run execution and simply let nature and the inmate's Maker determine the day and manner of his/her demise. 11 I see no good reason to here invoke the State's machinery of death, with all its costs, including inevitable emotional turmoil for all those associated with it, when the goal of terminating the life of a convicted murderer is about to be accomplished without need of intervention or assistance. 18 Bland argues that executing a person in his situation is akin to executing a person who is mentally incompetent or legally insane, because the predominant justifications for capital punishment do not apply in these two situations. 12 Today's Court opinion initially mischaracterizes Bland's claim as one "that his execution would be the same as executing one who is mentally incompetent." The Court's conclusion that the record does not support this factual claim is unsurprising, but irrelevant-since Bland does not claim that he is mentally incompetent. Rather, Bland claims that the execution of persons in his situation cannot be justified by the goals of deterrence or retribution that are typically *1082 invoked to justify capital punishment. 13 T9 The goal of specific deterrence cannot justify the execution of persons facing imminent natural death, since such persons are not realistically in a position where they would have the strength or wherewithal to again harm others-particularly since they would presumably remain "on death row" until the time of their death. Furthermore, the goal of general deterrence is not a persuasive justification for executing a terminally ill defendant. It is simply not believable that any general deterrent value that the existence of the death penalty in a particular jurisdiction might have (to prevent the commission of first-degree murder by others) could be measurably diminished by a rule that those who are convicted and sentenced to death might some day possibly avoid actual execution, if they are "lucky enough" to be diagnosed with a terminal illness, such that they are expected to die in less than one year. 1 10 I do not agree, however, with Bland's claim that the execution of a terminally ill person lacks retributive value; and I do not contest the Court majority's observation that contraction of a terminal illness "does not lessen [Bland's] culpability for his erime." What happens to a defendant well after his crimes, whether he becomes mentally incompetent or terminally ill, does not change that defendant's culpability for his prior acts. Yet I simply cannot conclude that the value of pure retribution or "naked vengeance," taken upon either the mentally incompetent or the terminally ill, is consistent with our modern standards of decency, which underlie all our death penalty jurisprudence. 14 In one case the punishment makes no sense to the punished; in the other it makes no sense for the punisher. 15 T 11 While today's opinion might mock the idea of "evolving standards of decency that mark the progress of a maturing society" as being the appropriate reference for determining the content of what is "cruel" and "unusual" in the Eighth Amendment context, it is indeed the proper and required measure. 16 Furthermore, it is simply unavoidable and inevitable that we turn to our societal conceptions of what is moral and appropriate to fill in the contours of constitutional terms that are as subjective and indeterminate as "cruel" and "unusual." And we are best to acknowledge openly, as the United States Supreme Court has done, that we are relying upon our judgment, not merely precedent and legal analysis, in making this determination. 17 *1083 {12 Furthermore, this Court should not wait to be told by the United States Supreme Court whether or not it is constitutionally acceptable to execute the terminally ill. 18 If this Court's members conclude, by exercising our own judgment, that it is not constitutionally permissible to execute the terminally ill, we should not decline to reach this conclusion in the current case-particularly since our State Constitution's protection against "cruel or unusual punishments" is arguably more expansive than the Eighth Amendment anyway. 19 This Court repeatedly rejected claims that it was unconstitutional to execute the mentally retarded, ... until the Supreme Court decided Atkins in 2002. This Court also rejected claims that it was unconstitutional to execute persons who were under age 18 at the time of their crimes, ... until the Supreme Court decided Roper in 2005. Hence this Court allowed executions to proceed that are now considered clearly unconstitutional. And there is no remedy for these wrongs. 20 We should not do the same thing in the current case. 113 Bland's life is very near its natural end. It is cruel, unusual, inappropriate, and totally unnecessary to intervene at this time, just to ensure that his demise is at the hands of the State. The Supreme Court has recognized that the Eighth Amendment's prohibition of "cruel and unusual punishments" includes within its domain the protection of "the dignity of society itself from the barbarity of exacting mindless vengeance." 21 We should uphold this fundamental Eighth Amendment and Oklahoma constitutional value in the current case. I would grant Bland's Application for Post-Conviection Relief and issue a Stay of his Execution. I am authorized to state that Judge David Lewis joins this opinion. 22 . See U.S. Const. Amend. VIII (Excessive bail shall not be required, nor excessive fines im *1080 posed, nor cruel and unusual punishments inflicted."); Okla. Const. Art. II, § 9 ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted."). It should be noted at the outset that while the Federal Constitution proscribes punishments that are "cruel and unusual," our Oklahoma Constitution proscribes punishments that are "cruel or unusual." Since the language of our State provision is otherwise identical to that of the corresponding Federal provision, the use of the word "or" in our State Constitution is highly significant and implies a broader constitutional protection, prohibiting punishments that are either "cruel" or "unusual." . It is not entirely clear how the controlling opinion in today's case, authored by Judge Gary Lumpkin, should be described. Judge Charles Johnson has offered a "Specially Concurring" opinion, which under our rules denotes that the author "agrees with the rationale and result reached, but would like to add specific