pageok
pageok
pageok
The Interesting Case of Baze v. Rees:
On Monday, January 7, the Supreme Court will hear argument in Baze v. Rees, a case on the constitutionality of the current method of lethal injection that 35 states use to carry out the death penalty. The question: Does use of the three-drug cocktail of chemicals that states use to carry out executions amount to cruel and unusual punishment because of the risk that state officials could make an error and inadvertently cause the individual to suffer pain before he dies? The briefs of the parties and the various amici are available here.

  Baze is a very interesting case, and I wanted to offer some thoughts on it. (Full disclosure before I begin: I have discussed the case with counsel for the Respondents, although of course this post only reflects my own views.) I think that Baze is an unusual Supreme Court case for three different but related reasons: legal, factual, and strategic.

  First, as a matter of law, there is relatively little legal precedent on point, and the precedent that exists can be interpreted in different ways. The Court has said that the Eighth Amendment prohibits "the unnecessary and wanton infliction of pain," Whitley v. Albers, 475 U.S. 312, 319 (1986). But how do you measure what is necessary — necessary compared to what alternative?

  Second, because everyone agrees that the current method of execution is painless if the procedure is carried out without error, the litigation is largely over the somewhat novel question of risk of error — how much of a risk of error is too much for the Constitution, and how can judges tell how risky a particular proceeding may be?

  Third, strategically, I think it's fair to assume that counsel for the petitioners have goals pretty different from what they're forced to argue. Presumably counsel's the goal is to end executions, not minimize the chances of pain during them.

  How will these factors play out?

  I gather the case will be trivially easy for the four more conservative Justices. For the four on the right, the notion that the Eighth Amendment's prohibition on cruel and unusual punishment could bar a painless procedure on the ground that there is some chance things could go wrong and inadvertently cause pain is likely to seem rather silly. And you don't need to be an originalist to get there: In Estelle v. Gamble, 429 U.S. 97 (1976), the Court held that deliberate indifference to medical needs could violate the Eighth Amendment but that the accidental infliction of pain — pain caused by "[i]nadvertent failure to provide adequate medical care" — did not. Justice Marshall's opinion in Estelle favorably discussed Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947), a method of execution case decided on Due Process grounds, and suggested that it was "similar" to the Eighth Amendment issues raised in medical care cases. If you apply the same standard to methods of execution (which seems sensible, given Estelle's favorable discussion of Resweber and suggestion that it was "similar"), this issue should be easy.

  For the other five Justices, though, I think this is likely to be a more difficult case. My sense is that these five Justices will want to push the states to adopt better procedures. But it's really quite hard to know how to do that; the Justices are not doctors, and they have no particular knowledge of how to regulate what amount to medical procedures. Plus, my sense is that there is very little experimental knowledge among experts as to which means of execution are actually the most reliable in ending life without pain. (Medical associations bar doctors from participating in executions.) And it's not like the Supreme Court can order the creation of a commission to study the reliability of different drug cocktails. Given that, a Justice wanting to push states to improve their methods of execution won't have a lot of obvious specific recommendations to make.

  The brief for the defendant (the one making the constitutional claim) tries to deal with these issues by making two moves. The first move is to aggregate risks: the brief argues that when determining the risk of pain, the Court should aggregate all of the executions that use a particular protocol: the question shouldn't be whether a particular execution is likely to involve inadvertent pain, but rather the chances that someone will suffer terrible pain if the protocol is allowed given the hundreds of people who may be executed using that protocol. (Brief at 42). The aggregation move magnifies the risk; it's not just one person's isolated risk that matters, but rather the cumulative risk of everyone in the future or in the past subject to that protocol.

  The second move is to suggest that the Eighth Amendment requires a factual hearing to hash out all the probabilities. The brief argues that an execution protocol is unconstitutional if, "taken as a whole" — that is, looking at all of the executions that use this particular protocol — [it] presents a significant risk of causing [someone] severe pain that could be avoided through the use of a reasonably available alternative or safeguard." (Brief at 38). The defendant's brief stresses that this is an evolving standard: the idea, as I understand it, is that the constitutionality of a particular protocol requires a factual hearing on (a) the risks and quantity of pain inherent that protocol, (b) the number of executions that will share that protocol, and (c) the latest state of technology and science on reasonably available alternatives and safeguards. It's sort of Learned Hand's Carroll Towing formula as an Eighth Amendment standard.

  I highly doubt the Supreme Court will adopt this test, as it seems too obviously to be a recipe for endless litigation. That's certainly understandable; if you're counsel for the defendant, a day of litigation means a day without an execution. But it's not a very workable test, for lots of reasons; most obviously, it hinges on how courts characterize protocols and whether they group them together or see each slightly different practices as defining distinct protocols. And the idea of measuring risk by aggregating risks of all the other people who have or might be executed under a particular protocol strikes me as rather strange. Why is it relevant what other states do? And how can you sum up all the risks given that the frequency of a protocol being used presumably must be based on a prediction about future choices of the many different states — and the condemned, in states that offer individuals the choice of method of execution — in future decades?

  Anyway, that's my sense of the case. What's going to happen in the case is anyone's guess. If I had to guess — and this is really just a wild guess — I would guess that (a) there will be no one majority opinion, but (b) the controlling opinion will allow this particular execution based on the details of the record and give lots of guidance to push other states to improve their practices. That won't really answer the constitutional question, but it will kick the ball down the road for a few years.

  Finally, I realize the death penalty is a controversial topic, but please keep comments civil and presume good faith in your fellow discussants (and in your blogger, for that matter).
Repeal 16-17 (mail):
This case will likely be decided by Justice Kennedy (the other 8 splitting evenly). Each Justice will vote based on personal beliefs, but add enough legalese and cite enough cases to make to give the impression of legal deliberation.
12.31.2007 1:23am
alias:
Prof. Kerr, I'm curious as to why you don't think this case will be essentially a repeat of Roper v. Simmons. I completely agree with you w/r/t the 4 relatively conservative justices.

For the other 5, they seem ready to whittle away the death penalty nearly every time they grant cert, so long as the decision isn't too broad in any one particular case.

I'd predict a 5-4 decision by AMK with 1+ concurring opinions, 2+ dissenting opinions, and lots of hand-wringing in the press.
12.31.2007 1:31am
K Parker (mail):
push other states to improve their practices
IANAL, so maybe I misread something in the above, but isn't this case characterized by very little in the way of actual evidence of genuine pain-causing misadministration of lethal injections?

How on earth did this ever get granted cert? And what could folks on either side of other contentious issue do to get this kind of favorable standing on the basis of mere speculation?
12.31.2007 1:55am
OrinKerr:
Alias,

That's certainly possible. But note that it was easy to whittle in Roper -- just break off that little piece -- whereas it is much harder to whittle here.
12.31.2007 1:58am
CDU (mail):
If bad facts make bad law, what sort of law does no facts make? The attorneys for those on death row seem to be arguing that some people being executed might be experiencing horrible pain during the execution and that rises to a constitutional violation. However, nobody can say definitively whether this is true, much less make an assessment of how many are experiencing it or how likely it is to happen.

