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Workman's Execution:

At 1am central time, Phillip Workman was executed for the murder of Lieutenant Ronald Oliver. Of note, Workman was the first capital defendant to be executed since the state of Tennessee's revised its lethal injection protocol so as to ensure the process does not cause unnecessary pain and suffering during execution.

The NYT reports:

Philip R. Workman's execution date has come and gone five times in the quarter-century since his conviction for shooting a Memphis police officer. Early Wednesday, he was finally executed at the Riverbend prison on the industrial outskirts of this city.

The execution, the first since the state reviewed and revised its lethal injection procedures, came after a flurry of appeals from Mr. Workman's attorneys, who unsuccessfully sought stays from the U.S. Supreme Court and the Tennessee Supreme Court. . . .

Mr. Workman's case has received attention in part because it came so soon after the state's review of lethal injection procedures. Tennessee is among a small group of states that have scrutinized lethal injection, . . .

UPDATE: Sentencing Law & Policy rounds up some related posts here.

Phantom:
Who tested it to make sure?

--PtM
5.9.2007 9:59am
dejapooh (mail):
Phillip Workman tested it
5.9.2007 10:06am
Truth Seeker:
Cruel and unusual does not mean no suffering or no pain. How much pain did he cause his victim? Anything in that range is okay.
5.9.2007 10:08am
Jeek:
Seeker, it costs nothing to put him down with no pain, and I'm all for it if it silences the bedwetters (at least temporarily).
5.9.2007 10:30am
Phantom:
Hold on there--

Does that mean we need a sliding scale of executions? If you kill your victims painlessly you get a nice painless death? But if you killed your victim horrifically, no lethal injection (f'rex) for you? No, you get drawn and quartered?

Doesn't that implicate equal protection? I suppose you could argue that the "gentle" mass murderer and the violent killer aren't similarly situated, but Good Christ, you'd be splitting those hairs mighty fine.

I'm not a big fan of the death penalty, but I do think the current debate about whether death by lethal injection is painful is silly. It's not like anyone can ask the folks who've actually tried the process how it felt.

--PtM
5.9.2007 10:33am
Charlie (Colorado) (mail):
I'm with Phantom on this: there is something supremely ludicrous about the notion that we might not continue executions because the subject might suffer some discomfort in the process.
5.9.2007 10:57am
Stephen C. Carlson (www):
Seeker, it costs nothing to put him down with no pain, and I'm all for it if it silences the bedwetters (at least temporarily).


This is already happening. The first chemical injected, Sodium Pentathol, is an anesthesia.
5.9.2007 11:10am
M (mail):
"The first chemical injected, Sodium Pentathol, is an anesthesia."

Actually, no. It paralyzes you but doesn't make you not feel pain. This is why it's nearly always used with actual pain killers (narcotics, usually) in surgery. It's just this that was the issue.
5.9.2007 11:20am
Dick King:
See march 19, 1981 here. The survivors claim that they painlessly lost consciousness. I can't understand why nobody uses pure nitrogen to asphyxiate their capital convicts.

-dk
5.9.2007 11:41am
Stephen C. Carlson (www):
Actually, the chemical used for paralysis in lethal injection is pancuronium bromide, which follows the sodium pentothal (applied at much higher doses in lethal injection than in surgery).
5.9.2007 11:42am
AppSocRes (mail):
M:

You are misinformed on sodium pentothal. In the doses given during executions it causes immediate unconsciousness and extended anesthesia. Anyone who's had dental surgery under general anesthesia should know this, since S.P. is the standard anesthetic for these procedures. See the Wikipedia article for details.

By the way, the Tennessean article on this murderer's execution reveals that he was gaming the system until the very end with absurd last meal requests and a post-mortem law suit to prevent his body being autopsied.
5.9.2007 11:42am
Anderson (mail) (www):
There is something terribly wrong with any system that takes 25 years to execute someone.

My pet idea is a federal court of capital appeals, which would hear all death appeals (including habeas appeals from state courts) and from which the only appeal would be via cert to the Supreme Court. A single court would enhance consistency. Habeas actions would also be limited to a single petition.
5.9.2007 11:43am
JB:
While we shouldn't be in the business of torturing anyone, neither should we be overly concerned about our executees' discomfort. As long as he dies quickly and surely, that should be good enough.

Hanging (by a competent hangman), firing squad (by accurate shooters), lethal injection (in deadly dose), beheading (by sharp and heavy blade)...all are good.

As a matter of practicality, I'm opposed to capital punishment under the current regime, especially because of the news coming out of Dallas. But that has entirely to do with executing innocents, and nothing to do with the fate of the guilty.
5.9.2007 12:10pm
Bill Poser (mail) (www):
The problem with lethal injection is that it is not too hard to screw up and administer the drugs in the wrong dose or wrong sequence. There's no reason for using such a system, since we know perfectly well how to execute people quickly, cheaply, and humanely. A single shot at the base of the skull or through the temple will do it, as will a (higher-powered) shot through the heart. So will decapitation with the guillotine (which unlike the use of a sword or axe requires no skill on the part of the executioner). What I find incomprehensible is the insistence on using fallible, potentially prolonged, painful, and messy techniques like lethal injection and the electric chair when patently superior methods have long been available.
5.9.2007 12:13pm
WHOI Jacket:
I've said it before, overdose of narcotics. People do it willingly all the time, can't be that painful.
5.9.2007 12:18pm
Mike Keenan:
What is the point of executing people after 25 years? Other than the millions of dollars in lawyer's fees.

I have to agree that we ate too finicky about the methods? How antiseptic. It is repulsive. It is as if we are ashamed of doing it.

Yes, he deserves to die and society has every right to kill him. But, if it's going to take 25 years, why do we bother. Anybody feel safer?
5.9.2007 12:22pm
Henry (mail):
Since 1973, 126 people on death row have been released and then acquitted, pardoned, or had all charges dropped. We have no idea how many innocent people have been executed, but it seems unlikely that the 126 is more than a small fraction of the innocent people who are or who have been on death row since 1973. Therefore, because the execution of innocent people is inevitable, supporters of the death penalty support the execution of innocent people. This is not to say that they are happy with it, of course, but they consider it acceptable collateral damage. The question is whether, if they or their loved ones were innocent but sentenced to death, they would conclude that their deaths would serve a beneficial purpose.
5.9.2007 12:23pm
great unknown (mail):
Carbon monoxide.

