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A Room Good Enough to Execute Someone?:
From the San Franscisco Chronicle, via Howard:
  California's 15-month-old moratorium on executions was extended at least until October on Friday to give a federal judge time to visit a planned new death chamber at San Quentin and consider an array of proposed changes in the state's lethal injection procedures.
  At a hearing in San Jose, U.S. District Judge Jeremy Fogel said he needs to see the rebuilt execution chamber before hearing arguments on the state's revisions in prison staff selection, training and infusion of the lethal chemicals. . . .
  The judge tentatively scheduled a visit to the prison on Oct. 1 and a hearing on the state's plan the following day. He gave no hint of his assessment of the proposed changes, but made it clear that the case, and the moratorium, could last many months longer.
Will Judge Fogel be satisfied that the new room is a constitutionally adequate place in which to carry out an execution? Stay tuned. For prior coverage of the case, including a link to Judge Fogel's earlier opinion explaining why he thinks the design, lighting, and crowdedness of the room is constitutionally relevant, see here.
Bleepless (mail):
"All right, Cardinal Biggles. Put her in . . . the comfy chair!" M. Python. Once again, it takes life some time to catch up with comedy.
6.2.2007 7:10pm
FC:
Is this the beginning of the Law and Architecture movement?
6.2.2007 7:10pm
John (mail):
Ah, yes. I recall those many stories about Jefferson frequently examining gallows to see if they met the old cruel and unusal test.

What an unbelievable waste of judicial resources. Assuming Fogel can be regarded as a resource.
6.2.2007 7:12pm
aces:
Reading this reminded me of Oscar Wilde's alleged last words: "Either that wallpaper goes or I go."
6.2.2007 7:40pm
whackjobbbb:
I don't like capital punishment, but it is the law of that state, and this judge does appear to be seeking an excust to ignore that law.

If he needs to understand the floor plan, layout and equipment of the facility, then he can review drawings of it and compare it to other such facilities. And if he's not qualified to read architectural/engineering drawings and make that comparison, then he's not qualified to pass judgement on the architectural adequacy of the space in question, and shouldn't be attempting to do so. I'm available as expert, your eminence.
6.2.2007 7:47pm
Kevin P. (mail):
Perhaps the state can hire someone with expertise in Feng Shui.
6.2.2007 8:02pm
Eliza (mail):
Either a man has committed a act so heinous he deserves to be killed for it or he hasn't. If he has, or if you're sure enough he has that you'll kill him for it anyway, then all this squeamish shilly-shallying is totally inappropriate. Fussing with the lights, getting the atmosphere just so--it's ridiculous.

They're looking for a middle ground. They give the guy the death penalty, but they're not 100% about the death penalty. So they figure that if they can accomplish his death without any of the unpleasantness that goes along with death, then they've split the difference.

But there's no splitting the difference with death. If it's right and you're going to do it, it should be done openly and without shame. It should be done with the grim satisfaction of knowing justice has been done. If that's not your attitude then you've got no business executing people.
6.2.2007 8:03pm
Maureen001 (mail):
There seems to be far more emphasis on the room decor than on the lethal injection process plan change.

Question: Why would it matter to the defense attorney who came up with the new plan? Or what alternative plans there might be?
6.2.2007 9:18pm
Harry Eagar (mail):
One way to look at it is that the anti-DPers have failed with any substantive arguments and are reduced to childish interference.
6.2.2007 9:25pm
Jim FSU 1L (mail):
We could start up a new interior decorating show for death row called Queer Eye for the Hooded Guy. Some soft earth tones would really make that gas chamber less jarring. Maybe add a skylight or a breakfast nook while we're at it to make that death chamber feel less cold and severe.
6.2.2007 9:47pm
Kieran (mail) (www):
Either a man has committed a act so heinous he deserves to be killed for it or he hasn't. If he has, or if you're sure enough he has that you'll kill him for it anyway, then all this squeamish shilly-shallying is totally inappropriate. Fussing with the lights, getting the atmosphere just so--it's ridiculous.

e could start up a new interior decorating show for death row called Queer Eye for the Hooded Guy. Some soft earth tones would really make that gas chamber less jarring.