If Orin is right and the four most conservative justices don't see any constitutional problems as long as the pain isn't due to deliberate indifference, they can at least come to a definitive conclusion without these facts. Similarly, the lawyers for the inmates have it easy because for them any chance of pain is too much (and if no procedure would reduce the chance of pain to zero, so much the better). However, anyone who feels that the actual likelihood of pain has a bearing on whether it rises to the level of a constitutional violation seems to be blundering about in the dark on this case.

I have to go with K Parker on this one. How the hell did this get cert?
12.31.2007 2:32am
Gregory Conen (mail):
It strikes me that making the number of executions using a given procedure as part of the test is absurd.

Suppose that there are two different execution procedures, with the same risk of error causing the same level of pain. How could it be that executing x people with each (for a total of 2x people) be allowed, but executing 2x people with either one be a violation of the 8th amendment?

Also, just an off-the-wall thought. Executing a person prevents them from dieing in any other way (obviously), so should the risk of pain from executions be offset by the risk of a painful death? Or even by all the incidental pain the inmate might have suffered from minor injuries, arthritis, etc?
12.31.2007 2:52am
OrinKerr:
CDU,

My best guess for why the Court granted cert is that Judge Fogel had placed a moratorium on the death penalty in California based on a risk of pain theory, see his "Memorandum of Intended Decision," and it looked like it would be years before he rendered a final judgment that could be appealed to the Ninth Circuit. Given that every death penalty case was making the argument, may as well settle it.
12.31.2007 2:55am
BruceM (mail) (www):
I've long argued that the states should abandon this randomly-devised 3 drug cocktail and simply use an opiate/opioid overdose. An overdose of a potent opioid such as fentanyl (or any of its more potent analogues such as carfentanil), or even plain old morphine, oxycodone, or diacetylmorphine (aka heroin) will cause a quick, painless (even euphoric) death, with no complaints over unnecessary or wanton infliction of pain. The use of the barbiturate in the 3 drug cocktail, if given in the correct dose and used properly, in theory will put the individual to sleep before the other two drugs take effect. But it's those other two drugs which are alleged to cause the pain.

An opiate/opioid overdose is by far the most painless, most simple, most unobjectionable method of lethal injection that could possibly be employed. I think the only reason why it is not used is because it would appear to be too pleasant and to give the defendant "one last high" so he can die with a smile, which would somehow negate the "closure" lethal injection is supposed to provide to the families of the victim. That's a load of crap. In addition, if they used heroin (a Schedule I controlled substance) it might stigmatize it far more effectively than any "this is your brain on heroin" waste-of-taxpayer-money TV commercial ever could. Kids would not want to use the drug which they use to execute people on death row. There's no greater stigma than that.

So, use opiate overdoses. Put an end to the Baze argument, give the demised a pleasant, entirely painless death (I once saw someone overdose on opiates, it looked rather pleasant, there was no twitching, writhing, foaming at the mouth, etc), and let's focus on the real, substantive issues of the death penalty.

Though, I'm sorry to say, I believe the Constitution fully authoritizes the death penalty - "nobody shall be deprived of life... without due process of law" explicitly authorizes the state to execute people so long as due process has been afforded. Thus, death cannot be per se cruel and unusual forbidden punishment under the 8th Amendment. We could amend the constitution to abolish the death penalty, as we did with slavery.

CDU: the SCOTUS granted cert because these "method" challenges have been holding up executions and causing tons of prolonged litigation in every state that has the death penalty. The grant of cert was so the SCOTUS can unanimously declare the method of execution is to be left up to the states and as long as death is not intentionally delayed to prolong suffering (i.e. a slow dip, inch by inch, into a pit of acid), it is perfectly constitutional, thus putting an end to all this litigation re: the 3 drug LI cocktail. That's all. Nothing more.
12.31.2007 2:57am
Scote (mail):
Well, on principle, I think the justice system is far too flawed for the death penalty to be a defensible method of punishment--the number of cases of actual innocence being relatively few but also far too many.

However, if we were to be a little more honest about killing people "humanely" (what an ironic idea that is) then we would consider the method used by the Chinese: a point blank bullet to the head. It is seemingly brutal but no more so than the general idea of killing prisoners in general and it is instant and much more fail safe than all the methods used in the US. But no, we would rather pretend that putting people to death is some sort of faux medical procedure. At least the Chinese are honest about death and their near indifference to meting it out, though I doubt that honesty matters much to the prisoners...
12.31.2007 3:36am
George Weiss (mail):
actually it seems to me that the new court doesn't seem interested in kicking the ball and whittling since o'connor left. (which is why theve granted more gitmo cases (which the oconnor court kind of left in a grey area) and the gun case.

anybody else feel this way? anybody disagree?
12.31.2007 3:47am
Oren:
Bruce is right on the money wrt opiate overdose - it just makes the most sense. What bothers me about the current system is the complete lack of any process in coming up with the current protocol. One warden (in OK, IIRC) just made it up one day and all the states copied it.

I should hope that, at minimum, SCOTUS remands for the states to actually research the relevant facts and devise a protocol based on the best current information. The states obviously deserve some deference on the matter but the current state of affairs is plainly absurd.
12.31.2007 3:52am
jim:
And the idea of measuring risk by aggregating risks of all the other people who have or might be executed under a particular protocol strikes me as rather strange.


What am I missing that makes the concept of aggregation so strange? Isn't law fundamentally about a system? It seems only natural to look at the systematic consequences of a law, or in this case the procedure used to execute the law.

I see little moral difference between the state torturing a man purposely and the state risking torturing a number of men whose number is sufficient to ensure that in actuality one (unknown) man will assuredly be tortured. In each case the result is the same. In each case the state has passed a law whose effect falls outside the powers allotted to it.

Perhaps this would be defensible if there were no choice, but there are plenty of ways to execute someone that cause less pain, including some we would think of as barbaric. I think BruceM hits it right on the head that the only reason for the 3-drug cocktail is to provide the sort of show people want to see from an execution. It is unclear to me exactly that a compelling state interest is served by such a spectacle or that such a spectacle is the only way of accomplishing that goal.
12.31.2007 4:01am
Frater Plotter:
Much of the controversy that I've read before on this issue focuses on the use of the paralytic drug, pancuronium bromide, as part of the three-drug cocktail in lethal injection. The claim put forth by Amnesty International and others, is that this drug makes it impossible to tell whether the condemned is experiencing pain, because it paralyzes all their muscles. The brain may be suffering awfully but the body can't express it.

