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California Death Penalty Development:
Judge Jeremy Fogel of the Northern District of California issued a Memorandum of Intended Decision this afternoon concluding that the current implementation of the death penalty in California is unconstitutional. According to Judge Fogel, the Constitution regulates the procedures used to carry out an execution via lethal injection, including such matters as the lighting, design, and crowdedness of the room in which the execution occurs; the recordkeeping procedures used during executions; the procedures for screening of members of the execution team; and the training and oversight of the team. California's current practices are inadequate under this standard, Judge Fogel indicated, as they create an undue risk of an Eighth Amendment violation during an execution. As this only a "Memorandum of Intended Decision," not a final decision itself, Judge Fogel gave the state of California 30 days to respond. The memorandum specifically asks the state to inform the Court whether the state plans to change its procedures in light of the memorandum.

  This issue presumably is headed for the Supreme Court eventually, and it looks like Judge Fogel's case may be the one that gets there with the most complete record. Stay tuned. Hat tip: Howard.
AppSocRes (mail):
I have never understood why executions in this country are not carried out in the following completely humane, extremely inexpensive, and simple to implement fashion: Place the condemned in a large air tight room and then quickly replace the air with an atmosphere of 100% nitrogen gas. Within a few minutes the condemned will be unconscious, and within thirty minutes dead. There will be no buildup of CO2 or other gases that will produce unpoleasant physiological reactions. The condemned will be able to breathe as normal, but will gradually become light-headed then unconscious from oxygen deprivation. Is this perhaps too simple, cheap, and humane for government consideration?
12.15.2006 8:05pm
Bryan DB:
Judge Fogel's preliminary opinion just got a boost from the botched Florida execution and the subsequent freeze on all further executions in that state.
12.15.2006 8:14pm
Kevin Murphy:
Surely, if the only complaint is that there might be some pain, a high-velocity large-caliber bullet to the brain would be the most humane. If messy.

But where does it actually say that executions must be free of all pain? Dying of natural causes is often painful. The criterion should be that the method not be designed to inflict inordinate pain. After that, the 8th Amendment seems silent.

But listening to all this, you'd think we were burning people at the stake. Exasperating. But then, the plaintiff's agenda is rather clear.
12.15.2006 8:27pm
Armen (mail) (www):
Actually the Eighth Amendment says nothing about pain. Separating someone's brain from their body as quickly as possible, say by a mechanical device that accelerates a blade through the neck with the cunning use of a gravity, would cause even less "pain" than the bullet. But who am I to judge.

I just want to say I had the pleasure of hearing Judge Fogel talk to my legal ethics class (he's a dead lookalike and soundalike for Eugene Levy) and his approach to all his cases is not lighthearted, but he is very practical. This memo exemplifies that. I have to disagree with Prof. Kerr on this case reaching the SCOTUS. I think the State is now in a position where it will take much less effort to change the directive than to litigate the matter up.
12.15.2006 9:21pm
Dick King:
I can certainly agree with AppSocRes. Death by entering a nitrogen purge region is a reasonably common industrial accident and the victom never knows what hit him. See, for example, the references to anoxia in a wikipedia page on space disasters.

However, people have their tastes. I would propose that any death row inmate be given hir choice of means of death provided only that:

* The cost may not exceed [say] $50,000
* It can't violate a treaty or expose the general public to risk. [You can't ask to be vaporized by a nuclear weapon.]
* You must die on the appointed day.

There may be a couple other loopholes you may want to seal.

-dk
12.15.2006 9:40pm
Brian G (mail) (www):
Wow. The Constitution says all that? My copy must be out of date.
12.15.2006 9:47pm
K:
Of course it's out of date, Brian. The liberals know that and stand ready to fix it. But others won't get out of their way.

I oppose the death penalty and think many deserve it. No possible SCOTUS ruling will settle this because the SCOTUS changes.