More generally, ask the assisted-suicide supporters what they recommend to their clients.
5.9.2007 12:25pm
WHOI Jacket:
Henry, give me the link of the executed who was exonerated post-mortem.
5.9.2007 12:25pm
Oren (mail):
Anderson - check out some of the now-proven-innocents that have been exonerated well after their first habeas action. Are you willing to put in a system that would have wrongfully executed them?

Where's our commitment to Blackstone's formulation?
5.9.2007 12:26pm
WHOI Jacket:
By supporting incarceration, I therefore support the incarceration of innocents. True, we COULD always release them, but how do we give them back 15 years of their lives?

Nice strawman arguement, one could argue (as I do) that the releases mean that the system works. Otherwise, why have an appeals process at all?
5.9.2007 12:28pm
Bretzky (mail):
I've always felt that the Eighth Amendment was just poorly written and did not really capture what its authors intended. For a collection of people who believed that death by hanging and firing squad were acceptable punishments to write the words that no cruel and unusual punishments shall be inflicted should give one pause before considering whether or not lethal injections are unconstitutional.

Clearly capital punishment itself is not unconstitutional; and I say this as someone who is adamantly opposed to it. Also, clearly lethal injection is not unusual as it is used by almost every state in the US that has capital punishment.

The constitutionality of the practice would then hinge on the meaning of the word cruel. The first defintion of cruel at dictionary.com is: "willfully or knowingly causing pain or distress to others." Going merely on this definition one would have to say that lethal injection is cruel and, hence, unconstitutional.

The problem with this view is that death by hanging and by firing squad fit the bill too and they were accepted by the framers. Which leads me back to my supposition that the Eighth Amendment is poorly written. I actually think they intended to say "nor 'needlessly' cruel and unusual punishments inflicted."

That re-write, I think, better fits with the framers intentions and would lead me to the conclusion that one has to measure the method of execution against the available options before deciding if it is or is not constitutional. My feeling is that lethal injection is constitutional but we can never really know. Unless of course, we use it, bring the guy back to life, ask him how it felt, and then execute him again, which would really be cruel.
5.9.2007 12:29pm
Henry (mail):
WHOI Jacket: It should be obvious that taking away a number of years of someone's life is not as bad as killing him. If I must spell out why, it is that he can live outside of prison after he is exonerated, and he can also be compensated for his years in prison.

These people were not released as a result of the normal appeals process. Their convictions were affirmed on appeal and they no longer had a right to a lawyer. They were released because groups like the Innocence Project voluntarily investigated their cases and got them reopened.

Here is the link you request: http://www.deathpenaltyinfo.org/article.php?scid=6&did=110
It lists 123, not 126, as I said by mistake. But there are some innocent people who are released and not exonerated because the prosecutor offers them a plea bargain of time served if they plead guilty on retrial. That way the state doesn't have to admit what it did, and doesn't have to pay restitution.
5.9.2007 12:42pm
Anderson (mail) (www):
Anderson - check out some of the now-proven-innocents that have been exonerated well after their first habeas action. Are you willing to put in a system that would have wrongfully executed them?

Oren, I suspect those are due to shoddy examination at earlier points. I would like to put the job of capital review in the hands of judges who do nothing else and who will have the best chance humanly possible of getting it right the first time.

The other problem with the system is the miserable quality of many capital defenders; short of a federal office of same, I'm not sure what to do about that.
5.9.2007 12:49pm
Anon-----:
Asking for post-mortem exonerations is just pointless posturing, designed to obscure the fact that with dozens of exonerations decades following the original conviction, it is quite likely that innocent people have been executed in the modern United States. Groups that are concerned with this issue put all of their limited resources into helping those who can still be saved, that is, those who are currently alive and on death row. Investigations of the cases of those already executed will necessarily take a backseat to more immediate concerns. Don't let the fact that such cases have not yet been officially discovered or confirmed yet help you sleep better at night--innocents have been killed, yes.
5.9.2007 1:13pm
Dave N (mail):
Henry:

And there are some guilty people who are acquitted because evidence is lost, witnesses disappear or die, etc.

But the question remains and you did not answer. Point to one "actually innocent" person who has been executed. Last year, in his concurrence in Kansas v. Marsh, Justice Scalia noted that such an "actually innocent" person was the "Holy Grail" for death penalty opponents--and they could not list one.

Finally, I find the idea behind "it took 25 years" and so too much time has passed to be rather bizarre. It is not the State who caused the delays. Rather, it is the condemned. In some ways it is analogous to the old saw about the man who shot his father and asked for mercy because he was now an orphan. The Yiddish word "Chutzpah" comes immediately to mind.
5.9.2007 1:16pm
Daniel San:
Anderson: The other problem with the system is the miserable quality of many capital defenders;

That Illinois study that found extremely serious errors in a large number of death penalty cases found something else very interesting: Those cases with extremely serious error that were partly attributable to defense counsel involved retained defense counsel. The court-appointed system (at least in Illinois) seems to do rather well.

To address the problem, the Illinois Supreme Court created a Capital Certification system. In every capital case, the defendant must be represented by two attorneys and both must be certified as competent to handle capital cases.
5.9.2007 1:18pm
dejapooh (mail):

My pet idea is a federal court of capital appeals, which would hear all death appeals (including habeas appeals from state courts) and from which the only appeal would be via cert to the Supreme Court. A single court would enhance consistency. Habeas actions would also be limited to a single petition.


This is also known as the "Better safe than sorry" method.
5.9.2007 1:21pm
Blue:
"These people were not released as a result of the normal appeals process. Their convictions were affirmed on appeal and they no longer had a right to a lawyer. They were released because groups like the Innocence Project voluntarily investigated their cases and got them reopened."