Generally, we regard it as a sign of wrongdoing if a person takes action to deliberately keep themselves ignorant of whether they are doing harm. "I didn't know I was hurting him" doesn't wash when the reason the perp doesn't know is that they took steps to make sure they wouldn't find out. In the case of lethal injection, it looks like in some cases the use of pancuronium does exactly this.
12.31.2007 4:17am
BruceM (mail) (www):
I should also note that opiates/opioids (pure mu agonists, not partial agonists like buprenorphine) have a linear dose to response curve, so there is no upper limit to how much can be given. Of course, when the purpose is death (via respiratory depression - you simply fall asleep peacefully and your breathing slows down until it stops and you suffocate in your sleep) - the only issue is using more of the medicine than was necessary. Big deal, it's not expensive. And while different people have different tolerances to opiates (particularly those who have used them long-term prior to being put into prison), a large enough dose will kill anyone, even if they somehow had been getting large doses of heroin every day they spent on death row. Give anyone 5 grams of IV carfentanil and they will die quickly, and most importantly, painlessly.

The bottom line for me is that we have accepted guidelines for proper euthanasia of animals but not for people. Is the reason for that solely because euthanasia of animals is not meant as punishment, while the execution of death row inmates is meant as punishment? If we could guarantee a quick, pleasurable, 100% painless execution, would the "victim's rights" groups allow it? There are at least 30 ways of carrying out a lethal injection that is guaranteed to be painless, quicker, more reliable, and less frightening than the current 3-drug cocktail (which was indeed made up by some warden in Texas and adopted by everyone else out of laziness). Call me cynical, but I think the reason we don't use any of these guaranteed painless -- and likely pleasurable -- lethal injection methods is because the Victim's rights groups simply won't have it. The thought of the state giving the murderer "one last high" so he can die with a smile (which the murderer did not afford the victim) would piss off the victim's rights lobby. At the end of the day, they won't come out and admit it, but they require any method of execution to include an element of pain and discomfort, the level of which is uncertain -- so the defendant can dwell on how bad it will hurt during his last days on death row. If the defendant was a long-time heroin user and he knows what a heroin OD feels like, the victim's rights groups will say the state is executing him in too merciful a manner. They will whine: Why should the defendant be executed in a euphoric manner when his victim was given a horrible, painful death!

So, using single-drug opiate/opioid overdoses as the sole lethal injection protocol would immediately put an end to the plethora of Baze litigation, but I think the bottom line is the vindictive, vengeful "victim's rights" groups simply would not tolerate it. They might go so far as to say lethal injection with heroin would ENCOURAGE murder. The death penalty is not a deterrent as it is, so the death penalty with a free, state-provided injection of a highly sought-after, euphoric controlled substance might cause an increase in murder. Of course, that's an asinine argument which implicitly concedes the death penalty is no deterrent to anything. But still... I don't think our vindictive, retribution-seeking nation would tolerate euphoric, 100% painless execution methods.
12.31.2007 4:23am
JOe:
Oren's comment above that SCOTUS should remand case back to obtain better facts from which to decide the case. This case got the SCOTUS with out a Daulbert like standard of fact finding. Remanding the case back with instructions to the appelate court should help tp correct a deficiency in SCOTUS jurisprudence - that is deciding cases based on erroneous findings of fact and allowing appellate courts to ignore findings of fact at the trial court level (for example the Michigan law school affirmative action case)
12.31.2007 9:12am
Doug B. (mail) (www):
Great analysis, Orin. I share all your views about why this case is so hard, though I explain here why I think (or at least hope) we will get some kind of majority opinion.

Indeed, Baze presents an interesting test for the Chief's leadership and his commitment to SCOTUS acting like a court and not like a bunch of law professors. Whatever one's personal view on these issues, it is VERY clear in this context that lower courts need a clear legal standard to apply. For lots of reasons, the specifics of the standard matter less than having it established, and it will be interesting to see what members of the Court are willing to put personal views to the side to help achieve some kind of consensus on a legal standard.

Notably, this court-centric perspective helps explain and justify the cert grant. Lower courts nationwide were flipping/flopping and driving everyone crazy with different legal standards being applying to different state protocols. I have been saying for years that Congress (not SCOTUS) should take the lead in trying to clean up this mess, but Congress showed no interest at all at taking up their responsibilities (even though federal executions were stayed, too, based on these issues). Once it was clear that our elected representatives would not step up to the plate, the Justices really had little choice if they cared about the orderly administration of the law.
12.31.2007 9:47am
Friedrich (mail):
I completely agree with Scote. If people want the state to inflict death on criminals, a sanitized version of it shouldn't be used. Instead, let people see death in all its brain-spattering, bloody glory, because hey, deterrence should be better served then, right? I think the best idea would be to bring back the guillotine and televise the executions - keep the blade sharp and it's quick and painless, with plenty of gore providing that oh-so-crucial closure for the victims and deterrence for all those would-be killers out there.
12.31.2007 9:51am
Spocougar:
BruceM:
The current controversy is a result of dysfunctional IVs, not the drugs themselves. Whether or not you use the pentothal/pancuronium/pottasium cocktail or an opioid, you will still have to deal with the possibility of a blown IV and inadvertant subcutaneous infiltration of the drug. I know of no cases where the drugs themselves failed - in all cases the pain that was suffered was a result of a bad IV. The amount of pentothal given (the first of the three drugs) is a staggering amount - many times the amount that would ever be given for the induction of anesthesia, and probably an order of magnitude greater than is necessary to create amnesia. Thus, an opioid based technique would not solve the problem at all. If you wanted to avoid the possibility of a bad IV, then the way to go would be to gas people with carbon monoxide - painless, odorless, and no chance of a malfunctioning IV. Probably the easiest way to solve this problem would be to test the IV with a large dose of saline to make sure everything functions appropriately before giving pentothal, which can be painful if it infiltrates on injection.
12.31.2007 9:51am
Anderson (mail):
the Justices are not doctors, and they have no particular knowledge of how to regulate what amount to medical procedures

Didn't stop Justice Kennedy on partial-birth abortion, now did it? He practically wore a white coat when he wrote that one.
12.31.2007 10:32am
john w. (mail):
"The current controversy is a result of dysfunctional IVs, not the drugs themselves. Whether or not you use the pentothal/pancuronium/pottasium cocktail or an opioid ..."

Do the three drugs in the cocktail come pre-mixed, or does the prison staff do the mixing? I vaguely remember reading some allegations that the prison guards were stealing the pentathol to sell on the black market, and injecting only the other two to the prisoner (obviously, you can't believe everything you read!)

Echoing what others have said: I can't even begin to understand why they don't just use the exact same mix that veterinarians use to euthanize large animals, and thereby avoid this entire controversy.
12.31.2007 10:45am
Realist Liberal:
Another problem with this case (at least that I see) is something that was mentioned on SL&P. Some states have no protocol at all. Other states, like California, have a "manual" that reminds me of "The Book" from American Pie, everyone just keeps adding to it as they read it. Lastly at one state, Ohio, has a very specific protocol including mandatory training and certification in phlebotomy.
So any justice that wants to push certain states to adopt better procedures has to at least somewhat admit that is what they are doing otherwise they risk treating Ohio the same as the states with no standard at all.
12.31.2007 10:54am
Ken Arromdee:
If people want the state to inflict death on criminals, a sanitized version of it shouldn't be used. Instead, let people see death in all its brain-spattering, bloody glory, because hey, deterrence should be better served then, right?

