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An Amicus Brief Someone Should Write for Baze v. Rees:
The Supreme Court has granted cert in Baze v. Rees, a case considering how the Eighth Amendment regulates methods of execution — and specifically, whether it allows the currently prevailing methods of lethal injection. This case really calls out for amicus participation to give the Justices context: In particular, it really needs briefs by leading historians on the history and evolution of how executions were carried out over time in the United States and at common law. What techniques were used in different historical periods, and why did they change? A really top-notch brief on the history of methods of execution would provide some very helpful context for the Justices. Obviously it wouldn't decide the case for the seven nonoriginalist Justices, but it would be quite helpful background for all of them. I hope someone is inspired to write a careful and balanced brief on this issue; that person would truly be a "friend of the Court."

Furman72 (mail):
Prof. Debby Denno at Fordham Law is really the leading scholar in this field and I think a few of her papers contain the kind of historical analysis you suggest would be useful in an amicus. For example

Denno's 2002 article in Ohio: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=319340

And her 2007 Fordham Law review article:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=983732
9.25.2007 3:39pm
Trevor Morrison (mail):
Orin, a request for clarification. You say this information would be "quite helpful for all" members of the Court, though not decisive for "the seven nonoriginalist[s]." Are you suggesting it is more likely to be decisive for the two supposed originalists? If so, why? I would have thought that an originalist would be least likely to care why, e.g., particular execution methods "change[d]" over time.
9.25.2007 3:45pm
Cornellian (mail):
I had the same though as Trevor Morrison (the famed "T-Mo" of Cornell?). I don't think an originalist is precluded from recognizing that different facts, available today but not available 200 years ago, lead to a different conclusion as to whether a particular form of execution falls within the original understanding of "cruel and unusual."
9.25.2007 3:59pm
Cornellian (mail):
Argh, I meant to say "I had the same thought . . . ."
9.25.2007 4:00pm
OrinKerr:
Trevor,

Perhaps I should have been more direct and just said, "This is the brief Justice Kennedy will want to read."
9.25.2007 4:12pm
anonVCfan:
If that brief sounds like a lot of work, a summary of the views of Linda Greenhouse, Nicolas Sarkozy, and William Shakespeare would probably be an adequate substitute.
9.25.2007 4:33pm
Trevor Morrison (mail):
That does clear it up!
9.25.2007 4:36pm
Stephen Aslett (mail):
Although it doesn't deal with the history of methods of execution in the way you have in mind, I recommend taking a look at Prof. John Stinneford's forthcoming article on the original meaning of "unusual" in the Eighth Amendment. Stinneford doesn't specifically discuss lethal injection, but it's arguably unconstitutional under his analysis.
9.25.2007 4:47pm
Stephen Aslett (mail):
Forgot the link.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1015344
9.25.2007 4:47pm
David Huberman (mail):
anonVCfan: heh, heh
9.25.2007 4:54pm
c.f.w. (mail):
Hard to see this going anywhere for petitioner. The challenge is "as applied" rather than de jure. How does the USSCT get into the as applied issue, at this point? Seems like it needs to hold off until the folks in California (primarily) go through an evidentiary hearing in the Morales case. If the 9th Circuit after the Morales evidentiary hearing cannot find a way to sort things out for Morales (new rules, standards, personnel [is a non-licensed injector ok?], equipment, lighting, facilities, chemicals, etc.), Kennedy is not going to do much good for any petitioner. This seems like a good case in which to argue the writ was improvidently granted.
9.25.2007 5:24pm
Kent Scheidegger (mail) (www):
Maybe "do[ing] much good for any petitioner" wasn't the purpose. Perhaps Baze is the new McCleskey.
9.25.2007 5:47pm
OrinKerr:
cfw,

Are you assuming that the Justices are somewhere near where Judge Fogel is on this issue?
9.25.2007 5:48pm
Ploni:
The last question presented, according to SCOTUSblog, asks the court to require executions be reversable in the middle of the process! in case a stay of execution comes then. I guess that was always possible with the gas chamber, but other traditional methods of hanging, the firing squad, and old sparky really don't allow for that. And I've yet to see evidence of even one state making that a requirement, so it can't be shooed in under "evolving standards of decency" either. So I don't see how in the world the petitioners think they can win that onee. I don't even think they'd pick up all four liberals, and there's no way Justice Kennedy would vote for them on that issue.
9.25.2007 5:57pm
Anderson (mail):
SCOTUSBlog provides the would-be amicus with a leg up. The intervening 128 years are up for grabs, however.
9.25.2007 6:29pm
anonVCfan:
My comment was obviously facetious, but after Roper v. Simmons, this case seems predictable, and I find it hard to believe that Justice Kennedy is interested in legal analysis. The lesson from that case is that it's the condemned's case to lose. His task is to spin the numbers to create a "trend" of states rejecting the lethal injection method as cruel and unusual. He gets to count the states that have no death penalty. Justice Kennedy will take nearly any argument offered, and Justice Stevens will assign him the opinion so that he doesn't flip-flop.

The originalist justices will note that lethal injection is specifically designed to be humane and relatively painless and that the level of suffering pales in comparison with some of the methods used in 1791, and that it is therefore probably not within the original understanding of "cruel and unusual." Roberts and Alito will adhere to stare decisis and note that the Court has already taken the "evolving standards of decency" approach to the Eighth Amendment, but will call BS on the majority's manufactured trend.