What does get settled is a life, eventually a case gets through the legal maze and an execution is performed. It is a reverse lottery; there is almost no chance of losing but some do.
12.15.2006 10:21pm
Bryan DB:
BrianG, Don't let your bias get in the way of your critical reading and thinking skills. The judge didn't say those protocols were required; he said that the current protocols risk a violation of constitutional rights. There's kind of a big difference there (like, one you could drive a truck through) and it's applicable to all kinds of constitutional provisions (not just this one). For example, many procedures are a denial of due process, even if the exact procedures aren't outlawed in the langauge of the Constitution.
As to this particular procedure and the Eighth Amendment, there's no need to take the judge's word for it. Here's the defendant's (State's) expert: "it would be "terrifying" to be awake and injected with the contemplated dosage of pancuronium bromide and it would be "unconscionable" to inject a conscious person with the contemplated amount of potassium chloride." "Unconscionable" sounds a lot like "cruel," especially since the current dispute is about whether the current protocols leave the relevant "patient" is conscious.
12.16.2006 12:55am
Salaryman (mail):
My father, though imperfect like the rest of us, was a decent person who assuredly never raped and murdered anyone. Nonetheless, he died a slow, agonizing and (I'm sure, although he showed great courage) terrifying death from cancer, as will approximately one quarter of those reading this. Alternatively, I suppose, he could have died an excruciatingly painful and terrifying though mercifully quick death from a massive heart attack. Or he could have died from diabetes -- first losing his toes, then his feet, then most of his limbs, then his sight, then his kidneys, then his life. Or from many other diseases, accidents or other causes, most of them unpleasant, painful and terrifying. Of course, when I say "he could have" I mean "we all might" -- me, you reading this, all of our parents, spouses, children, friends. In short, everyone we know and love.

The process of dying is so commonly painful and terrifying that most of us, when we can bring ourselves to contemplate our own deaths, hope only that we are among the lucky few who die peacefully in their sleep, or instantly after unknowingly stepping in front of a truck, or in some other relatively painless and terror-free fashion. All the while, however, we know that the odds are likely against us.

Unless, apparently, we are "lucky" enough to have committed and been convicted of a brutal murder, in which case the full power of the state must devote itself to ensuring that our deaths are, if at all possible, painless (not just less painful than my Dad's but, if it can be managed, entirely pain-free) and, of course, not "terrifying." (I realize that Fogel's decision dutifully recites that the constitution does not require painless executions, but merely that the State must avoid "unnecessary and wanton infliction of pain." Reading the remainder of the decision reveals this to mean "if you can at all avoid inflicting pain, you'd better do so." I also recognize that this standard was not contested by either Party -- i.e., it appears the State didn't dispute the nature of its obligations, but only whether it had satisfied them.)

I know Judge Fogel to be an able jurist, and I expect that the State will comply with the requirements set forth in his intended decision. But I wonder if I am the only one who finds it disturbing that capital felons are entitled as a matter of constitutional right not simply to deaths that are no worse than the rest of us are likely to endure, but to deaths that are, if at all possible, as good as those any of us could reasonably hope for, and better than those most of us will get.
12.16.2006 3:38am
Tillman Fan (mail):
I completely agree with everyone who finds it ridiculous that some people think the Constitution requires a pain- and terror-free death penalty.

Also, similar to AppSocRes, if the absence of pain and terror are so important, I wonder why some other forms of execution aren't used. I've never tried heroin or morphine, but I understand that a lot of people enjoy the experience -- even though some of them end up dead from overdoses. Why not simply administer an overdose of heroin? I tend to think that this would be not only pain-free, but actually enjoyable for the inmate. Surely, no criminal-defense activist could object to that.

But of course they would, because the point with their arguments isn't to administer the death penalty in a pain-free fashion, but rather to make it logistically impossible to administer the death penalty, period.
12.16.2006 9:04am
Bill Dyer (mail) (www):
Patterico isn't impressed with the opinion. Neither am I.