Not true, Henry. For example, the first guy on the list:

"On the basis of mistaken identification and coerced confessions, Keaton was sentenced to death for murdering an off duty deputy sheriff during a robbery. The State Supreme Court reversed the conviction and granted Keaton a new trial because of newly discovered evidence. Charges were dropped and he was released after the actual killer was identified and convicted. (Keaton v. State, 273 So.2d 385 (1973))."
5.9.2007 1:33pm
Phantom (mail):
But Anderson--

What about the problem of burnout and cynicism? When all you hear are post-conviction relief motions, the vast majority of which are meritless, how do you avoid the problem of judges tuning out potentially valid claims. Given that the default position of a court reviewing a petition for habeus is to deny the petition, how can an innocent defendant get a fair shake?

While the problem certainly exists today in the regular appellate system, I can't help but predict that it would be amplified by having a group of judges who do nothing but habeus petitions.

--PtM
5.9.2007 1:38pm
DeezRightWingNutz:
Anon, I disagree. I think the anti-capital punishment crowd would save way more people by finding an innocent person who was executed and then using this to get capital punishment laws changed than they do by getting death sentences overturned one at a time. I also think the opponents of the death penalty are smart enough to know this.
5.9.2007 1:41pm
PatHMV (mail) (www):
Part of the reason for some of the post-first-habeas releases is because capital defense attorneys, who are as a group staunchly opposed to the death penalty itself, intentionally prolong the process. They want to have some claims in their back pocket, to spring out a day or two before the execution to ensure a stay, which will inevitably last 6 months or a year. Look at Workman, who filed his first claim alleging the unconstitutionality of the lethal injection just last week, if I correctly recall the information provided in yesterday's post.

Henry asserts that it is "unlikely that the [123] is more than a small fraction of the innocent people who are or who have been on death row since 1973." There are approximately 3,254 inmates on death row at the end of 2005. As of 2006, about 1,057 prisoners had been executed in the U.S. since executions resumed in 1977. That's a total of about 4,300 people on death row since 1973 (omitting any who might have died of natural causes while in prison). Of those 4,300, about 3% have been exonerated.

If 123 is a "small fraction" of innocent people on death row, that would mean that half or more of the convicts on death row are innocent. I don't think so.

To the contrary, we expend so many resources scrutinizing capital cases so closely, that I think it far more likely that 123 represents very close to the entire population of innocent people sent to death row since 1973. I don't say all because plenty of those folks on death row were sent there only recently, and the full vetting process of appeals and habeas petitions has not been completed yet.

The fact that innocent people are released from death row post-conviction is a sign that something is RIGHT with the system, not that something is wrong. We've imposed all those delays and roadblocks to make sure that any mistakes made at trial are corrected before execution.

The only change I would make is to devote more resources to capital defense at the trial phase. The problem with that is that most capital defense attorneys use those resources not to uncover exculpatory witnesses or forensic evidence, but to pay for outrageous "mitigation experts" who do nothing but testify about the wretched childhood the defendant had and how it's not really his fault that he's a vicious murderer.
5.9.2007 1:46pm
Bill Poser (mail) (www):
I suggest that the official ultimately responsible (the Governor or President) personally perform the execution. If we elect people with any decency (a weak spot in this proposal, to be sure), they will not pull the trigger without assuring themselves that justice has been done.
5.9.2007 1:47pm
DeezRightWingNutz:
I like Bill Poser's idea, but would apply it to confiscations of banned firearms and tax collections, too.
5.9.2007 1:51pm
Kovarsky (mail):
I do not feel strongly about this case. I do have a problem any time abstract interests in finality are used to brush procedural entitlements under the rug, but I confess I am not familiar enough with the litigation to make that judgment here. That being said, I hope I can correct a few recurring logical misstatements on the thread:

(1) The "25 years is enough" argument.

This is throwaway logic that sounds good in newspaper headlines. More often than not, the majority of time is consumed by the court deciding a claim after that claim has been filed, not by petitioners gaming the system at the eleventh hour. Moreover, the phrase "eleventh hour" is certainly infuriating to anybody who actually does capital postconviction litigation. These petitions do not just "appear" - they are often underfunded efforts that take time, like any other piece of litigation, to write a quality product. In state postconviction review, prisoners (even retarded ones) do not even have a federal right to counsel. Finally, often times litigation occurs not because a petitioner is dilatory, but because new rights will accrue while he is in prison (e.g., Atkins).

(2) the "he was a really bad guy" argument.

Whether you like it or not, our criminal justice system is not a binary determination of "guilty/not guilty," whereby a guilty finding exposes you to infinite punishment, regardless of culpability. The question in these habeas cases is only infrequently whether a person is innocent. There is a devastating misconception that this is the only legal (or persuasive) ground on which to challenge a sentence. The circularity of the "he was a really bad guy" logic is astounding. If a petitioner adduces new evidence showing that he might not be as bad as the sentencing jury thought, then the banal repetition of "this dude is really bad" is a bizarre circularity when addressed to the issue of whether a petitioner should be able to secure a hearing to show just how not-bad he is. Many of these issues do not center around guilt or innocence, but around entitlement to certain procedure in determining whether an offender has the requisite culpability for the death penalty. What does, for example, how bad of a guy someone is have to do with whether he may be executed under Atkins?

(3) the "lethal injection is painless" argument.

I do not want to get into the science of the chemical agents (there are 3, not 2, as some have suggested - one anasthetic/narcotic, one paralyzing agent, and one cardiac-arrest inducing agent). Suffice it to say that Jeb Bush - yes, THAT Jeb Bush - thought the procedure flawed enough to unilaterally impose a moratorium on it in Florida. The idea that the objection to the procedure is just an excuse concocted on the part of death penalty opponents is ridiculous. Because executions violate the hippocratic oath, they are not administered by doctors. As a result, chemicals are often injected in inappropriate quantities, without adequate quality controls. There have been more universally-acknowledged screw ups in the administration of the chemical sequence than many care to admit - the most recent ocurring in the California Tookie Williams debacle. When the chemicals are not administered in the appropriate quantities, most doctors will tell you (and have testified to this effect) that the physical sensation is like being "tortured to death." The idea that a botched procedure doesn't mean that it is painful because survivors of the process do not report pain is stupefying. The reason that they did not report pain is because the pain- and death- causing agents did not work, which is what accounts for their survival.