We don't see unsanitized versions of life prison sentences. And argument by gross-out is not legitimate; it would ban open-heart surgery, sexual minorities, etc.
12.31.2007 10:59am
Dave N (mail):
Well, on principle, I think the justice system is far too flawed for the death penalty to be a defensible method of punishment--the number of cases of actual innocence being relatively few but also far too many.
This claim is frequently made by death penalty opponents--yet they never name this mythical "innocent person" who was, in fact, executed.
12.31.2007 11:01am
lralston (mail):
Found this on Patterico, thought it was apt:
Filed under: Constitutional Law, Court Decisions, Crime, Dog Trainer, General — Patterico @ 3:09 pm

This is my promised analysis of Judge Fogel's preliminary opinion finding constitutional flaws in California's execution protocol.

As I said yesterday, I am not impressed by the decision. In my judgment, the judge is stretching to find a constitutional violation where none has been proved.

My primary problem with the decision is that the judge flips the burden of proof, without admitting that he is doing so. He acknowledges that the plaintiff has failed to make a case that California's execution protocol is routinely subjecting inmates to an unconstitutional level of pain. But he blames the defendants for the plaintiff's lack of evidence, and thus shifts the burden of proof to the defendants — without saying that this is what he is doing, or undergoing the rigorous legal analysis necessary to do so.

What did the defendants do to deserve having the burden of proof shifted? The argument is less than compelling. The judge complains about matters as trivial as the sufficiency of the lighting used in the execution chamber, and the type of paper used to record the EKG tracings. He also appears to find constitutional significance in matters such as whether any of the team leaders suffer from post-traumatic stress syndrome, or whether they have been disciplined for things like smuggling illegal drugs into the prison.

Finally, the decision appears to have been written with the media in mind. There are legally irrelevant passages that are included for the apparent purpose of being quoted in newspapers. Perhaps worst of all, the judge relies for part of his evidence on articles printed in the New York Times and the Los Angeles Times.

I kid you not. Details in the extended entry. [Extended entry]
12.31.2007 11:05am
K Parker (mail):
OK, so this case is being heard because of a nonsensical holding by someone on the 9th Circuit? It is starting to make sense now...
12.31.2007 11:23am
NaG (mail):
Some states still use the electric chair, don't they? And doesn't execution by that method cause pain?

I would agree that torturing someone for an hour before they die would violate the 8th Amendment. The execution method should strive to kill the subject as quickly as possible. If there is the occasional mistake that creates some pain but still kills the subject quickly, I just don't see this as cruel or unusual. If anything, I find the prospect of criminals dying with big smiles on their faces to be a rather creepy prospect.

I will also mention that I believe that the death penalty should be scrapped in favor of life imprisonment without possibility of parole. But I do not believe that the death penalty itself violates the 8th Amendment, nor that a potentially painful method of death violates it either.
12.31.2007 11:34am
Pliny, the Elder (mail):
Didn't Wilson V. Seider hold that the pain does not count unless the government acted intentionally or with deliberate indifference? It seems that would apply here.
Or am I mistaken?
Of course, as in a handful of litigation contexts, e.g., immigration, when to delay is to win, throw everything at the wall
12.31.2007 11:44am
Connecticut Lawyer (mail):
I wonder if it would be constitutional to use the guillotine?

While we'll never know for sure, it seems likely that it's painless - in a fraction of a second, poof, it's over, no time for pain or anything.

It is, however, pretty gruesome - but does that by itself make a method of execution cruel and unusual? I think not, but I'm no expert on this area of the law.
12.31.2007 11:47am
Dave N (mail):
OK, so this case is being heard because of a nonsensical holding by someone on the 9th Circuit? It is starting to make sense now...
Nonsensical yes, but this one can't be blamed on the Ninth Circuit. Judge Jeremy Fogel is a U.S. District Judge from the Northern District of California.

Of course, his ruling would have eventually been appealed to the Ninth Circuit--and depending on the panel, almost anything could have happened there. Hopefully this case will short-circuit both Judge Fogel and the Ninth Circuit.
12.31.2007 11:52am
Duffy Pratt (mail):

This claim is frequently made by death penalty opponents--yet they never name this mythical "innocent person" who was, in fact, executed.



Here's one: Alton Way -- executed by Virginia in 1990. He was found guilty of raping and stabbing a white woman 61 times. The murder happenned the day he was released from the army, with an honorable discharge. He had no criminal record. That night he got really, really drunk with a friend of his. We found out after the trial that the friend had also unknowingly plied his drink with LSD.

Really late at night, he remembers his friend getting him out of the car and dragging him into the victim's house. The friend took him to the bathroom, telling him "Look what you did, look what you did." They went to his fathers house, and his father called the police. He confessed while still stoned and tripping.

At trial, the arresting officer testified that he was perfectly coherent when he gave the confession. Just before the execution, we got the officer to sign an affidavit that he had lied about Alton's state when confessing, because of pressure from the prosecution. We also got another witness of the partying, who was interviewed by the prosecution but not disclosed to the defense, to swear about the LSD that the jury never heard.

His friend was interviewed once, briefly, about what happenned. He did not appear at the trial. Just before the execution, we found out that the friend was serving a long, long sentence in Michigan for a series of violent rapes of elderly white women. We interviewed him, and got him to spit in a cloth during the interview. Like Alton, he was a secreter, and they had the same blood types. He didn't confess.

At the habeas hearing, the district judge said "He can't be innocent. I've seen the pictures of the victim." We lost and Alton died in August 1990.

Alton is not a myth. But he's not well known either. He didn't get a lot of publicity because, for the people at the resource center where I was working, this sort of thing was the norm, not the exception. This case had many more unusual and hilarious twists than some others (like the State's psychiatrist himself having been committed several times, even before the trial because he tended to think he was the present King of Greece).

Look at the results that the Innocence Project has gotten looking into cases where there is preserved DNA material. The number of times that the state gets it wrong is pretty shocking.