Judge Fogel is obviously a very bright and dedicated judge, and most of the many nits he picks with the current California procedures would probably be meritorious, were he an administrator in the California prison system, or a warden, or a state legislator. He's not. And the constitutionality of the California system ought not depend on whether they use graph paper or plain paper in their EKG machine, or on whether they use a 60-watt or a 100-watt bulb in the execution chamber.
12.16.2006 10:20am
Bryan DB:
While it's noble that people think convicted killers should be killed in any way that's reasonable (even if painful), those same people forget one obvious fact. No system, including the criminal justice system, is perfect. In other words, within that group of convicted killers who get a painful death and "deserve it," there is also some number of innocent people, who don't deserve a painful death, but will also get it. Keep that in mind while you're jumping for joy at the prospect of killers dying in misery.
12.16.2006 11:06am
Mike Lief (www):
Salaryman,

Well said!

Whether it's by hanging, bullet or blade (guillotine), there are plenty of methods to dispatch the condemned with a minimum of effort — or damage to the Eighth Amendment to the Constitution.

What I find so galling is the line of thought that any pain inflicted on the inmate in the course of imposing the death sentence is an unconstitutional violation of his rights.

Who amongst us will be so lucky as to shuffle off this mortal coil in a pain-free state? Where do I sign up?

I hardly think it's asking too much that those criminals ajudged guilty of the most heinous crimes perhaps suffer just a wee bit before breathing their last.

This is far from the first time I've had cause to ponder the Ninth Circuit's prediliction for usurping the role of the legislature — and the people — in ratifying over and over the appropriateness of capital punishment, as well as the methods used.

But it's the judicial arrogance that drives me to distraction.
12.16.2006 11:56am
Tillman Fan (mail):
Bryan DB -- I don't jump for joy at anyone's death. I'm not even sure how I feel about the death penalty as a matter of policy. But let's not pretend that a difference in opinion regarding policy -- including the very legitimate arguments that you raise -- implicates the Eighth Amendment.

You know, innocent people are sentenced to spend life in prison, too. Does that mean that those sentences are unconstitutional? I know that death is irreversable, but so is time -- if someone spends 25 years in prison for a crime they didn't commit, the State can't give him that time back.
12.16.2006 11:56am
Joel B. (mail):
Ecclesiastes 8:11 - When the sentence for a crime is not quickly carried out, the hearts of the people are filled with schemes to do wrong.
12.16.2006 12:43pm
Mike Lief (www):
Let's not forget the victim, Terri Winchell, who was only 17 when Morales raped, beat and stabbed her 25 years ago, leaving her body in a secluded vineyard.

Morales was tried and convicted in my county in 1983; he's had 23 years to game the system.

Terri would have been 42 this year, might have had children of her own; we'll never know.

One thing we can be sure of is that Terri did not enjoy a merciful end to her young life, so you'll pardon my lack of concern for the niceties of Morales' impending exit.
12.16.2006 1:20pm
Clayton E. Cramer (mail) (www):

The process of dying is so commonly painful and terrifying that most of us, when we can bring ourselves to contemplate our own deaths, hope only that we are among the lucky few who die peacefully in their sleep,
I've read that 53% of people die in their sleep. I've certainly known a few who were that fortunate.

Take a look at what "cruel and unusual punishment" meant in the context of 1789, and it is apparent that liberals are, once again, pulling this stuff out of an orifice where the sun doesn't shine. (Hint: the threat of drawing and quartering's use to persuade those who were tried as part of the Bloody Assize of 1685 to plead guilty in exchange for life in prison. They were then executed.)