(4) show me an "actually innocent" person.

this is the worst, and has become a favorite rallying cry of many. for starters, we don't invest valuable legal resources in enoxerating dead people. there are enough living ones without representation. second, someone is considered "actually innocent" in many of these studies only when a court declares them so. courts do not declare dead people "actually innocent." any legal proceeding to that effect would be "moot," to put it tastefully. third, the procedural bars to actual innocence claims presented on postconviction review are staggering, as anybody familiar with capital litigation will tell you. that doesn't mean none of those people were not actually innocent. fourth, and most importantly, actually innocent is defined, for all intents and purposes, as having not committed the underlying offense. that is simply not the issue in many of these cases - the major issue is whether the offender possesses the culpability sufficient to justify death, and the minor issue is often whether the procedures used to adjudicate him so are adequate. "actual innocence," in the sense that people invoke it, is obviously not the important consideration in these cases. a person may well be undeserving of the death penalty but not "actually innocent" in the sense scalia uses it.
5.9.2007 2:04pm
Dave N (mail):
Kovarsky,

I would think that capital punishment opponents would be very interested in trying to prove that someone who has been executed is, indeed, factually innocent.

Additionally, I think Justice Scalia uses "actually innocent" in the context of the person flat out did not commit the crime. You are shifting the argument to "actually innocent of the death penalty" in the sense of. "yes he did it, but he didn't deserve to be executed for it."
5.9.2007 2:16pm
Kovarsky (mail):
Dave N,

I would think that capital punishment opponents would be very interested in trying to prove that someone who has been executed is, indeed, factually innocent.

They are. I'm not sure what I said that made you believe that I did not think this to be the case. But keep in mind the narrow definition of what you mean by "actually innocent." That is where an offender is adjudicated actually innocent on federal habeas review. That is, however, an extraordinarily unlikely posture for which innocence is to be proven. More often than not, innocence will be proven in a new trial after a successful showing of ineffecitve assistance, brady violation, or any other claim for habeas relief that results in a new trial rather than a release from custody. Moreover, in this technical sense of actually innocent - someone who has been executed cannot, as a conceptual matter, qualify. No court is going to go back and say that "this person was not guilty of the crime for which he was executed." People may acquire pretty overwhelming evidence that a person was not guilty, but that person would not qualify for Scalia's stats. The issue is not best addressed by a case-by-case examination of people that have been executed, but on a series of probabilities based on what we know about sentencing inaccuracies.

Additionally, I think Justice Scalia uses "actually innocent" in the context of the person flat out did not commit the crime. You are shifting the argument to "actually innocent of the death penalty" in the sense of. "yes he did it, but he didn't deserve to be executed for it."

Yes, of course I am - I am saying that being deserving of the death penalty is an issue of culpability, not whether you "committed the crime." Often times jury will get the trigger man wrong, etc. A trigger man and a getaway driver who doesn't know that there has been a murder seem to have different levels of culpability, although both are guilty of murder. In Scalia's numbers, a sentencing court's failure to distinguish between the two does not count as the execution of an "actually innocent" person. I'm not trying to say anything tricky - my point is precisely yours - that Scalia's definition is restrictive in a way that some people may not appreciate.
5.9.2007 2:29pm
Kovarsky (mail):
PS - I don't want to get in a debate about the specific example (trigger man v getaway driver). That was meant purely as illustrative of how "murderers" could have different levels of culpability.
5.9.2007 2:31pm
Houston Lawyer:
I'd be willing to wager that the number of people killed by people who have been sentenced to death and subsequently released exceeds those who were actually innocent and were put to death. It can be very difficult to re-try a capital case ten years or more after the crime occurred. Witnesses die or their memories fade. Some just get tired of being harrassed.
5.9.2007 2:36pm
Dave N (mail):
Kovarsky,

I agree that a dead person is likely not to be declared actually innocent (though Dr. Mudd did receive a posthumous pardon at some point). But I would think that the Innocence Project and other death penalty opponents would be more than willing to point to convincing, overwhelming evidence of an executed person's guilt.

So far, they have not.
5.9.2007 2:42pm
Dave N (mail):
Freudian slip time

should be "convincing, overwhelming evidence of an executed person's innocence."

Apologies to all for not previewing.
5.9.2007 2:44pm
Jeek:
The only debacle associated with Tookie Williams was that it took so long to execute him and that the media provided a forum for the nauseating maunderings of this vicious felon up to the very end.
5.9.2007 2:50pm
Kovarsky (mail):
Dave N,

Now I understand what you're saying. Even if the Innocence Project and its affiliates showed conclusive proof that somebody was executed that was not involved with the crime (a standard that is not appropriate, I submit), that person would never qualify as "actually innocent" for scalia, because they could not file a federal habeas petition. My only point is that Scalia has loaded the dice.
5.9.2007 3:03pm
David M. Nieporent (www):
Seeker, it costs nothing to put him down with no pain, and I'm all for it if it silences the bedwetters (at least temporarily).
You're assuming that the complaints of the "bedwetters" are in good faith. They're not. There's no pain in this procedure, unless someone makes a mistake and it's done wrong. This is just a desperation argument by anti-death penalty activists, who will object to any and all procedure in an attempt to delay or eliminate executions.
5.9.2007 3:05pm
Kovarsky (mail):
Jeek,

The only debacle associated with Tookie Williams was that it took so long to execute him and that the media provided a forum for the nauseating maunderings of this vicious felon up to the very end.

It's not that you think that, and we're all better off for knowing your feelings on the matter. Your statement that this was the "only" debacle would surely come as a surprise to the executioner itself:

The prison admitted that the execution of Stanley Tookie Williams was botched. Witnesses watched the execution team member struggle for several minutes trying to insert the second IV line. Finally, she gave up in frustration. One team member said "it's not working." The warden ordered the execution to proceed. The prison claims that this was a "lesson well learned."

So while you might think this just doesn't matter, please don't pretend like it didn't happen.
5.9.2007 3:06pm
Kovarsky (mail):
David,

You're assuming that the complaints of the "bedwetters" are in good faith. They're not. There's no pain in this procedure, unless someone makes a mistake and it's done wrong. This is just a desperation argument by anti-death penalty activists, who will object to any and all procedure in an attempt to delay or eliminate executions.