I don't know the details of this particular case, or the judge's motives. But quite apart from abstract arguments for or against it in principle, judicially sanctioned execution has always been a highly codified and ritualized process, and the rituals are part of what is supposed to lend it social legitimacy. It is no different in this respect from funerals or weddings or indeed court hearings and trials. There is a reason why the justices of the Supreme Court appear in their seats as if by magic from behind the curtains, rather than shuffling in the main door like a bunch of geriatrics. I remember Dahlia Lithwick had a nice piece in Slate a while back about the effect that having to hear cases in temporary quarters (while the main courtroom was being renovated) had on the feel of the entire proceedings.
6.2.2007 10:42pm
Cornellian (mail):
Either a man has committed a act so heinous he deserves to be killed for it or he hasn't. If he has, or if you're sure enough he has that you'll kill him for it anyway, then all this squeamish shilly-shallying is totally inappropriate.

It's totally inappropriate only if one believes the Constitution is a mere suggestion rather than the law. One can argue about the application of due process or cruel and unusual punishment in particular cases, but one can hardly argue that the death penalty is exempt from either provision. Just because someone is properly subject to the death penalty doesn't mean, for example, that it's constitutional permissible to execute him by lowering him feet first into a vat of hydrochloric acid.
6.2.2007 11:36pm
NI:
One way to look at it is that the anti-DPers have failed with any substantive arguments and are reduced to childish interference.

I think some of these substantive arguments the anti-DPers made, like racial disparities and inadequate defense work, should have been successful, but weren't because of a Supreme Court that routinely puts its fingers in its ears whenever anybody tries to talk about the reality of the facts on the ground. Of course this business about a federal judge passing on lighting and ambiance is silly, but if the Supreme Court refuses to care about issues of substance, can you really blame the anti-DP folks for trying something that, while silly, might actually work?

Nobody is seriously arguing that the death penalty is a constitutional imperative. At this point I say get rid of it.

I don't think the DP is unconstitutional, but I do think that 30 years of post-Furman experience has taught us that Justice Blackmun was right on the mark that it is impossible to implement in a constitutional manner. Of the thousands of murders that take place annually, a few dozen end up on death row and a mere handful are actually executed. Who lives and who dies is determined by a long list of purely arbitrary factors. If the Unabomber can't be executed, then why should we execute the schmuck whose gun went off accidentally as he was holding up a convenience store?
6.2.2007 11:44pm
Daryl Herbert (www):
the three-drug sequence -- a sedative, a paralytic agent and a heart-stopping chemical

Just up the sedative dose x10. That should knock the prisoner unconscious and almost certainly render him unable to feel pain.

The paralytic agent, of course, is only used so the prisoner won't squirm when the heart-stopping chemical is administered. We have to keep up appearances, you know. If the prisoner was squirming when he died, people would think the death penalty maybe might be inhumane. But if he's stiff as a board, it's a-okay.
6.2.2007 11:58pm
David M. Nieporent (www):
NI: it's only "impossible to implement in a constitutional manner" because judges who are anti-dp have interpreted the constitution to mandate inconsistent principles in dp jurisprudence under a completely aconstitutional "death is different" ideology.

If the death penalty were treated like any other punishment, one would either conclude that all punishments are unconstitutional -- might we not be able to demonstrate "racial disparities" or "inadequate defense work" in any type of case -- or that none of them, including capital punishment, are.
6.3.2007 12:43am
Jim FSU 1L (mail):
What the hell does "implement in a constitutional manner" mean? As long as certain judges continue to view the death penalty itself as unconstitutional, there will be no way to organize it so as to satisfy them.

If you view the death penalty as per se no less constitutionally acceptable than any other punishment, one really has to question why death penalty cases with no real issues left to adjudicate take 20+ years to finish.

Also, I don't see the purpose of barring executions on intelligence or age grounds for people mature and intelligent enough to premeditate and carry out a murder. If that isn't the bar, then how high is it? Aren't young, unintelligent males the ones most likely to commit murders and be apprehended? Isn't this dangerously close to a de facto ban?
6.3.2007 1:43am
ReaderY:
The idea that the Constitution authorizes federal judges to make pronouncements on state execution-room decor does seem rather silly. Frivolous behavior diminishes public respect for both the Constitution and the Judiciary
6.3.2007 2:05am
Eliza (mail):
But quite apart from abstract arguments for or against it in principle, judicially sanctioned execution has always been a highly codified and ritualized process, and the rituals are part of what is supposed to lend it social legitimacy.