There will be at least 3 opinions, mostly long on rhetoric and short on analysis, the newspapers will disingenuously report on it for weeks, the pundits will speculate about the direction of the Court, and the affected states will switch to some other method.
9.25.2007 8:00pm
Smokey:
Are you assuming that the Justices are somewhere near where Judge Fogel is on this issue?
Ooh. The name Jeremy Fogel bring up unpleasant memories!

Years ago I represented union members when the Local was taken over in Trusteeship by the International union. The International had flagrantly violated the L.M.R.D.A., and we had no doubt whatever that our case was rock solid. We had spent 2 months on the case; the result was 17 pages of chapter and verse, and 54 members of the Local had submitted detailed written affidavits to the court supporting the Local's position.

At the hearing, the International's attorney had submitted a one-page double-spaced document with no citations of any kind, which said, in effect: ''the International can do what it wants.'' In all seriousness, it was that lame.

We ended up in front of Judge Jeremy Fogel -- who from the bench laughed, chatted and blatantly played kissy-face with the International's attorney -- then he chucked our case. All within five minutes. Hey, an international union with several hundred thousand members is a lot more important special interest than a Local with a few hundred members, and the facts and federal law be damned.

So as soon as his name appeared in the newspapers regarding this death penalty issue, I knew that Fogel was doing it out of self-aggrandizement and personal ambition. Fogel is much more of a political animal than jurist. But unfortunately, that seems to be the way to get ahead these days.
9.25.2007 10:46pm
Garth:
i've never understood why they simply didn't use the guillotine. fast, efficient and presumably painless.
9.25.2007 11:00pm
Habeas Clerk:
It seems unlikely that the Supreme Court will rule that lethal injection violates the Eighth Amendment per se. The real battle will be in formulating the standard for "as applied" challenges in individual cases.
9.25.2007 11:37pm
theobromophile (www):

The last question presented, according to SCOTUSblog, asks the court to require executions be reversable in the middle of the process

The phraseology is interesting: "When it is known that the effects of the chemicals could be reversed if the proper actions
are taken, does substantive due process require a state to be prepared to maintain life in
case a stay of execution is granted after the lethal injection chemicals are injected?"

I'm reading this one of two ways. Either lethal injection is reversible (perhaps by administering massive amounts of sodium?) and the executioners ought to have the antidote on-hand (I'm picturing a B-movie type rescue of the psychotic killer), or, in the hypothetical case of the finding of an antidote, the Baze petitioners want to have this issue addressed while before the Supreme Court.

The latter is (obviously?) not justiciable; the former borders on madness. Would not substantive due process require that anyone who could stay the execution have declined the opportunity immediately before the chemicals are injected? Otherwise, you have the makings of a great Cingular commercial: in one frame, the doctors administer the drugs; next frame, the governor calls to stay the execution; executioner picks up; governor talks, but executioner can't hear anything. Prisoner convulses away and dies as executioner shakes phone.

While it's all very dramatic, it does not play out well in real life. At some point, preferably before the needles are in the prisoner's arm, all appeals and avenues ought to be exhausted. Otherwise, the prisoner's life would depend on the speed at which a stay were communicated to the prison system.
9.26.2007 12:08am
Garth:
GuilloTeam Solutions to 8th Amendment Problems

In today's increasingly anti-death-penalty environment, citizens take comfort in the steady leadership of the S.T.A.R. Chamber (Justices Scalia, Thomas, Alito and Roberts), but like the unwanted guest who refuses to leave, Justice Kennedy persists in his stubborn refusal to retire and accept that elections have consequences.

The ability of States to impose capital puishment on the sorry wretches convicted of capital offenses is at risk. Left wing zealots, not satisfied with prohibitions on the execution of minors, retards and blacks, are threatening to shut down America's efficient prosecution of justice.

As you read this, left wing zealots are claiming that death by lethal injection is too uncertain, death by electrocution too painful and death by hanging too gruesome.

Where others see a problem in the long, lingering and, ultimately painful state of American executions, GuilloTeam Solutions sees opportunity.

GuilloTeam Solutions applies an old world solution to an age old problem; efficient executions. Yes, yes, some naysayers have argued that the very efficiency of the guillotine has led to the bizzare experience of the severed head continuing to register the living world. This is an opportunity.

If the purpose of the state is to render punishment, poetic justice rejoices at the prospect of the executed felon soaking in his death scene, confronted with his victims and, hopefully, not lamenting his innocence. Well and truly punished is the cornerstone of American Justice.

Made in China each GuilloTeam execution device is guaranteed to kill. Stainless steel, old growth wood and a lifetime guarantee ensure litigation free executions for years to come.

Avoid the cruel and unsusual... Experience fast, efficient and presumptively painless executions today.

david-sullivan.blogspot.com
9.26.2007 12:09am
Eli Rabett (www):
This whole thing is a side show. IMHO capital punishment should be reserved for the most outrageous cases. I am depressed by how many there are in the US and wonder why. Despairingly
9.26.2007 1:15am
markm (mail):
Garth, the guillotine is so old school...

Presenting, the Explosive Hood. Just lower it over the condemned's head, back off to a safe distance, and trigger the switch to set off the plastic explosives. Guaranteed immediate and complete destruction of the entire head, making it impossible for even one brain cell to perceive pain. An outer armor-steel enclosure conceals all gruesomeness from view, and doubles as a coffin.

Best of all, from the investor's viewpoint: It is single-use, providing a continuing revenue stream.
9.26.2007 11:54am
theobromophile (www):
MarkM,

Might that be "unusual" punishment? Or would it not be material from the standpoint of the one being executed?

Now, I like that idea, as it may preserve organs for donation. Save lives - support the death penalty! :-)
9.26.2007 3:38pm