I don't understand. Is Jeb Bush an anti-death penalty activist? Is the California penal system an anti-death penalty activist? I'll suffer a lot of ridiculous assertions, but this is beyond the pale. Why do you just keep repeating that cliche about it being a disguise for anti-death penalty people when people and institutions that are clearly NOT anti-death penalty are acting so decisively to stop the problem? Are you just repeating something you read on powerline?
5.9.2007 3:09pm
Anderson (mail) (www):
Phantom: What about the problem of burnout and cynicism? When all you hear are post-conviction relief motions, the vast majority of which are meritless, how do you avoid the problem of judges tuning out potentially valid claims.

No more a problem than, say, on the Federal Circuit. I'm more worried about district judges who are trying to handle their docket, *plus* habeas petitions.

It's perhaps a goofy idea, but I've never seen it debated pro/con, so I toss it out there now &then.
5.9.2007 3:10pm
Kovarsky (mail):
Anderson,

I thought of writing on that precise proposal once, so I did some research analogizing to the Federal Circuit which, conveniently, happens to be my other area of professional expertise (to the extent I have any).

There are some important differences. When Carter revived the Hruska commission proposals in the late '70s and when Reagan and Congress created the Fed Circuit in '82, it was more about the effects of forum shopping and conflicting precedent on innovation than about anything else. Neither one of those interests is really implicated in the habeas context.

That's not to say that a specialized habeas appeals court may not be a good idea, but there are a number of reasons to give pause. First of all, the regional courts of appeals hated patent cases. They may hate habeas cases, but not in the sense that they want to cede jurisdiction over them to a topically specialized court. Second, it's very unclear how precedent of a Habeas Appeals court, which would doubtlessly pass on many issues of criminal procedure, would interact with criminal procedure precedent on regional courts of appeal. You could certainly see a bloodbath there.

I'd say the most compelling answer, though, is that the "clog" of habeas petitions is more easily fixed by fixing AEDPA than by reconfiguring the federal judiciary. An overwhelming volume of federal litigation involves litigating procedural obstacles to relief rather than the merits - the statute of limitations, motions to authorize successive petitions, exhaustion, procedural default, entitlement to a hearing, certificates of appelability, and so on and so forth. If Congress could just write a clear statute, the habeas document would speed up significantly.
5.9.2007 3:20pm
David M. Nieporent (www):
Kovarsky,

Whether you like it or not, our criminal justice system is not a binary determination of "guilty/not guilty," whereby a guilty finding exposes you to infinite punishment, regardless of culpability. The question in these habeas cases is only infrequently whether a person is innocent.
Exactly. Which is precisely why so many people have so little patience for the system.

If you tell me that the guy on death row didn't do it, I'm horrified. If you tell me that the guy on death row did rape and kill an entire family so he could steal their stereo, but the jury wasn't told by his kindergarten teacher that the other kids picked on him for dressing funny, I really don't have any sympathy.


And no, Scalia isn't demanding an actual legal exoneration. He's just demanding a higher standard than "We dug up a witness ten years later who would challenge the credibility of one of the state's witnesses." Many of the claims of "innocence" are not claims of proof of innocence, but just claims that someone -- often someone the jury actually had a chance to hear, and disagreed with -- tells a different story.

Or, even less compellingly, fifteen years after conviction, an appellate court reverses a conviction because of a retroactively-faulty jury instruction, or inflammatory closing argument by the prosecution, or whatever -- and the state drops the charges not because there's exculpatory evidence but because it's been too long and its evidence is gone. Anti-death penalty activists will call that "exoneration" because the charges were dropped -- but it's not actual innocence.
5.9.2007 3:22pm
Kovarsky (mail):
"docket," not "document."
5.9.2007 3:22pm
Kovarsky (mail):
David,

The term 'actually innocent' is a habeas term of art with a specific meaning, and it does not mean what you are saying.
5.9.2007 3:28pm
Dave N (mail):
Kovarsky,

I agree "actual innocence" is a word of habeas art. So I propose we use the term "exonerated" instead. David Nieporent was clearly using "actual innocence" as a synonym for that word.
5.9.2007 3:56pm
Jeek:
Kovarsky, did Williams end up dead at the end of the execution? Yes, he did. Ergo the execution was not botched, and we can put it in the Win column.
5.9.2007 3:58pm
rlb:
I think I'll be forever biased by the very first case I briefed for the law journal. A man was seeking his Nth post-conviction relief hearing, after he had managed to convince the state Supreme Court to give him a DNA test on pubic hairs found in the larynx of the 86-year-old woman he raped and murdered in the same year I was born.

Go figure, the hairs turned out to be his. But he was still at it.
5.9.2007 4:07pm
Anderson (mail) (www):
Thanks, Kovarsky -- you have clearly spent more time considering this than I ever will. AEDPA revision would help as you say, tho I am a little frightened by what form that revision would take.

One advantage of the centralized appeals court would I hope be consistency, which might balance out some of the disadvantages you note.

And I would treat the capital court as parallel to the COA's for precedential purposes; a circuit split there need not be any more obnoxious than circuit splits ever are.
5.9.2007 4:34pm
dejapooh (mail):
You know, I object to the term Bedwetters. I do not refer to those who support the death penalty as Murderous supporters of 17th century justice. Have some respect for your opposition. People can have different opinion and still be well informed and thoughtful.
5.9.2007 4:37pm
David M. Nieporent (www):
I don't understand. Is Jeb Bush an anti-death penalty activist? Is the California penal system an anti-death penalty activist? I'll suffer a lot of ridiculous assertions, but this is beyond the pale. Why do you just keep repeating that cliche about it being a disguise for anti-death penalty people when people and institutions that are clearly NOT anti-death penalty are acting so decisively to stop the problem? Are you just repeating something you read on powerline?
No. I don't read Powerline. And since I only made one post in this thread, I don't see how I "keep repeating" anything.