Oh, and one other little thing: when they were death qualifying the jury, both the prosecutor and the judge kept referring to Alton as a "boy." It went like this: "This boy is accused of raping and stabbing to death a 61 year old white woman. If the evidence shows that this is what happenned, would you have be able to consider inflcting the death penalty on this BOY." (Not objected to. Harmless error under ineffective assistance claim.)
12.31.2007 11:56am
Duffy Pratt (mail):
Oh, and on the last part, I forgot to mention that we also discovered that the prosecutor had been an officer in the Klan, and that the judge had, several times, sentenced blacks to an alternative sentence of doing work on his friends farms.
12.31.2007 11:58am
JOe:
John ; The use of a drug cocktail to euthanize large animals may not work on humans - a drug cocktail used on various animal species may be quite pleasant on the specific animal but quite cruel to a human and a drug cocktail quite pleasant for a human may be quite cruel to another animal species. A frequent argument by the no death penalty advocates is that we dont use the "the drug cocktail for dogs or cats". Well of course not - that drug cocktail would be cruel to cats and dogs.
12.31.2007 12:08pm
Dave N (mail):
Before we canonize Alton Waye, here is how Justice Thurgood Marshall, that raging conservative described Mr. Waye and his crime in dissenting from the denial of certiorari:

In state habeas corpus proceedings, petitioner argued that he was denied effective assistance of trial counsel as evidenced by that counsel's failure to object to an instruction that was inconsistent with the decision this Court announced, one year after petitioner's trial, in Sandstrom v. Montana, 442 U.S. 510 (1979). Petitioner's sole defense at his capital trial for murder was lack of premeditation. The evidence at trial showed that petitioner had consumed a number of beers on the evening of the crime and that, immediately after killing the victim, he telephoned police to report that he "had killed somebody." Petitioner accompanied sheriff's [469 U.S. 908 , 909] deputies to the victim's house, where he showed them the body. Petitioner was convicted of capital murder on April 7, 1978, and sentenced to death.
Next contestant, please.
12.31.2007 12:18pm
Dave N (mail):
The Supreme Court of Virginia described the facts of Waye's crime in this manner:

The evidence shows that the victim, a 61-year-old widow, lived alone in a house located nine-tenths of a mile from a public highway in a rural area of Lunenburg County. The defendant, a 22-year-old factory worker, lived with his father approximately two miles from the victim's home.

In the late afternoon of October 14, 1977, the defendant met a friend, Len Gooden, at a cafe in Kenbridge. After each had consumed several beers, they departed between 7:30 and 8:00 p. m. and obtained a ride to the defendant's home. From there, they embarked, with the defendant driving his own automobile, on a trip to Blackstone to "see a girl named Queenie." Apparently unsuccessful in finding "Queenie," the two men visited other towns in the area. Gooden slept throughout most of the trip, rousing only occasionally as the defendant drove around the countryside.

Between 10:00 and 10:30 p. m., Gooden roused momentarily when the defendant "drove up in the yard" of an unfamiliar house, stated that he "would be right back," and got out of the car. Gooden roused again when the defendant returned and announced that he had "killed the lady."

The defendant drove to his home and told his father that he had "killed a woman." The defendant then telephoned the sheriff's office, reported that he had "killed somebody," and gave his name and directions to his home.

When police officers arrived at the Waye residence, the defendant told them that he had "killed a woman and put her in a bathtub," but that he did not know whom he had killed. Asked where "it" happened, the defendant offered to show the officers where the killing occurred. The defendant accompanied the police officers and directed them to the victim's home. Following the defendant, the officers proceeded through a side door and then upstairs to a bathroom, where they found in the bathtub a woman's nude and mutilated body.

Immediately, the defendant was arrested and advised of "his rights under the Miranda decision." In the police car, the defendant stated that he "did it just like they do on television . . . wiped the knife and everything." He said also, "Man, wait until my friends hear about this."

At the police station, the defendant orally and in writing confessed to killing the victim. In the written confession, he stated that he went to the victim's home and asked to use her telephone. According to the defendant's statement, the victim, clad in a nightgown, admitted him and, without protest, accompanied him to her second floor bedroom. There, they engaged in sexual intercourse, during the course of which he bit her breasts, severing one nipple. Afterward, he struck the victim numerous times in the face with his fists. Then, he went downstairs, found a knife in a kitchen drawer, returned to the bedroom, and stabbed the victim. Dragging the body to the bathroom, he placed it in the bathtub and attempted to cover it with water. Unsuccessful in the attempt, he found a bottle of Clorox and poured the contents over the body. Before leaving the house, he ransacked the interior, took the telephone "off the hook," and turned on the television, hoping to make it appear that "someone had been in and robbed" the victim.

Inspection of the victim's home revealed that it was in shambles. Contents of drawers were strewn about the rooms. The victim's purse had been emptied on a desk. Blood stains appeared both upstairs and downstairs. The murder weapon, a butcher knife, was found on a table beside the victim's bloodsoaked bed.

Scientific evidence established that the victim's body suffered 42 separate stab wounds. The face was battered and bruised beyond recognition. Bite marks appeared on the breasts and buttocks. The hands bore several "defense wounds." The vaginal and anal cavities contained spermatozoa.
Waye v. Commonwealth, 251 S.E.2d 202, 205-06 (Va. 1979).

The Virginia-Pilot there were "questions" about the crime, but their story merely indicates that the cousin could have been inside as an alternative suspect--and did not provide a whit of evidence that Mr. Waye was factually innocent.

I understand that Duffy Pratt believes that Mr. Waye is an executed "innocent man." But his beliefs hardly provide exoneration or evidence that Mr. Waye was factually innocent.
12.31.2007 12:39pm
Respondent:
Orin,

This topic doesn't appear to be in your unique area of expertise; so did Respondents consult you for advice on how to pitch to Justice Kennedy?
12.31.2007 12:43pm
Duffy Pratt (mail):
Both of the court accounts mention "a number of beers." They don't give any impression of how much alcohol was involved, or of the LSD. Nor do they mention the affidavit of the arresting officer, who later admitted that he understated Alton's inebriation under pressure from the prosecution.

And of course, neither account says anything about Gooden serving time for a series of rapes of elderly white women.

I guess its just a coincidence that Alton was riding around with a person who was later convicted of a series of crimes very similar to this one (including bite marks and the use of a knife to hold the victims at bay). Or maybe Alton gave Gooden a taste for this sort of crime. But I also think its reasonable to believe that Gooden committed the crime, and then somehow convinced a seriously drunk, tripping, and dumb Alton that he had done it instead.

As for the confessions, they were taken while he was still drunk and tripping. As I recall, some of this information didn't make it to the Supreme Court because it had been procedurally barred.

Of course you don't need to take my word for it. But I also think you are seriously fooling yourself if you take the summary of the Virginia Supreme Court as gospel.
12.31.2007 1:08pm
Dave N (mail):
Duffy Pratt,

As I stated, you believe in good faith that Alton Waye may not have committed the crime. But belief--or even an alternative suspect--is not exoneration. My original post stands. I still do not know of a single executed person who was factually innocent of the crime for which he was executed.
12.31.2007 1:12pm
ejo:
the "squeamish" approach to executions talked about above is done for the benefit of the Courts, not death penalty proponents. The "Pro" side has to keep things sterile for Courts, ignoring the harm done, looking for any excuse to ensure that some criminal psychopath doesn't get the punishment allowed by our Constitution and the jury which heard all the evidence.
12.31.2007 1:20pm
Duffy Pratt (mail):
That's fine. But remember that you are dealing with a very strong presumption of guilt for people who have been executed. To satisfy you, I think one would probably have to get a confirmed DNA analysis of the evidence. But maybe even that would not be enough.