That's exactly right. That's the problem with these people trying to turn an execution into a euthanization--it totally undermines the legitimacy of an execution as an act of justice. If these people had their way they'd just sneak into the fellow's room while he's sleeping and gas him before he wakes up. In their view, the best result would be if he never found out he was executed at all.
6.3.2007 2:05am
Kazinski:
This is a pretty clear case where Congress should use its impeachment power to remove a judge that is using tortuous reasoning to impose his personal policy preference upon the public and the legislature.
6.3.2007 4:47am
Andrew Janssen (mail):
That's exactly right. That's the problem with these people trying to turn an execution into a euthanization--it totally undermines the legitimacy of an execution as an act of justice. If these people had their way they'd just sneak into the fellow's room while he's sleeping and gas him before he wakes up. In their view, the best result would be if he never found out he was executed at all.

For my part, I have more respect for those who are out and out pro-death penalty or are out and out anti-death penalty than those who quibble over trying an execution 'humane'.

Let's not mince words: the judicial killing of a human being is an essentially inhumane act in response to an equally inhumane act. It may be a necessary act, but in my opinion it can never be a moral or humane act. Arguing over the dimensions of the execution chamber is just "tinkering with the machinery of death".
6.3.2007 4:53am
Harry Eagar (mail):
'it's constitutional permissible to execute him by lowering him feet first into a vat of hydrochloric acid.'

If you'd asked me at the top of thread, I'd have said you couldn't get any sillier or more trivial than the judge, but I guess I'd have been wrong.
6.3.2007 5:18am
Brett Bellmore:

I think some of these substantive arguments the anti-DPers made, like racial disparities and inadequate defense work, should have been successful,


IIRC, about 55% of murders in this country are committed by blacks, who make up about 40% of death row. Is the argument here that whites are getting inadequate defenses? Would it eliminate the "substantive arugments" if we executed more blacks to bring their rate of execution more in line with their rate of murder?

Regarding execution methods, if any innovation in execution methods didn't provide an occasion for death penalty opponents to restart all the litigation, execution could be as simple and painless as turning out a light. All you'd have to do is set the convict in a booth, and replace all the air with inert gas; They'd go to sleep without any sensation of suffucation, because there'd be no CO2 buildup in the bloodstream, and be painlessly dead in under a minute.
6.3.2007 9:59am
NI:
Here's why I think it is impossible to implement the DP in a constitutional manner: Suppose there were a statute that said that the maximum penalty for speeding is twenty years in prison, but in practice almost all speeders got a $100 fine. Suppose that 1 speeder out of every thousand was sentenced to twenty years in prison and 999 got a $100 fine. Suppose further that whether you were the unlucky 1 depended entirely on wholly arbitrary factors, such that you had people still paying fines after their tenth speeding convictions and others doing twenty years on a first offense. Assuming the statute is not facially unconstitutional, can you nevertheless understand why the poor schmucks doing twenty years while everybody else pays their $100 fine might have a legitimate complaint?

That really is the way the DP works in actual practice. There are thousands of murders committed every year in this country and only a very small percentage of perps end up on death row, and an even smaller percentage actually see an execution chamber. Who lives and dies depends on factors like wealth, who the victim was, whether you have a good attorney, whether the DA was in the mood to plead, who got on the jury, which judge heard the case. It is not a case of the people on death row being there because they are the most deserving; it is a case of them losing a lottery. It would almost be just as fair to toss a coin. And I'm sorry, but death is different; it's irreversable if it turns out there was an error, and guys doing life are still able to enjoy food, visits and orgasms, unlike someone who has been executed and buried. Guys doing life may find a way to get paroled and resume a more or less normal existence. Is anyone really disputing that death is different?

And you can't blame this state of affairs on liberal judges who oppose the DP. A hundred years ago before the "death is different" jurisprudence came along, the statistics were slightly more tipped in favor of execution, but only slightly. The overwhelming majority of murderers did not end up on death row even then, and the factors that sent them there were just as arbitrary.

Finally, on the racial disparity issue, I don't understand that issue to be about the race of the criminal so much as about the race of the victim.

[OK Comments: NI, so I gather your recommendation would be to make sure the death penalty exists and is regularly used in every state? If I understand your argument, that would make the death penalty much less arbitrary and therefore constitutional. Or is your concern less the arbitrariness of when the punishment is imposed and more that you deeply feel that "death is different," and therefore you need not engage yourself with the usual principles of constitutional law to say the death penalty is categorically unconstitutional?]
6.3.2007 10:28am
c.f.w. (mail):
There was unauthorized construction - the CA prison guard union is intent on a $600 million expansion of death row in San Quentin. A bunch of legislators are up in arms saying the location of death row, if there is to be one, should be away from SQ (which is prime real estate on the bay).