As to my point about anti-dp activists, note that an argument does not have to be completely false to be made in bad faith. The argument "X is flawed because of Y" can be true if Y is true, but it's still in bad faith if fixing Y does not eliminate one's objection to X. In other words, they're not making these arguments because they want the procedure to be fixed so that lethal injections aren't botched, they're making these objections because they want lethal injections to be eliminated. You could put the entire surgical staff of the Mayo Clinic in the chamber, and it wouldn't cause the people raising these objections to say, "Okay, now we're fine with it." They'll just come up with another objection.

As for Jeb Bush, no, he's not an anti-death penalty activist, which is presumably why he never tried to claim to a court -- particularly at the eleventh hour -- that the three-drug cocktail was somehow unconstitutional. There's nothing wrong with arguing that states ought to firm up their procedures and write a manual that provides detailed guidelines for lethal injections. That's all Bush was suggesting, and that's what Tennessee had done. Bush, like Tennessee, was trying to preempt these tactics by anti-dp activists, not trying to thwart executions.
5.9.2007 4:43pm
Joel Rosenberg (mail) (www):
Sounds link things went off in a rather, err, workmanlike manner.
5.9.2007 5:28pm
Joel Rosenberg (mail) (www):
More seriously, David M. Nieporent's comment is sensible, well-thought-out, cogently expressed, and, (IMHO) totally wrong. If I thought the DP was inherently immoral (I don't) and that relying on that argument to the political and legal authorities was futile (I do), and that I could delay an instance of it and quite possibly nag the system into abolishing it by what I felt were legitimate legal objections to whatever method was being used, the personnel being used to do it, the legal mechanisms that had led to an instance, etc., I think I would be acting entirely in good faith to employ those serially, as well as in parallel . . .

I think one of the problems with the system is that objections made in good faith can delay an appropriate execution (note: I'm pointing at a class that I believe exists) for decades.

But each to his own.
5.9.2007 5:33pm
KeithK (mail):
Joel, I find the following definition of "good faith" at m-w.com: "honesty or lawfulness of purpose". While I agree that trying to clog up the system with endless appeals is consistent witht he desire to eliminate the death penalty, I don't think it means that an individual appeal is in "good faith". Quite the opposite. Arguing, for example, that lethal injection is cruel when your real goal is to eliminate the death penalty altogether is certainly not "honesty of purpose" in my book.
5.9.2007 5:41pm
PatHMV (mail) (www):
Project Innocence has some credibility with me because of how strict they are in taking cases; they know that they will be forever tarnished if they go to the mat for someone who turns out to be guilty as sin (like the rapist of the 85 year old woman mentioned above).

But most death penalty opponents have no such credibility. I have no problem with people who genuinely oppose the death penalty and fight to oppose it. It's a democracy, and that's an important debate to have. But I do have a problem with those who try to further their general opposition by misleading and misconstruing the facts of particular cases. That's not a slight at any of the commenters here, but an observation that those closest to the battlelines tend to lose perspective.

Our state had only one execution during the 4 years I was the pardon attorney for our governor a while back. A vile, nasty criminal, who would undoubtedly have become a serial killer had he not been caught so early. There was no question that he killed the young woman; his only substantive defense was that there was insufficient proof (only his uncorroborated confession) that he raped her before killing her.

Despite overwhelming evidence of guilt, I got a call a day or two before the execution from his trial lawyer, urging the governor to delay the execution. It took a long time of talking with him to find out what reason he was giving, but it basically was a very vague claim that somebody in the courthouse was sleeping with or had some inappropriate relationship with the judge or somebody else connected to the case. He could give me no names (he didn't refuse to, he didn't know any), no specifics, no explanation for how the vague conduct he was suggesting would have affected the case even if it were true.

On the one hand, I have some sympathy. One of several reasons I've chosen to work for the government most of my career is to avoid being appointed to represent criminals. I can't imagine how it would feel to lose a death penalty case, even if one knew one's client was guilty as sin. But on the other hand, he was simply grasping at straws, not even straws but empty straw wrappers. His call was a complete waste of time and energy. Not that I wouldn't take such call again, because the next one might not be a waste, but his call was a total waste.

I witnessed the execution. It was far more peaceful than he deserved.

P.S. Before I started working for the governor, there had been one other execution during his tenure. The governor (Republican) issued a stay when the prisoner claimed that DNA tests would exonerate him. The DNA tests were done, and confirmed his guilt. But the delay garnered him another year of life, so it was undoubtedly counted as a success by the death penalty opponents.
5.9.2007 5:47pm
Kovarsky (mail):
David,

As to my point about anti-dp activists, note that an argument does not have to be completely false to be made in bad faith. The argument "X is flawed because of Y" can be true if Y is true, but it's still in bad faith if fixing Y does not eliminate one's objection to X. In other words, they're not making these arguments because they want the procedure to be fixed so that lethal injections aren't botched, they're making these objections because they want lethal injections to be eliminated. You could put the entire surgical staff of the Mayo Clinic in the chamber, and it wouldn't cause the people raising these objections to say, "Okay, now we're fine with it." They'll just come up with another objection.

You hardly needed 923 sentences to explain to me what you meant. You continue to be comfortable simply ignoring the fact that there are many people who do not want to see bad cocktalis administered that are not, in fact, using it as pretext.
5.9.2007 6:04pm
Dave N (mail):
I am intrigued by Anderson's proposal though the yeoman's work is done by the federal district courts--who must deal with complicated habeas cases in addition to the remainder of their dockets.

In the interim, I have another suggestion: How about the Circuits trade some of their judges to balance them out ideologically. I suspect Kovarsky would be in favor of Reinhardt and Pregerson coming to Texas from the 9th Circuit in return for a 5th Circuit Bush appointee to be named later. I know I would.
5.9.2007 6:13pm
David M. Nieporent (www):
You hardly needed 923 sentences to explain to me what you meant. You continue to be comfortable simply ignoring the fact that there are many people who do not want to see bad cocktalis administered that are not, in fact, using it as pretext.
Then they would be petitioning the legislature now, not a federal court 15 minutes before a scheduled execution.
5.9.2007 6:33pm
markm (mail):
Bill Poser:

The problem with lethal injection is that it is not too hard to screw up and administer the drugs in the wrong dose or wrong sequence. There's no reason for using such a system, since we know perfectly well how to execute people quickly, cheaply, and humanely. A single shot at the base of the skull or through the temple will do it, as will a (higher-powered) shot through the heart. So will decapitation with the guillotine (which unlike the use of a sword or axe requires no skill on the part of the executioner). What I find incomprehensible is the insistence on using fallible, potentially prolonged, painful, and messy techniques like lethal injection and the electric chair when patently superior methods have long been available.