Let me ask you this. Suppose in Waye's case, the semen had been preserved. And suppose it showed that Gooden had raped the woman. Would that count for you? Or would you still say that you didn't know of a factually innocent person, because Gooden could have done the rape, and then Alton did the stabbing?
12.31.2007 1:20pm
Dave N (mail):
I think that anyone suggesting that an "actual innocent" has been executed bears the burden of proof. Let me turn it around, let's say that Mr. Gooden was charged and sentenced to death for murdering the woman. You would now be saying, "Wait a minute! Alton Waye confessed to the crime. He led police to the body. Why isn't he the one on death row?"

IF you had evidence that the sperm belonged to Mr. Gooden that certainly would cast doubt on whether Mr. Waye killed the vic--but you have no such evidence. Your evidence is that they both were secretors, so Mr. Gooden is merely an alternative suspect.

While certainly no expert on Virginia law, I would also note that if the two were acting in concert, including in a burglary that resulted in a homicide, both could be convicted of the crime.

And looking at the evidence in the light most favorable to the condemned IS NOT proof of anything after a jury has determined guilt beyond a reasonable doubt.
12.31.2007 1:32pm
Ken Arromdee:
Does it actually matter that some innocent people might be executed?

No, really.

It doesn't matter to us that some innocent people get life sentences.

The usual "difference" death penalty opponents point to is that someone sentenced to life can still be exonerated after his sentence starts.

The problem with this idea is that since exoneration of innocents is not guaranteed, there will still be some remaining innocent people even after all the post-sentence exonerations are taken care of. If you're concerned about innocent people being irreparably punished--regardless of quantity--the fact that *some* innocent people will be exonerated after the start of the sentence shouldn't make any difference, since some won't be, and you're worried about there being any at all.

Of course, I wouldn't like to be the innocent person who gets executed, but then I wouldn't like to be the innocent lifer who never gets exonerated, either.
12.31.2007 1:44pm
TomB (mail):
Both sides are using this case as a proxy for the death penalty itself. Why do we keep wasting our time doing this?

Let's just outlaw the death penalty once and for all. Oh wait, the politicians are unwilling to do this. And the majority of the people want to continue having death as a penalty option.

Get a life people on the right -- we're never going to outlaw abortion.

Get a life people on the left -- we're never going to outlaw capital punishment.
12.31.2007 2:10pm
Duffy Pratt (mail):
Dave N:

To be fair, if I represented Gooden in your scenario, I would have said all that you claim, and more. And if he had been sentenced to death, he never would have been convicted of a violent rape of an elderly white woman. So that evidence in Alton's favor would never exist. Who knows what Alton would have done if free for the intervening 12 years?

OK, I agree that after trial a person who makes a claim of factual innocence should have the burden of proof. My question for you was what standard of proof you would go by? Also, I have to admit that my impressions of this case are colored by my personal experience, having conducted or witnessed some of the interviews with the people involved, etc... So my conviction that the "burden" has been met involves alot of information that would never make it into a legal proceeding (and is now hazed over by a 17-18 gap).

When working with people on death row, there were some who were clearly guilty of capital murder. Others who might have been guilty of murder, but not capital murder. And quite a few who might or might not have been guilty of anything, but got railroaded through a fundamentally unfair process. We got new trials, new sentencing proceedings, or exonerations on almost all of the ones in the last category, but not on all of them. On all of those cases, I have serious doubts about factual guilt or innocence (if such a thing exists).

It may be that no-one has ever proved, to the satisfaction of death penalty proponents, that an innocent man has been executed. But from my experience with the process, I think it is preposterous to assume that that means that no innocent person ever has been executed. I often argued that the death penalty opponents should spend more time after executions are over to try to establish actual innocence. But the people I was working with were too pressed for time, were not particularly good at private investigation, and were too interested in saving someone who was facing execution, to bother with sticking with a case where they had failed.
12.31.2007 2:30pm
William Oliver (mail) (www):
"However, nobody can say definitively whether this is true, much less make an assessment of how many are experiencing it or how likely it is to happen."

Actually, some can. I don't have the case handy, but I have discussed this with a couple of Medical Examiners who have posted a case or two. There are a couple of pretty good examples of this being done badly. The idea that one can take a relatively complex series of intravenous drug applications and *never* make a mistake strains the credibility of anybody who has started a lot of IVs.

There are, of course, many painless methods of execution. That has never been the point. The most trivial is a 10-guage shotgun blast to the base of the skull. Fast, painless, and unlike drugs, essentially foolproof. There is no constitutional guarantee of a pretty corpse.

The problem with these proxy arguments is that it doesn't matter what the Supreme Court actually decides -- there will always be another method, and another challenge. The universe of possibilities for killing people is surprisingly large, and mostly untapped.

This reminds me of a story I heard from another colleague who testified in one of these cruel and unusual punishment cases. After hearing the the arguments against the current method, the judge told the *plaintiff* to describe a method they felt would meet their criteria. The judge told them that if no such method existed, then their arguments were irrelevant, and if such a method did exist, then they'd kill the guy using that method.
12.31.2007 2:30pm
Duffy Pratt (mail):
By the way, on the main topic, I tend to agree that the death penalty opponents use the method as a proxy for the practice in general. There's no step that we wouldn't take if it had a reasonable chance of staying the execution. (Ever think of filing bankruptcy, and arguing that that created an automatic stay?)

Personally, once the state decides to kill someone, I don't particularly care how they go about it. In the U.S. we have always used the latest technology to create an illusion of "humane" executions. Other advances in execution technology, like the guillotine, were for the same person.

Here's the method I've liked. The defendant is condemned to be squashed like a bug. He will be strapped down, underneath a 100 ton slab of concrete, suspended 35 feet above him. Then the concrete is released. There will be two varieties of sentence: face down, and face up for especially heinous crimes.

This method wouldn't bother me any more than lethal injection.
12.31.2007 2:37pm
Mike Gallo (mail):
I'm no Constitutional scholar, but if a punishment must satisfy both stipulations A and B to be prohibited, whereas A is being cruel, and B is being unusual, how is it possible that a commonly-performed execution method could be A and B? I mean, it's not unusual if it's common, right? From a logic perspective, the argument is fundamentally flawed:

"If P and Q, then not M; therefore, if P or Q, but not P and Q, M.

Is this an oversimplification?
12.31.2007 3:05pm
krs:
By the way, on the main topic, I tend to agree that the death penalty opponents use the method as a proxy for the practice in general. There's no step that we wouldn't take if it had a reasonable chance of staying the execution.

If more people would admit this, the debate would be healthier. The Baze case is something of a sham in this sense. I doubt that the Supreme Court is any more concerned than the petitioner's counsel about the possibility of pain to the petitioner if the petitioner is executed.
12.31.2007 3:12pm
Simon Dodd (mail) (www):
What's the consensus among foreign jurisdictions on this question? I would think that at least three members of the court would want to know the answer to that, lest they get themselves into the sort of pickle Justice Breyer got into with Hudson v. Michigan.
12.31.2007 3:18pm
John Herbison (mail):
Th[e] claim [of factual innocence] is frequently made by death penalty opponents--yet they never name this mythical "innocent person" who was, in fact, executed.