AG in CA is being stubborn about not doing what the experts are calling for - changing the drug mix to be at least as humane as the mix used by vets to put down dogs. Judge is also correct in noting use of untrained folks (no one who has take a "do no harm" oath can help) makes it likely veins are going to be missed and procedures botched. This botching becomes more likely when the work place is not properly lit, or logistics are not right to make the veins pop up. What is helpful to keep in mind is that these design changes were done below the radar, with no coordination with the AG, Governor, defense counsel or Judge F. The major sticking point, it seems to me, is the lack of vets or MDs or PAs or nurses paramedics who can do this work ethically. CA has not addressed that issue, and it is not clear Jerry Brown (the AG) or the Governor are keen on doing anything to move the CA death cases along.

In the area of result oriented judging - keep in mind the harmless error and waiver rule are almost always interpreted broadly in ways that hurt the CA appellants. Also critical are the jury selection rules that allow exclusion of those not supporting the death penalty. The CA SCT judiciary - which upholds about 95% of death cases it sees - seems substantially to the right of the average voter in CA these days.
6.3.2007 10:42am
whackjobbbb:

Just because someone is properly subject to the death penalty doesn't mean, for example, that it's constitutional permissible to execute him by lowering him feet first into a vat of hydrochloric acid.


Cornellian, it was always constitutionally permissible to execute him by hanging/strangling him, which is about as barbaric as anything else if you ask me. As for inserting needles and stopping his heart, that's no more barbaric, for sure.


I do think that 30 years of post-Furman experience has taught us that Justice Blackmun was right on the mark that it is impossible to implement in a constitutional manner.


NI, I'd agree with you to the extent that the 30 years' experience has taught us that "constitutional" arguments can be manipulated sufficiently (with the help of judges like this one), and enough chaff throw into the system, to make it appear impossible to implement the DP, but obviously people are executed regularly, so by definition it's not "constitutionally" impossible.

The anti-DP'ers want to change the punishment protocol, and remove the DP, so it is they who want a changed condition, except they're using illegitimate means to do so. Be honest. Just put it on the Cali ballot and be done with it.



What is helpful to keep in mind is that these design changes were done below the radar, with no coordination with the AG, Governor, defense counsel or Judge F.



c.f.w., I think you mean to say that those parties did not have veto power over those "design changes", changes that they are not qualified to oversee (unless they are "designers"). Those people you mentioned come and go, but the penal system as an institution survives, and organizes itself at the People's direction, using qualified designers as necessary to get the job done.

If there was "unauthorized construction" in Cali, then let's let the People review that, but you can leave the "defense cousel" and "Judge F." out of that particular discussion, since they have nothing to do with the funding of penal systems, nor their basis of design. They have no standing in that process, and again, I highly doubt they are qualified to do so in the first place.

Fogel is just another federal judge that needs to be moved on.
6.3.2007 12:34pm
therut:
A Judge who dares to be an interior decorator. How quaint.
6.3.2007 1:14pm
c.f.w. (mail):
Federalism required and requires the Cal Dept of Corrections to respect the federal court process. Civil rights are what they are because they are not subject to elimination at the whim of the majority (in this case, supposedly represented by the CDC).

Once you tour a place like SQ, you get a sense of the military industrial complex (domestic version). Recall that the CDC now draws more from CA taxpayers than higher education in CA. It is a juggernaut - with the prison guards drawing salaries and overtime allowances that compare favorably with incomes of software engineers with college degrees. If allowed, it will grow at 10% per year for the indefinite future.

Complacency about "the CDC knows best" is really not the answer here.
6.3.2007 2:07pm
whackjobbbb:
Agreed, the costs of incarceration are a problem, like all government costs, but that's another discussion of course.

This isn't about respecting the "federal court process", me thinks. It's about this one federal judge, who's gonna go off on a field trip and "inspect" the interior finishes and systems of a facility that he hasn't the slightest clue about, certainly none to match the knowledge of those familiar with such facilities.

It's always a hoot when I come across a lawyer type trying to play engineer, overreaching frantically. I generally leave them behind in a pile of blubbering goo, as I walk out of the conference room. Stick to what you know, counselors. And tell those judges to keep their butts parked in the courtroom where they belong.
6.3.2007 2:34pm
NI:
OK, to answer your question to me, I really have no philosophical objection per se to the death penalty. In fact, I started off as a DP supporter (before I became a prosecutor and saw how the system operates in actual practice). I certainly don't think it's unconstitutional on its face. I will even agree that different states have the right to decide for themselves whether or not they want the DP. So far, we are largely in agreement.

