Death penalty challenged over 'cruel' delays

An impending Montana execution has highlighted a increasingly persuasive argument for defence lawyers trying desperately to stem the widening use of capital punishment - that the length of time prisoners spend on death row constitutes "cruel and unusual punishment" in violation of the US Constitution.

Duncan McKenzie was due to die by lethal injection early today. Not only would he be the first person executed by Montana in 52 years, he is said by his lawyers to have been on death row longer than any other of the 2,984 people in the US currently under sentence of death.

Convicted on 1 March 1975 for the rape and murder of a teacher, McKenzie is 43 and has won eight stays. Even though a federal appeals court yesterday turned down his claim for another, he still has a chance in the Supreme Court, which has signalled for the first time it is ready to listen to arguments that long spells on death row breach the Eighth Amendment.

After a memorandum from Justice John Paul Stevens underlining this "novel and important" issue, a federal judge issued a stay for Clarence Lackey, another rapist-murderer on Texas's death row since 1978. Supporting Lackey's case was a brief filed by two British barristers, Philip Sapsford and David Marshall, citing a Privy Council ruling that prisoners on death row in Jamaica should have their sentences automatically commuted after five years. In the US, the average wait is more than double that.

"This is a major new departure in capital appeals law, and there haven't been too many of them lately," Richard Dieter, director of the Death Penalty Information Center here, a leading anti-capital punishment group, said.

Whatever the outcome, McKenzie's case only adds to the confusion and irrationality surrounding the death penalty in America, coming as it does amid intense public pressure to speed up executions and rein in an appeals system which many feel has run amok. As one appeals judge noted to his lawyer: "If we issue a stay, we'll be part of the cruel and unusual punishment you say is being inflicted on your client."

The 20-year wait for McKenzie is at odds with the traditions of Montana, a byword in Wild West days for instant vigilante justice. Whatever the outcome, however, 1995 seems set to break all records since capital punishment resumed in the US in 1976. So far 19 people have been executed, compared with 31 in 1994. Once effectively confined to the "Death Belt" of the old Confederacy, the death penalty has in recent years spread to the North and West.