Just a point of curiosity regarding this Scaliaesque talking point and its proponents: what capital crime did Jesus in fact commit?

Is that background noise the sound of fundamentalist heads exploding?
12.31.2007 3:23pm
William Oliver (mail) (www):
"I doubt that the Supreme Court is any more concerned than the petitioner's counsel about the possibility of pain to the petitioner if the petitioner is executed."

I think that's the thing the Supreme Court needs to make an explicit statement about if it hasn't already. I'm a forensic pathologist, not a lawyer, and the SCOTUS might have already done this.

However, I think that the Founding Fathers never meant to exclude *all* pain from a punishment. I personally think they were attempting to exclude the rather odd and bizarre methods of torture that were used in the 17th and 18th centuries. Hanging, firing squad, lethal injection, etc. are not painless, but they are also nothing compared to drawing and quartering, burning, adoption of Iroquois torture methods, etc., and it is that tradition that the Founding Fathers were looking back at.

What is most amusing is the idea that SCOTUS is picking at splinters when it comes to execution, but ignores the beam when it comes to *real* torture of "detainees."
12.31.2007 3:26pm
FC:
Execution should be safe, legal and rare.
12.31.2007 3:27pm
FC:

Just a point of curiosity regarding this Scaliaesque talking point and its proponents: what capital crime did Jesus in fact commit?


Sedition, in the apposite phrasing of Wikipedia.



Is that background noise the sound of fundamentalist heads exploding?


No.
12.31.2007 3:34pm
Simon Dodd (mail) (www):
John Herbison:
Just a point of curiosity regarding this Scaliaesque talking point and its proponents: what capital crime did Jesus in fact commit?
I think you're appealing to some kind of foreign law there, John. I don't think that's particularly helpful in American capital jurisprudence...

Why would the fact that historically, innocent people have been killed by foreign jurisdictions be any more an indictment of the American death penalty than the fact that historically, people have been jailed without due process in other jurisdictions would be an indictment of American due process?
12.31.2007 3:39pm
Mike Gallo (mail):
For Jesus, sedition was secondary to blasphemy, IMHO. It was the Jewish community using their laws to justify His criminality to the Romans, who were then forced by public pressure to use their laws to put Him to death for sedition.

Getting back to the topic; I pose a second question: Was Jesus' execution cruel and unusual? Cruel, certainly, but not unusual.
12.31.2007 3:46pm
therut:
As a physician this is the dumbest thing I have ever heard of. I inflict more pain on a daily basis. Putting in a NG tube is one procedure done routinely without any mind numbing medicine. This is pure raw ideoligical lawyering at its worse. Shameful.
12.31.2007 3:52pm
Dave N (mail):
Duffy Pratt,

Thank you for a thoughtful response. I certainly am not claiming that NO factually innocent has ever been executed--but I certainly have not been persuaded of any such execution.

As Justice Scalia noted last year in the context of whether someone who was "actualy innocent" had been executed, "If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby." Kansas v. Marsh, 126 S.Ct. 2516, 2533 (2006) (Scalia, J., concurring). I recommend Justice Scalia's concurrence in whole, but resisted the temptation to cut and paste it in its entirety.

As to what standard I would use to be persuaded--I agree with the Supreme Court that it must be higher than that to overcome a procedural bar due to a fundamental miscarriage of justice.

On a final note, because I do not want to be accused of hogging this thread, I think that Baze will ultimately reinforce this principle enunciated in Marsh:

The dissent's general criticisms against the death penalty are ultimately a call for resolving all legal disputes in capital cases by adopting the outcome that makes the death penalty more difficult to impose. While such a bright-line rule may be easily applied, it has no basis in law. Indeed, the logical consequence of the dissent's argument is that the death penalty can only be just in a system that does not permit error. Because the criminal justice system does not operate perfectly, abolition of the death penalty is the only answer to the moral dilemma the dissent poses. This Court, however, does not sit as a moral authority. Our precedents do not prohibit the States from authorizing the death penalty, even in our imperfect system. And those precedents do not empower this Court to chip away at the States' prerogatives to do so on the grounds the dissent invokes today.
126 S.Ct. at 2529.
12.31.2007 3:55pm
Spocougar:
therut:
I agree with you as another physician. The "pain" inflicted happens all the time in the OR and in the ICUs as complications with normal medical procedures. I hope I never get sued for "cruel and unusual punishment" in the course of competent treatment of a patient.

johnw:
The three drugs are administered sequentially. The pentothal creates amnesia and a deep state of sleep. In fact, the doses are so incredibly huge that the pentothal alone would also create akinesis and total unresponsiveness to noxious stimuli. It's very likely that the pentothal alone would cause death from apnea. This drug is followed by pancuronium, a paralytic. Because of the huge dose of pentothal this drug is rather redundant, but is used to ensure akinesis. Pottasium follows these two and is the lethal component. It sends the heart into fibrillation and death soon follows as blood flow stops. During open heart surgery we purposefully use pottasium to stop the heart and facilitate surgery. Again, the drugs themselves are no problem. The only problem is whether or not the IV is reliable.
12.31.2007 4:39pm
Fredrik Nyman XXX (mail):
(Medical associations bar doctors from participating in executions.)

What's the deal with this? How can the medical associations enforce this?
12.31.2007 4:43pm
Elliot123 (mail):
Is there anything that makes an execution special regarding the state inflicting pain? Couldn't the same argument be used for just about anything the state does? Do handcuffs cause pain? Can they be applied improperly? In the aggregate, is it probable some handcuffed person will suffer pain at some future date? Are handcuffs therefore unconstitutional?

Or, how about the Muzak played in the Chicago federal building elevators? Now that is certainly unwarranted and unconstitutional infliction of pain.
12.31.2007 5:20pm
David M. Nieporent (www):
My original post stands. I still do not know of a single executed person who was factually innocent of the crime for which he was executed.
Dave N: I assume you mean since the DP was reinstated in Gregg. While I don't have names off the top of my head, I thought it was pretty well acknowledged that in the old days, it happened.
12.31.2007 5:39pm
Spocougar:
Fredrik Nyman XXX:
The various state medical boards would revoke your medical license, thus preventing you from legally practicing medicine. This has been fought in the courts in North Carolina. The state supreme court eventually ruled that the state medical board had no authority to contradict state law, which required the participation of a doctor, and punish the participating physician. That's my understanding - I'm not a lawyer and can't fill you in with the details. It really is an interesting question of where the authority of the medical boards end with regard to policing the behavior of their physicians.
12.31.2007 5:49pm
Spocougar:
As a follow up, the various medical associations (e.g. the American Society of Anesthesiologists) also bar their members from participating in executions. I recently attended a speech on this topic by the former president of the ASA, who admitted when questioned that the most they could do is stop the offending physician from having to pay yearly dues. The medical associations have no authority to curtail ones practice or revoke credentials.
12.31.2007 5:54pm
David M. Nieporent (www):
Jumping back to the original question of what would happen, I agree with the first post:
This case will likely be decided by Justice Kennedy (the other 8 splitting evenly). Each Justice will vote based on personal beliefs, but add enough legalese and cite enough cases to make to give the impression of legal deliberation.
Kennedy is going to decide this case. My guess is that he'll decide it the same way he decided Vieth v. Jubelirer and Parents Involved: he'll come down in favor of the 'conservative' holding, but he won't categorically rule anything out, leaving a theoretical opening for the liberals to come up with a new argument that might sway him.
12.31.2007 5:56pm
Dave N (mail):
David M. Nieporent:

Yes, to clarify, I meant in the post-Gregg era, from 1977 to present day.