I think the problem is that there's a double whammy: On the one hand, out of the many murderers, only a very small handful are selected for the DP. That's even true in active death penalty jurisdictions like Florida and Texas, where most murderers still manage to avoid a death sentence. And on the other hand, the specific punishment for which they are being selected is qualitatively different by an order of infinity. So it's not a case of me objecting to one or the other; it's both.

If somehow you could guarantee that within the same jurisdiction most murderers, or even just the most atrocious murderers, or even murders that were done under comparable circumstances, would result in execution, I think my objections would largely vanish. I realize that any sentencing scheme will produce disparities, and that not everything that is unfair is unconstitutional. But I think there is a line at which unfairness becomes so egregious that it does cross into substantive due process, and in my opinion that line has been crossed here. Further, I'm not sure that problem is fixable without doing a complete overhaul of the criminal justice system.

So, were I a state legislator, I would vote to abolish the DP. I live in Orlando, which has 70 murders a year and has had seen two murderers executed in the last five years. By my calculation, that means if you commit a murder in Orange County (Florida), you're still looking at a 1/3 of 1 percent chance of getting a needle. If there is any policy reason in favor of executing those 2 and not the other 348, I can't for the life of me imagine what it is.
6.3.2007 3:56pm
whackjobbbb:
Well, I do have a philosophical objection to the DP, and I too would vote against it (were I to undergo a lobotomy and become a legislator). I'm pleased that I live in a state without it.

We'd be executing far more people if the anti DP folks weren't hard at work, so pointing out the miniscule DP count isn't really an argument against the DP. It's just testimony to the manipulation of the system. That new $600,000,000 death row facility at SQ that somebody mentioned above is testimony to the count on death row, I'd say, and to the illegimate machinations of the antis.

And to my understanding, there are "degrees" of murder, and those are taken into account in sentencing, and evidence available. I would hope that the states with the DP at least make full use of that scale as they apply the DP, and only the most egregious cases see it. But, the most egregious cases are most egregious, and if that state has the death penalty...

I see you struggling with the "unfairness" of the system. You're right... it often is unfair. I don't assume the lawyers and judges always get it "right"... and neither should you I believe. There are many variables, including the jury thing that Slater and I discussed the other day. Just be consistent, and respect the law put in front of you. This judge clearly isn't doing that.
6.3.2007 4:27pm
NI:
We'd be executing far more people if the anti DP folks weren't hard at work, so pointing out the miniscule DP count isn't really an argument against the DP.

Not so. As I pointed out earlier, if you go back and look at statistics from a hundred years ago, before the anti-DPs were so well organized and before federal judges took their arguments seriously, the ratio of executions to murders was slightly higher although not by much.

And while you are right, there are degrees of murder, even murders of the same degree aren't punished the same way. The DA's office in the next county over just cut a deal with someone who killed four people during a home invasion because the police botched the investigation AND succeeded in sending to death row someone whose crime partner's gun accidentally discharged during a convenience store robbery (the felony murder rule) on the same day. Maybe the home invader is lucky, maybe the guy who held up the store isn't, maybe they should both be on death row, but pure blind luck should not be the basis for who lives and who dies. It may govern in Vegas but it should not govern at the court house.
6.3.2007 5:09pm
whackjobbbb:
Yeah, dumb cops are certaily one of the many variables in the unfairness. But them's the rules, and we all gotta play by 'em, and they don't always bring about "fairness". (OT: I don't own a handgun, but that's probably the only sure defense against a home invasion, the "law" sure can't help much, fair or not.)

I'll accept your statement about DP %'s from a century ago, but I guess I was pointing out the many folks on death row today, most of whom will die of old age. We'd be executing far more of them if the antis weren't on the job.

As for the "accidental discharge" guy, he made his choice, and armed robbery is a baaaad thing to have gotten yourself involved with. I assume the triggerman is also scheduled for the juice?
6.3.2007 6:59pm
DeezRightWingNutz:
NI,

Just out of curiousity, how do you know the gun discharged accidentally?
6.3.2007 7:28pm
HerrMorgenholz (mail):
The average execution takes eight minutes under the "three needle salute" system. Saddam Hussein was a dog, and died like a dog, and didn't feel a thing. THAT was efficient.