I am opposed to the death penalty, partly for practical reasons, such as the lack of an Undo feature (in case someone discovers, "Whoops! Wrong guy!"), but fundamentally because it makes the hair stand up to think of the government making a conscious, rational decision to kill another person when there is an alternative strategy available (life in prison). But I recognize that the Constitution provides for it, and this level of idiocy to justify that there is a violation of the Eighth Amendment just shows what completely dishonest people liberals are.
12.16.2006 3:42pm
Salaryman (mail):
Clayton: I'd certainly be pleasantly surprised to learn that 53% of people died in their sleep. I suppose it depends on what "in one's sleep" means -- if it means "while not awake/conscious" it wouldn't surprise me as much. Indeed, my father would then qualify as someone who died "in his sleep," having spent his last day or so in a coma resulting from the combined effects of metastatic cancer and the morphine drip necessary to combat his otherwise intractable pain.
12.16.2006 5:29pm
Cincinnatus (mail):
Isn't this an impermissible advisory opinion under Flast v. Cohen, Muskrat v. U.S., and similar authority?
12.16.2006 6:11pm
Bryan DB:
Cincinnatus:
I don't think is an advisory opinion; there's an actual case or controversy currently in the court.

Tillman Fan:
First, as to the "difference in opinion regarding policy." I think you're incorrect. The judge explicitly stated that he's not addressing whether the legislature is right or wrong to have the death penalty available. he makes his argument based on the fact that it's up to the legislature to decide this, but if they're going to implement that policy, they must do so in a constitutional manner. That's not too much of a stretch for a judge to say, is it? It's hardly a usurpation of the legislature's role in policy judgment; judges pass on the methods a legislature uses to implement policy all the time (that's why there are so many standards of review in constitutional law).
Second, your argument about life imprisonment is beside the point. Of course the state can't give the time back, but it's a lot easier to let someone out after a wrong conviction than it is to bring them back to life.
12.17.2006 12:06am
Kovarsky (mail):
Do people even read the opinions before they comment here? Not one person has even said anything about the chemical sequence that consumes 90% of the opinion.
12.17.2006 6:37am
Kovarsky (mail):
Hey Clayton et al.,

Did you see that JEB BUSH unilaterally imposed a moratorium on executions in Florida because of the possibility that chemical injection sequences were "torturing people to death."

Jeb Bush. How does that fit into your liberal conspirator model?
12.17.2006 7:03am
Kovarsky (mail):
I should point out that the chemical injection sequences in Florida and California are the same: compound 1 induces unconsciousness, compound 2 paralysis, compound 3 cardiac arrest.

Jebbie identified the same problem as the Cali court, that compound 1 was wearing off cuch that compounds 2 and 3 were taking effect while the prisoner was conscious. Nobody disputes that this pain is absolutely excruciating.
12.17.2006 7:08am
Bill Woods (mail):
Would there be a problem with using different chemicals, say heroin or cocaine, that people are known to take voluntarily, repeatedly? I don't know what the lethal dosages would be but obviously they exist.
12.17.2006 6:20pm
Allan (mail):
One commentator has suggested a simple overdose of barbiturates (sodium pentobarbital in particular), as they are commonly used by veterinarians for euthanasia of animals as large as horses.
12.18.2006 12:48am
Houston Lawyer:
My father-in-law, who is in a decades-long struggle with emphysema, gave me a small hatchet for Christmas last year. I have no doubt that the State of California could find a better use for it here than I have at home.

In my home town about an hour from Houston, they had pictures at the fire station of the last public hanging held there, the county seat. It looked better attended than the county fair. We should bring those public hangings back.
12.18.2006 3:01pm
Targeted Traffic (mail) (www):

NO LIVING BEING HAS THE SO CALLED RIGHT TO GIVE DEATH.
ANY HUMAN BEING THAT CONSIDERS DEATH AS A "REVENGE" SHOULD BE SHOT THOUGH THE HEAD. AS TIME GOES ON THE HUMAN BEING HAS LOST PRIDE, RESPECT AND QUALITY. THEY ARE WORSE THAN ANIMALS (ANIMALS ONLY KILL FOR FOOD OR DEFENSE).

THE HUMAN EGO...

I WOULD LOVE TO SEE A JUDGE DIE JUST LIKE THE ONES HE OR SHE HAS KILLED SO THAT THEY WOULD "FULLY" UNDERSTAND WHAT THEY ARE DOING.

AND THEN THEY TALK ABOUT PEACE... HA! AN INSULT TO MANKIND.
12.20.2006 1:01am