authority or explanation to the rationale used in the opinion." See Rule 3.13(B)(2), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007). Judge Arlene Johnson joins this "special concurrence." However, the opening line of the C. Johnson opinion states, "I concur in the result reached by the majority." Under this Court's rules this language appears to denote that this separate writing is actually a "Concur in Result" opinion, meaning that the voting judge(s) "agrees with the result reach in the majority opinion, but does not agree with the rationale used." See Rule 3.13(B)(3). If these two judges are not in fact joining the opinion authored by Judge Lumpkin, then that opinion is not truly a "majority Opinion" or a "Court opinion," nor does it have any precedential value, beyond deciding the current case. Nevertheless for the sake of simplicity, I refer to Judge Lumpkin's opinion as the "Court opinion" and the "majority opinion" herein. . See 22 O.S.Supp.2006, § 1089(C)(1); 22 O.S. Supp.2006, § 1089(D)(8); see also Rule 9.7(G)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007). . According to the documents presented, Bland has advanced lung cancer, which has spread to his brain ("stage IV non-small cell carcinoma with brain metastasis"), his bones, his adrenal glands, and his spine. Bland has had both radiation therapy and chemotherapy. Nevertheless, according to Dr. Melody Benjamin, an oncologist/hematologist at the OU Health Sciences Center, "[hlis life expectancy is less than one year." . See Atkins v. Virginia, 536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002) (prohibiting execution of mentally retarded persons). . See Roper v. Simmons, 543 U.S. 551 , 125 S.Ct. 1183 , 161 LEd.2d 1 (2005) (prohibiting execution of persons who committed their crime before age 18); see also Thompson v. Oklahoma, 487 U.S. 815 , 108 S.Ct. 2687 , 101 LEd.2d 702 (1988) (prohibiting execution of persons who committed their crime before age 16) (plurality opinion). . See Ford v. Wainwright, 477 U.S. 399 , 106 S.Ct. 2595 , 91 LEd.2d 335 (1986) (prohibiting execu *1081 tion of persons who are legally insane/mentally incompetent). . See Coker v. Georgia, 433 U.S. 584 , 97 S.Ct. 2861 , 53 LEd.2d 982 (1977) (prohibiting execution for offense of rape). . See Enmund v. Florida, 458 U.S. 782 , 102 S.Ct. 3368 , 73 L.Ed.2d 1140 (1982) (prohibiting execution of accomplice to murder who did not kill, intend to kill, or contemplate that a killing would occur). . See Roper, 543 U.S. at 568 , 125 S.Ct. at 1195 ('The death penalty may not be imposed on certain classes of offenders, such as juveniles under 16, the insane, and the mentally retarded, no matter how heinous the crime.") (citations omitted). . The dearth of legal authority on the issue also supports the conclusion that it is "unusual." . Bland's brief states: The only purpose that can be served by executing Mr. Bland in his condition is naked vengeance. ... Just as the execution of the mentally incompetent cannot serve the ends of justice or the societal goals supposedly advanced by capital punishment, the execution of an individual whose death is imminent from terminal illness likewise would be nothing but an empty and revolting exercise. . See, e.g., Roper, 543 U.S. at 571 , 125 S.Ct. at 1196 (recognizing "two distinct social purposes served by the death penalty: ' "retribution and deterrence of capital crimes by prospective offenders" '") (citation omitted). . The Supreme Court acknowledged, in Ford, that there was "no suggestion that [the defendant] was incompetent at the time of his offense, at trial, or at sentencing." 477 U.S. at 401 , 106 S.Ct. at 2597 . Hence in Ford, as in the current case, there was no issue of a defendant's diminished culpability for the crime committed; nor was there any claim that the defendant's later-acquired status inhibited the fairness of his trial or his sentencing. In both cases the issue is whether it remains constitutional to execute the convicted defendant, despite his diminished condition at the time of the actual execution. . The Ford Court acknowledged the wide variety of justifications offered for the common-law proscription on the execution of the mentally incompetent and insane, including the words of Sir Edward Coke. Coke described the execution of a "mad man" as being "a miserable spectacle, both against Law, and of extream inhumanity and cruelty." See Ford, 477 U.S. at 407 , 106 S.Ct. at 2600 (quoting 3 E. Coke, Institutes 6 (6th ed. 1680)). The execution of a dying man is likewise a miserable spectacle, both inhumane and cruel. . See, e.g., Roper, 543 U.S. at 561 , 125 S.Ct. at 1190 (quoting Trop v. Dulles, 356 U.S. 86, 101 , 78 S.Ct. 590, 598 , 2 L.Ed.2d 630 (1958)); Ford, 477 U.S. at 406 , 106 S.Ct. at 2600 (same). . See, e.g., Coker, 433 U.S. at 597 , 97 S.Ct. at 2868 ("[The Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment."); Atkins, 536 U.S. at 312 , 122 S.Ct. at 2247 (same) (citing Coker); Roper, 543 U.S. at 563 , 125 S.Ct. at 1191-92 (noting Court's return to the view that "the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment") (citations omitted); see also Roper, 543 U.S. at 590 , 125 S.Ct. at 1207 (O'Connor, J., dissenting) (agreeing with Court majority on this issue and quoting same language). . The majority opinion relies upon the absence of authority on this issue to reject Bland's constitutional claim. . See note 1 supra. . See, e.g., Woodson v. North Carolina, 428 U.S. 280, 287 , 96 S.Ct. 2978, 2983 , 49 L.Ed.2d 944 (1976) (discussing "the unique and irreversible penalty of death"). . See Ford, 477 U.S. at 410 , 106 S.Ct. at 2602 . . Regarding the majority opinion's suggestion that Bland's claim is most appropriately presented to the pardon and parole board, as an issue for executive clemency, two things are worth noting. One, the pardon and parole board has already rejected Bland's claim, 5-0. Two, as the Supreme Court held in Ford, if the Eighth Amendment proscribes the execution of an entire class of persons due to their status (as legally insane or otherwise inappropriate for execution), the execution of individual members of this class cannot be left to the discretion of the executive branch. See Ford, 477 U.S. at 409-10 , 106 S.Ct. at 2602 ("Faced with such widespread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane."). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9796453. Public record. Not legal advice.