Honorable people can disagree about what heinous acts deserve death. A man from my own county recently committed suicide by state (gave up all appeals), and the county prosecutor acted like a prom queen ever so happy to give it up in the back seat of daddy's Buick. It was an utterly disgusting display by a political hack. (I hope you're reading, Rachel).

There is no nice way to kill. It is a solemn beast. But if you are going to do it, the ambience doesn't matter, unless you are merely trying to soothe your own troubled soul.
6.3.2007 7:41pm
Smokey:
I had a case before Judge Jeremy Fogel. He is a thoroughly dishonest individual, consumed with ambition; a real DemocRat judge. Fogel is going through these unconstitutional shenanigans in order to keep himself in the limelight. When/if a DemocRat is elected president, you can bet this guy's meddling with the Constitution will be disregarded, and he'll end up on the 9th Circus Court of Appeals. And although he certainly deserves to be impeached, it will never happen; when has a judge last been impeached?
6.3.2007 8:17pm
NI:
whackjobbbb is of course correct that when someone decides to commit an armed robbery they assume the risk of whatever consequences follow, and it's pretty hard to feel too much sympathy for a defendant in such a case. Although the same argument could be made about speeders doing twenty years in the hypothetical I gave earlier, and I think the answer would be the same: Never mind the fact that the defendant is a bum, is the result nevertheless so unfair in a given case given what happens in similar cases that a society that claims to be interested in justice should not allow it to stand?

DeezRightWingNutz, you of course are also correct that since I wasn't there I can't know that it was an accident; all I know is what I read in the papers. However, there seems to be a consensus that it was an accident. But even if it wasn't, that doesn't defeat my primary point, which is that a murderer of four is going to live while an accomplice to a murderer of one is going to die. (The triggerman, by the way, was killed by police so he is out of the picture. Despite being anti-DP on the fairness grounds I've articulated, I'm not going to pretend that his death is any great loss to the world.)
6.3.2007 9:47pm
c.f.w. (mail):
Fogel is one of a bunch of federal and state judges working on lethal injection issues - not alone. The procedure sucks, apparently, meaning it is demeaning and traumatic to those trying to kill. The expert affidavits are pretty illuminating about the problems nationwide, including in FL.

I suspect the Warden and his crew thought they were doing something useful - making things easier on executioners. It is just business, and they provide service with a smile. They routinely say nice things about and to prisoners who, after all, they have to live with. There is a weird dom/sub dynamic to the guard/condemned prisoner relationship.

The problem we need to avoid is sentence inflation - a rising tide floats all boats (including work for the guards unions). The more we use the DP, the more we have ripple effects down through lesser offenses, until we are talking of confining for 30 years a governor of AL who did nothing for personal gain.

Want your kid to get the book thrown at him for a minor drug offense, let the military industrial complex (domestic version) have unfettered discretion.
6.4.2007 12:28am
Harry Eagar (mail):
'untrained folks (no one who has take a "do no harm" oath can help)'

So train them.

You wouldn't have to look far for the already trained. San
Quentin must have thousands of experts at finding veins.

Like I said. When you don't have substantive arguments, fall back on childish ones.
6.4.2007 12:47am
Kovarsky (mail):
can i have, by a showing of outraged comments, an indication of who actually has a working understanding of these issues, and will everybody else not try to drown them out with inapposite cliches about federalism.
6.4.2007 1:00am
Grumpy Old Man (mail) (www):
Decapitation is fast and efficient.

Or why not a "kosher" execution--shackle them upside down and cut their throat with a sharp knife.

Oh, not "scientific" enough.

I smell hypocrisy on both sides of the debate.
6.4.2007 2:56am
Public_Defender (mail):
But quite apart from abstract arguments for or against it in principle, judicially sanctioned execution has always been a highly codified and ritualized process, and the rituals are part of what is supposed to lend it social legitimacy.

Exactly. In the West, execution has been "a highly codified and ritualized process" for centuries. Traditional conservative arguments support strict limits on how it is imposed. After all, this is an execution, not a murder, right?

Given that they actually have evidence to support their view that lethal injections torture defendant's to death, DP opponents have every right (even a duty) to test that evidence in court.

Lethal injection poses its own set of problems. Even assuming that it could be done humanely by professionals, ethical medical professionals will have nothing to do with it. So states are left with untrained non-medical staff to incompetently perform medical tasks.

