...the only issues that may be raised in an application for post-conviction relief are those that were not and could not have been raised in a direct appeal; and support a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent. This Court may not consider the merits of or grant relief based on any subsequent application for post-conviction relief unless it contains sufficient specific facts establishing that the current claims and issues have not been and could not have been presented in a previously considered application because the factual or legal basis for the claim was unavailable.

Then they approach his claim, by trying to take it apart for procedurally failing.  On the first prong, that it could not have been raised in a direct appeal, they find in his favor - he didn't know he was terminally ill.  The State tries to argue he blew the deadline, 60 days after he found out about it, but the Judges discard that argument.  They have a statement they want to make about capital punishment and where they stand, and do it in the second prong:

In his sole ground for relief, Petitioner asserts he is terminally ill with advanced lung cancer, and has at best, less than a year to live. Petitioner argues  that the "evolving standards of decency which inform the Eighth Amendment and the Oklahoma Constitutional bans against cruel and unusual punishment and cruel or unusual punishment will be violated by executing a terminally ill inmate."  

As an aid in interpreting the language in the federal constitution prohibiting "cruel and unusual punishments," the United States Supreme Court has " established the propriety and affirmed the necessity of referring to `the evolving standards of decency that mark the progress of a maturing society' to determine which punishments are so disproportionate as to be cruel and unusual." Roper v. Simmons, 543 U.S. 551, 561, 125 S.Ct. 1183, 1190, 161 L.Ed.2d 1 (2005) citing Trop v. Dulles, 356 U.S. 86, 100-101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion).

If you wondered what the judges of the Oklahoma Court of Criminal Appeals (their highest criminal court) really think, read the footnote pinned to the end of the cite to Roper and Trop:

Personally, with all due respect, I have searched the federal constitution and fail to find this language in it. It appears to be another penumbra we are forced to navigate when applying the text of the Constitution.

First off, "personally" is a word judges never use in an opinion, save when they're either editorializing, advertising, or politicizing.  You decide cases on the facts and the law, and leave your personal politics out of it.  I think Judge Lumpkin's enjoying his work a little too much.

Second, for those who've never been in the military, the term "with all due respect" really means "I have absolutely no respect for you, your position, or what you say.  Don't allow my good manners to deceive you into believing otherwise."  Therefore, one never uses "with all due respect" unless one intends to mean something very disrespectful.

For those of you unacquainted with this, one must remember that "penumbas" and "emanations" from textually described rights preserved in and by the Bill of Rights are one of the big bugaboos of wingnuts and the Federalist Society.  Have been for many, many years. Sneering out the word "penumbra" or "emanation" is a good way to show your Federalist bona fides, and to make sure everyone knows where you'll come down.  Sort of a secret handshake.  The "penumbras" and "emanations" come to us from cases like Roe v. Wade, Poe v. Ullman, Griswold v. Connecticut, and a couple other cases from the 60s, particularly Douglas' opinions trying to preserve individual rights.  

The judges here are showing the world (and the Circuit Justice and the 5 wingnuts on the S.Ct.) that they're true believers, and willing to rub libruls' noses in dirt.  More than that, they're judicially modest in relying closely on the text of the statutes and the Constitution, and deferential to the other branches of government, particularly when they (elsewhere) point Mr. Bland to the forlorn hope of executive clemency.  

What this footnote says is much the same as has repeatedly been said by the Texas Court of Criminal Appeals and the Fifth Circuit in regard to the rights of capital defendants - "we don't care what the Supreme Court says, and we'll do whatever we want, precedent and Supremacy Clause be damned."  The same reason lies behind pinning the parenthetical "plurality opinion" on the butt end of the cite to Trop. Judge Lumpkin and his colleagues are reminding the world that, regardless of what Roper says, Judge Lumpkin says Trop - and decency, maturing societies, and progress - are librul ideas and therefore not the law.  This also explains why the opinion says the standard enunciated by the Supreme Court in Roper and Trop is "an aid in interpreting the language in the federal constitution prohibiting `cruel and unusual punishments,'" rather than coming out and saying "the law is ...".  

These judges do not accept the law as written by a higher court.  Rather, they have decided to follow their own prejudices and politics.

The rest is just a little facile sophistry, which these judges know will stand them in good stead with the good people of Oklahoma.

The dissent points out that it is both cruel and unusual in pretty much any sense of the word to execute someone who is terminally ill.

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 Almighty determine the day and manner of the inmate's demise.  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.

You don't.  But that family wants some blood and they got the state to get it for them.

Bland claims that the execution of persons in his situation cannot be justified by the goals of deterrence or retribution that are typically invoked to justify capital punishment.
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.

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 crime."  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.  In one case the punishment makes no sense to the punished; in the other it makes no sense for the punisher.

Making sense is not what capital punishment is about - spilling blood is all of what it's about.

Harking back to the footnote denigrating the precedential value of Trop and Roper, the dissent correctly characterizes it:  

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. 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."

The dissent does take the majority's wingnut attitude to task - they've been wrong on capital cases before and they're wrong again:

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.  We should not do the same thing in the current case.

But they will.  I think Roper really rankles the majority judges here.

The dissent concludes:

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."  We should uphold this fundamental Eighth Amendment and Oklahoma constitutional value in the current case.

Well, judge, the "barbarity of exacting mindless vengeance" is what modern Republicanism and wingnuttery, particularly wingnut jurisprudence, is all about.  "Get used to it."  That's what your colleagues would say.

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* Think about that, next time you read a vampire story or watch a vampire movie.  And then contemplate what it (and those stories) mean for, and as a commentary on, our society....