Would the Supreme Court Agree With Judge Fogel's View of the 8th Amendment?:
In a memorandum handed down on Friday, Judge Fogel of the Northern District of California concluded that the Eighth Amendment requires relatively careful judicial scrutiny of how the state of California implements the death penalty. There are a lot of complicated issues here, but I'd like to focus on just one very narrow question: If this issue gets to the Supreme Court, how likely is it that a majority of the Supreme Court would agree with Judge Fogel's view? I tend to think it's not very likely.

  First, a little bit of background. The Supreme Court has said that "the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Whitley v. Albers, 475 U.S. 312, 319 (1986). "Among 'unnecessary and wanton' inflictions of pain are those that are 'totally without penological justification." Rhodes v. Chapman, 452 U.S. 337, 346 (1981). For example, deliberate indifference to an inmate's serious medical needs can be cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97 (1976) (untreated back injury). As far as I know, the Supreme Court has never directly applied these principles to methods of execution. We have a general principle that the unnecessary and wanton infliction of pain violates the 8th Amendment, but we don't have any Supreme Court guidance on the degree of scrutiny given to whether a particular infliction of pain is "necessary" or "unnecessary" in the context of steps that are part of an execution.

   As I read Friday's memorandum, Judge Fogel appears to interpret this guidance as establishing that a system of capital punishment needs to be carefully designed to ensure that the risks are as low as is reasonably possible that the punishment might involve the unintentional infliction of pain. Instead of considering whether the government's intent is to execute the condemned without pain — which all agree it is, I believe — Judge Fogel is focused on the risks that the condemned may feel pain because the government might make an error. Specifically, is the state's system of capital punishment sufficiently trustworthy that it gives Judge Fogel "constitutionally adequate assurance" the condemned inmate will feel no pain?

  Of particular interest, Judge Fogel suggests that it may be difficult to figure out how a state can satisfy this constitutional duty of care. His opinion suggests it may require considerable additional study. He writes that "a single, brief meeting primarily of lawyers, the result of which is to tweak" existing practice is unlikely to be enough to satisfy him; to be satisfied, he "may require consultation with independent experts and with other jurisdictions" and a review of "contemporaneous records of executions, such as execution logs and electrocardiograms." As I read his opinion, Judge Fogel believes that if a state wants to have a system of capital punishment, the method of execution must be professional, well-functioning, and reliable. Further, it is up to judges to evaluate each system to determine if that state's system is sufficiently professional and reliable to satisfy the Constitution.

  If this issue went up to the Supreme Court, would the Justices agree with this approach? Gazing into my crystal ball, I tend to think they would not. Having a more professional death penalty system sounds like a very good idea on policy grounds, but I doubt that a majority of the Supreme Court would demand it as a matter of constitutional law. First, I don't know of any Supreme Court authority that directly supports such close scrutiny of the details of executions. And second, I doubt the Justices would want to set new constitutional standards that may require close judicial scrutiny in each execution. Presumably that would require hearings about the existing status of the death penalty system before every execution around the country, including appellate review of that hearing, introducing additional years of delay to each case. I suspect that the Court would be willing to rule out methods of execution that are clearly too risky if easier alternatives are readily available, but I doubt a majority would set a standard that requires such detailed judicial scrutiny of the process as Judge Fogel has in mind.

  That's my guess of where the Court is, anyway. I gather Judge Fogel's plan is to not to find out; the end of his opinion makes clear that he wants the state of California to work with him rather than take the issue upstairs. I don't know enough about the politics of the death penalty in California to know if the Governor is likely to to that. But I suspect that the Supreme Court would have a different approach if the issue came before them, either in this case or in another one.

  For more writing on Judge Fogel's opinion, check out critical posts from Patterico and Beldar (who describe the opinion as unsupported by existing law) and this favorable perspective from death penalty opponent Deborah Denno (who calls the opinion "bold" and "incisive").