Seeing how the room is laid out is a minor part of evaluating the process. Prisons sometimes try to hide parts of the process from scrutiny by, for example, using a curtain to stop observers from seeing incompetent prison staff repeatedly stabbing around for a vein.
6.4.2007 7:16am
Houston Lawyer:
Does the judge do abortion clinic tours to ensure that their procedures are so painless? At some point in time the state should just appeal the imposition of his delaying tactics. You don't have to put up with an ass forever.
6.4.2007 12:18pm
whackjobbbb:
NI,

Don't want to get into speeding ticket hypotheticals, but I think we'd all grant to you that there will be some variability in the sentences ultimately dished out to murderers, for all-of-the-above reasons. If you're searching for cookie cutter sentencing, your search will never end, I suspect. I accept that as reality, and so must you. (For example, I think these mandatory sentencing attempts to cookie cutter affairs have been problematic, unqualified layman though I might be.).

Hey, if the cops hadn't shot straight that day, and the shooter survived, perhaps he alone woulda got the juice and the accomplice woulda been out in 20+ years. There are many variables here, I think we agree. What isn't a variable is that an adult consented to and planned for an armed robbery... baaaaad business... and must pay a price. In that state, it potentially includes a lethal cocktail. Khalid Sheik Mohammed didn't wield the boxcutters that day, but if he ever finds himself in front of a sentencing judge... he better get ready to visit the 72 virgins.

But even as an opponent of the death penalty, I CANNOT accept a court officer's blatant disregard of the law, and condonation of and participation in an outright, perverse manipulation of it. The DP sucks, but let's not add to the level of suckiness, by introducing even more suck.

And forget about all this "can't find a vein" nonsense. I've had well-meaning Red Cross types fumble around trying to get at my veins, and it's nothing more than a minor annoyance... and yet I see folks throwing around the "torture" nonsense here.

Per the people of California's direction and presumably using benchmark data from across the land, knowledgeable professionals have programmed these facilities, systems and processes. This hack judge ain't one of those knowledgeable professionals, and yet presumes to go out and "oversee" their work. If you're not qualified to review various bases of design from that seat, then you're not qualified to do a field inspection, and must defer to those who are.

Keep your butt in that courtroom where you belong, buddy.
6.4.2007 1:22pm
Harry Eagar (mail):
I guess you've never been in a hospital, PD. I have.

'Medical professionals' don't always unerringly hit the vein on the first, second or even 10th try.

By your argument, I guess they should just stop and let the patient die.
6.4.2007 1:23pm
Smokey:
And what's this baloney about requiring a medical doctor to be present at executions? That makes little sense, and just gives libtards another argument to latch on to.

The obvious answer: employ a veterinarian. They're experienced in putting down mad dogs.
6.4.2007 2:48pm
c.f.w. (mail):
One recent LI involved 2 hours of trying to find a vein. They had to give the prisoner a bathroom break.

Those who have taken a do no harm oath are not properly permitted to train others to do harm, I would assume. What happens if the guard thinks he or she has a vein but does not, or the needle falls out, or the vein collapses? Again, the process is no doubt traumatic for the guards, dehumanizing, and a section 1983 action (as the USSCT has said) is the right procedure for a challenge and "work out" of the problem.

Fogel initially said it looks ok if CA can come up with a trained, licensed injector. The medical professional associations said fine, just give up your license when you are done.

Perhaps CA should follow the lead of its medical societies and simply impose LWOPP (life without possibility of parole). Save CA some $600 million to spend on scholarships for higher education.
6.4.2007 2:54pm
whackjobbbb:
Yeah, it's real "dehumanizing" when that Red Cross lady has to root around on me to pull that pint. Maybe we should get up a class-action suit for all the "dehumanization" we've all "suffered" while giving blood?

Sorry, this is all just anti-DP machinations. The guy's gonna be gone... and society is gonna kill him. You and I might not like it, but it is what it is, and the perversions these anti-DPers are introducing only serve to corrupt the system as a whole.
6.4.2007 3:11pm
rarango (mail):
I recently had to euthanize my great dane--she died peacefully in a under thirty seconds. Surely the good ole US of A, or any of its member states, can find a way to whack someone--Asking a vet, as one commented alluded to above, seems a good idea.
6.4.2007 3:23pm
Harry Eagar (mail):
There must be millions of competent blood drawers who have never had to take a 'do no harm' oath.

I have a friend, a field biologist, who has several times successfully drawn blood from a half-ounce bird that is the last of its kind.