Because it's not about preventing the condemned pain but about trying to avoid a gross-looking execution scene. The head shot is undoubtedly as pain-free as is possible - but it spatters blood and brains across the room. A well-maintained guillotine is next best, but I expect the heart would pump about a gallon of blood out of the severed arteries before it failed, at high enough pressure to spray pretty far. Lethal injection looks absolutely peaceful, unless they let you see that they screwed up - but I've never found a dentist that can even painlessly give me a shot of novocain, so I doubt that non-medical personnel giving a whole series of shots are going to be really painless...

Not that I am too inclined to worry about a few seconds or even a few minutes of pain suffered by a murderer, Most murders are anything but painless, and it takes something especially bad to get a jury to agree to the death penalty nowadays. If I was inclined to worry about the condemned's pain (rather than the likelihood that we are executing a few innocents), I'd be much more concerned about the psychological torture of 25 years of execution dates being set and put on hold. That's cruel and unusual punishment.
5.9.2007 6:39pm
Kovarsky (mail):
Dave N,

In the interim, I have another suggestion: How about the Circuits trade some of their judges to balance them out ideologically. I suspect Kovarsky would be in favor of Reinhardt and Pregerson coming to Texas from the 9th Circuit in return for a 5th Circuit Bush appointee to be named later. I know I would.

It's not a question of ideology. It's people like David M Nierporent painting the entire capital defense bar as though they're nothing but delay tacticians. It betrays an unfamiliarity with the process that is unmistakeable, and an indifference to it that's almost unspeakable.

I appreciate that he thinks he's find a nice anecdote here, but that's no excuse.
5.9.2007 6:42pm
Harry Eagar (mail):
Henry, can I assume that you're cool with executing heinous murderers in cases where there is no doubt that the verdict was correct, that the person being executed really did the deed?
5.9.2007 6:53pm
Dave N (mail):
Kovarsky,

I was making something of a joke, since the Fifth Circuit seems more amenable to capital punishment than the Ninth Circuit does. As you know (or at least have correctly guessed), I practice habeas corpus law on the government side in the Ninth Circuit. This includes capital cases.

In response to your substantive point, I respect those who are against capital punishment. I even respect those who defend capital litigants at all levels. I understand that defending a monster is not everyone's cup of tea but that someone has to do it.

Most of the capital habeas attorneys I deal with are honorable and I strive to have a good professional relationship with them. That said, there are also more than a few ideologues who look at their job as saving their client's life at all costs, even if it involves dissembling and intellectual dishonesty. However, I do not paint all, or even most, capital habeas practitioners with that brush.
5.9.2007 7:45pm
Henry (mail):

Henry, can I assume that you're cool with executing heinous murderers in cases where there is no doubt that the verdict was correct, that the person being executed really did the deed?

That would be a foolish thing to assume, because I did not say that I had no reasons to oppose the death penalty other than the likelihood of executing innocent people. But, even if I had no other reason, I deny that there is ever "no doubt." There may appear to be no doubt, but people are framed, witnesses lie, and errors might have occured even when it doesn't seem possible that they did.
5.9.2007 8:24pm
Dave N (mail):
Henry denied there is ever a case where there is "no doubt."

Since even one example destroys an all-or-nothing fallacy, I will provide one.

A highway patrol trooper in a rural part of my state effectuates a traffic stop. He walks up to to the vehicle (a Jeep Cherokee) he stopped and is shot in the forehead for his efforts.

A passing truck driver sees the trooper fall to the ground and reports a description of the Jeep speeding away. This description matches the vehicle the now dying trooper called into his dispatcher.

The vehicle (which is stolen) takes the next freeway exit, which leads him to a very remote portion of the state. The Jeep gets stuck on a washed portion of the dirt road.

The next morning a SWAT team comes across an indivudual, a short distance from the Jeep holding a gun to his head and threatening to blow his own brains out.

This individual ultimately drops the gun and is taken into custody. The bullet that hit the trooper's head exits the back and lodges in the dying officer's hat. When ballistics are done, there is conclusive evidence the bullet came from gun in the guy's hand.

Then the suspect starts confessing--and confesses multiple times to multiple individuals, including to an unsolved homicide in another state (the ballistics match from that crime too). Oh, and this charming individual is a prison escapee who raped a woman before killing at least three people.

I present this case as one where there is "no doubt." Please point to where there might be--and Henry, I will be happy to provide you to the West citation if you think I am exagerating the facts.
5.9.2007 9:27pm
Henry (mail):
Dave N: First of all, what would follow if there were a case in which there were no doubt? Should we instruct the jury to state whether it finds the defendant is guilty beyond a reasonable doubt or beyond any doubt? And what if the defendant pleads guilty? In other words, how do we know which cases are beyond any doubt? As for the facts that you relate, how do you know that they are true? Someone could have been lying at some point. How do you know that the police have not substituted someone else for the real perpetrator, whom for some reason they want to protect? I'm not, of course, claiming that these possibilities are likely. But they exist, and the fact that there is no clear benefit to killing a convicted person instead of imprisoning him suggests that we practice caution.
5.9.2007 9:41pm
Dave N (mail):
Henry,

If you want to be unreasonable in discussion then there is no point attempting a rational dialogue. I presented the facts of a real case and your response is, "So what, a lot of illogical things could have occurred--including magically substituting in a prison escapee who later confessed and professed a desire for the death penalty.

I had a case once where one prison inmate slit his cellmate's throat from ear to ear. I jokingly suggested to defense counsel that they run the Star Trek defense: You know, someone beamed into the cell, killed the one guy and beamed back out again.

The living guy from the cell pleaded guilty and allocuted the facts.