She wouldn't take part in an execution, I'm sure, but I'm sure there are equally competent biologists who would.
6.4.2007 3:32pm
c.f.w. (mail):
Vets were asked by CA to do the LI's, I think, but said no. CA also declined to prescribe the vet formula for putting animals down.

Psych trauma to the guards tied up for 2 hours (with witnesses watching) trying to find a vein - easy to scoff at but can be significant, and perhaps not symptomatic right away.

Assume there will be a workers comp claim down the line from each guard/executioner (if not a violent crime by the guard), yes?

Training folks to kill so we can teach folks not to kill - freakish tinkering?

Killing a human with needles in front of witnesses is not the same as drawing blood as a biologist.

Using guns in firing squads, they had one rifle shooting a blank for a reason, and it was not for the prisoner.
6.4.2007 4:00pm
Milhouse (www):

The medical professional associations said fine, just give up your license when you are done.

WTF business is it of the professional associations? If they control the issuance of licenses, they do so as agents of the state, the same state whose laws are being executed. I would think that as a matter of law a person can never be denied a professional license for anything he's done as an agent of the state.
6.4.2007 4:43pm
whackjobbbb:
Hmmmm, so first it was "torture" and now it's "psych trauma", that it?

Look, c.f.w., I'm down with you anti's, but get real. Fight the battle legitimately, and quit perverting our system.
6.4.2007 4:49pm
whackjobbbb:
And the guards have all my sympathy, and their paychecks, of far greater value than many others afflicted with REAL trauma.

And if they don't like it, then find another job.
6.4.2007 4:52pm
Public_Defender (mail):
Hmmmm, so first it was "torture" and now it's "psych trauma", that it?

Look, c.f.w., I'm down with you anti's, but get real. Fight the battle legitimately, and quit perverting our system.


Why is it illegitimate and a perversion to argue that an execution method is inhumane?

As to the blood-draw examples, it's a little different when someone spends half an hour (or two hours) trying to get a blood draw and when someone spends half an hour (or two hours) digging into someone trying to kill them.

Name another two-hour execution method that is considered humane.
6.4.2007 9:50pm
Harry Eagar (mail):
If the patient is going to die without that intravenous drip, what's the difference, exactly?

Been there, done that. I'm glad they didn't give up as soon as you would have.
6.5.2007 1:02am
Randy R. (mail):
Herr: "There is no nice way to kill. It is a solemn beast. But if you are going to do it, the ambience doesn't matter, unless you are merely trying to soothe your own troubled soul."

Actually, there are plenty of people in America who would love to be able to pick up an axe and start hacking away at convicted murderers, and think that's the best way to kill 'em.

I exaggerate, of course, but not by much....
6.5.2007 1:37am
Public_Defender (mail):
Actually, there are plenty of people in America who would love to be able to pick up an axe and start hacking away at convicted murderers, and think that's the best way to kill 'em.

No, you don't exaggerate. One of the most frequent popular arguments against 8th Amendment execution claims is that the defendant was cruel to his victim, so we can be cruel to him ("It's better than what he did to her!").

I give credit to the VC readership for not making that argument. It's very telling when someone can only justify an action by saying it's slightly less evil than serial rape and murder.
6.5.2007 6:59am
Harry Eagar (mail):
Gee, thanks.

Coming from someone presenting such ironclad arguments as any speeding ticket is to all other speeding tickets as any homicide is to all other homicides, that means a lot.
6.5.2007 1:52pm
Malvolio:
I give credit to the VC readership for not making that argument. It's very telling when someone can only justify an action by saying it's slightly less evil than serial rape and murder.
Okay, then, I will make that argument.

Person A sells Person B a psychoactive alkaloid without the proper paper work. Person A spends 15 years locked in a 6x9 cell. Person B only spends two years, on grounds that he just provided the money.

This ratio between act and consequence is considered business as usual.

Person C rapes, tortures, and murders Person D. Person C spends five years in a slightly more comfortable cell, and then two hours with a nervous tech poking his arm with a needle and then dies.

Anyone with an awareness level above that of a senile housecat can see that C has been punished far more gently in proportion to the harm he inflicted than were A, and B, let alone D, yet it is C who has the sympathy of "Public_Defender".

And "only justify" it? There are at least a dozen independently adequate justifications for the death penalty. The "better than what he did to her" argument is only a (weak) counter-argument against assertion that the DP is cruel.
6.6.2007 4:39pm