So yes--in both of these cases I am 100% convinced. There is no doubt and to suggest there is doubt is positively mindboggling.
5.9.2007 10:06pm
Dave N (mail):
Oh, for my 2 guys in a cell example, the two were locked in their cells at night in a maximum security prison. No one entered the cell between the time the two were locked in together and when the living guy shouted to correctional officers, "Come get this dead guy out of here."
5.9.2007 10:11pm
Henry (mail):
Dave N: You did not pay attention to what I wrote. You ignored my question as to what the point is of citing a case of no doubt (given that you could not deny that our current standard of beyond a reasonable doubt results in wrongful convictions). What difference does it make that _you_ are 100% convinced in a particular case?

I suggested the possibility that witnesses could lie or that the police could substitute an innocent defendant and you find these "illogical" or "magical." Unlikely, yes, as I acknowledged, but you know that these possibilities are not illogical or magical. As for innocent people confessing and seeking the death penalty, surely that occurs on rare occasions.
5.9.2007 10:32pm
Dave N (mail):
Henry, you wrote "I deny that there is ever "no doubt."

"Ever" was the key word because it implies no exceptions of any kind.

When I provided an example of a case with which I have intimate knowledge and with which there is clearly "no doubt," you responded with illogical hypotheticals directed at MY specific example.
5.9.2007 10:47pm
Harry Eagar (mail):
Well, I didn't really assume that Henry would be cool with executing even the most heinous killers in cases in which there is not only no reasonably doubt but no doubt of any kind.

I just wanted to smoke him out.

I have a practical suggestion in capital cases: at least two of the three forms of evidence must be present. No capital punishment based solely on eyewitness testimony, in other words.

Otherwise, I'm OK with eliminating the homicide-prone. It is significant that in Dave's example, the killer had killed before. It takes a kind of moral monster to advocate a legal system that is helpless in front of the the callous killer who will kill and kill and kill.
5.10.2007 12:07am
Malvolio:
The fact that there is no clear benefit to killing a convicted person instead of imprisoning him suggests that we practice caution.
There is an extremely clear benefit to killing him: he's dead.

And that benefit bring along a lot of side benefits. He cannot kill anyone else (something that is completely not true of an imprisoned person, who might escape, kill a guard, or kill another inmate). Other people might be reluctant to share in his fact and decline to commit murder. The victim's family is comforted. Society demonstrates its abhorrence of crime. And so on.

Against that all you can put is the fear that maybe we might someday execute an innocent person? Not enough. Not nearly enough.
5.10.2007 12:45am
libertarian soldier (mail):
Anderson:
There is something terribly wrong with any system that takes 25 years to execute someone.

I disagree. I like our system exactly the way it is now--maximum opportunities to ensure only the right person is executed and somebody having to spend the rest of his life (if he is guilty) under the Sword of Damocles wondering if today is the day it is going to drop.
5.10.2007 1:34am
John Herbison (mail):
The Workman case is profoundly troubling. A purported eyewitness who testified at trial later recanted, admitting that he had not seen the shooting. Ballistics evidence (developed many years after the trial) indicated that the fatal wound was inconsistent with the type of ammunition fired from Workman's gun, but was consistent with weaponry then used by Memphis police.

Several trial jurors later repudiated the guilty verdict and/or the death sentence, based upon information developed post-trial. One member of the Tennessee Supreme Court
5.10.2007 3:37pm
John Herbison (mail):
Please pardon the incomplete post above.

The Workman case is profoundly troubling. A purported eyewitness who testified at trial later recanted, admitting that he had not seen the shooting. Ballistics evidence (developed many years after the trial) indicated that the fatal wound was inconsistent with the type of ammunition fired from Workman's gun, but was consistent with weaponry then used by Memphis police.

Several trial jurors later repudiated the guilty verdict and/or the death sentence, based upon information developed post-trial. One member of the Tennessee Supreme Court called upon the Governor of Tennessee to commute the sentence, and another member noted that " [t]he date set for execution . . . affords the Governor sufficient time to carefully consider any executive clemency application that may be filed."

Governor Philip Bredesen has now killed one more person than Sedley Alley (executed last year), and two more people than Phillip Workman. I hope to never have to represent Mr. Bredesen at the bar of eternal justice.
5.10.2007 3:42pm
Harry Eagar (mail):
Which would you rather meet in a dark alley, Workman (that was) or Bredesen?
5.10.2007 9:20pm
David M. Nieporent (www):
John, for obvious reasons, courts don't give lots of credence to witnesses who recant long after a trial.
5.10.2007 11:36pm
Carrie:
Well if Workman had not been out robbing the workingman
and getting in shootouts with police then no one would have died in that parking lot.He either killed a man or caused a man to be killed either way he's guilty.
5.11.2007 4:58am
JGR (mail):
PatHMV writes:

"To the contrary, we expend so many resources scrutinizing capital cases so closely, that I think it far more likely that 123 represents very close to the entire population of innocent people sent to death row since 1973."

This comment seems to assume that there is always objective evidence of an innocent person's guilt that will come to light if we just keep scrutinizing the case more closely. While modern technology has indeed made it easier to determine the guilt or innocence of a person in many cases, the truth is that there are still a large number of cases - including capital cases - that are circumstantial. (Recall the widely publicized case of Scott Peterson). An innocent person may be exonerated in these cases by random luck - If the person who actually killed the victim later brags to friends, and has intimate knowledge of the crime scene etc. Otherwise, scrutinizing the case will just keep delivering the same facts - "dead body, husband probably did it" (I am not suggesting that I think Peterson is innocent, but I am sure that there is some non-trivial number of people convicted on circumstantial evidence that are innocent). Recent research has also indicated that eye witness identification is much more unreliable than many experts would have guessed.

While I probably agree with the general spirit of PatHMV's post - the number of innocents condemned to die is fairly small - I would still hold the following position: The set of capital cases where a person is 1) actually innocent of the crime but 2) still convicted of crime and then 3) later proven to be innocent because there is pre-existing objective evidence waiting to be discovered is going to be a smaller number than the set of cases that meet criteria one and two.
Elementary logic.
5.13.2007 2:14pm