I agree Justice Kennedy will be key and that the majority will contain the same majority as in Marsh (Roberts, Scalia, Kennedy, Thomas, and Alito).
12.31.2007 6:12pm
allwrits (mail):
As to Orin's question as to why now:
My best guess for why the Court granted cert is that Judge Fogel had placed a moratorium on the death penalty in California based on a risk of pain theory, see his "Memorandum of Intended Decision," and it looked like it would be years before he rendered a final judgment that could be appealed to the Ninth Circuit. Given that every death penalty case was making the argument, may as well settle it.
Cert was granted in Baze because it is a "procedurally clean" LI case. Baze presents the first LI case to reach the Court that, at the time cert was filed, there wasn't a warrant then pending but where federal habeas had been completed. Additionally, because it is coming up through state vs. federal litigation, it means the Court can address the substantive merits of LI.

As to Dave's question as to "actual innocent" and proof:
I think that anyone suggesting that an "actual innocent" has been executed bears the burden of proof.
and
This claim is frequently made by death penalty opponents--yet they never name this mythical "innocent person" who was, in fact, executed.
I would think anyone who claims the system is perfect would bare the burden of proving that the same government who can't be trusted to pick-up garbage without destroying my garbage cans and then spilling refuse all over the neighboring property should bare the burden of proof on this one. I would also recommend In Spite of Innocence which names names of innocent but executed, as well as a look at the executions of Carlos DeLuna, Ruben Cantu, Larry Griffin, Joseph O'Dell, David Spence, Leo Jones, Gary Graham &Cameron Willingham. I would also note that with 200+ DNA exonerations and 100+ death row exonerations or acquittals on retrial, including some who exhausted all legal appeals and/or were freed by journalists and not the legal process, the idea of the legal system's infallibility is quaint, but not realistic.
12.31.2007 6:27pm
byomtov (mail):
I still do not know of a single executed person who was factually innocent of the crime for which he was executed.

I think this is a bad argument, whether it comes from you or Scalia or anyone else.

It is not necessary to point to a specific case to show that it is reasonably likely an innocent person has been executed. It is only necessary to consider probabilities. Since 1976 there have been 1100 executions. If the system has a 1/1000 chance of letting an innocent person be executed, then the chance of getting through 1100 cases without error is 1/3, leaving a 2/3 chance of executing an innocent.

I do not see how anyone can believe the chance of error in the average case is as low as 1/1000.

As to the "risk of pain" relative to alternatives, that seems to me to make sense. Why impose an unnecessary risk of pain?
12.31.2007 6:29pm
Dave N (mail):
All writs,

As I previously wrote, I certainly am not claiming that NO factually innocent has ever been executed--but I certainly have not been persuaded of any such execution.

But I dispute the need for 100% accuracy (that is no actually innocents being executed) to sustain my support for capital punishment.
12.31.2007 6:37pm
Respondent:
To follow up on Byomtov, there was almost certainly an innocent man in Texas executed for "arson" based on later discredited scientific belief
12.31.2007 6:47pm
eyesay:
Ethel Rosenberg was executed June 19, 1953, for conspiracy to commit espionage. The main evidence to support the charge was testimony by her brother, David Greenglass, that she had typed notes containing nuclear secrets. David Greenglass admitted that he perjured himself and fingered his own sister in the hopes of protecting his own family. Without the testimony of David Greenglass, there isn't a prima facie case against Ethel Rosenberg.
12.31.2007 6:53pm
eyesay:
Willie McGee was executed in 1951 for the 1945 rape of Mrs. Troy Hawkins. McGee was a Negro and Hawkins a White. They had had a consensual sexual relationship for several years. When McGee broke off the relationship, Hawkins accused him of rape. This case drew huge international attention at the time, and there were demonstrations in Europe urging that McGee not be executed.

This was Mississippi, 1951. A dark time in our history, long before Brown v. Board of Education. Racist attitudes meant that a black man accused of raping a white woman would have had a hell of a time mounting a defense that the couple had already been in a consensual sexual relationship. . . .
12.31.2007 7:03pm
Mark M (mail):
Who cares if a murder could possibly feel some pain when they are finally (after 20+ years of groundless appeals) executed.

They should get off'd the same way that they killed their victims. With as much pain and suffering as their victim(s) went through.


Also -- any lawyer who gets a person off solely on a technicality is morally responsible for future acts that the criminal may commit. Strong consideration should be given to holding them legally responsible as well.


PS — Fry Mumia
12.31.2007 7:10pm
eyesay:
Sacco and Vanzetti were executed August 23, 1927, for armed robbery and murder. They were probably innocent. Regardless of actual guilt, they did not receive a fair trial.
12.31.2007 7:10pm
Simon Dodd (mail) (www):
allwrits:
"[Dave said he] think[s] that anyone suggesting that an 'actual innocent' has been executed bears the burden of proof." I would think anyone who claims the system is perfect would bare the burden of proving that the same government who can't be trusted to pick-up garbage without destroying my garbage cans and then spilling refuse all over the neighboring property should bare the burden of proof on this one.
I don't know where you live, but in Indiana, the munucipal government that can't be trusted to pick-up garbage without destroying my garbage cans and then spilling refuse all over the neighboring property doesn't have the authority to impose the death penalty, and the state government that does isn't the same government that deals with picking up trash. There's no generic "the government" in America. that's one of the beautiful things about the system.
12.31.2007 7:11pm
William Oliver (mail) (www):
What's the deal with this? How can the medical associations enforce this?"

Actually, for forensic pathologists, the opposite problem is more common -- the State does not want these people autopsied, even though they fit the criteria for forensic evaluation. They don't want the negative publicity from actually finding out the details of the deaths of these folk.

The only case in which autopsy is unethical is when it is used to further torture or other such abuses. In the Dirty War in Argentina, for instance, pathologists were used to autopsy torture victims who died before they were supposed to. Their results were then used to refine torture techniques. Because of that ethical violation, no Argentine pathologists over a certain age were allowed to evaluate the mass gravesites following the fall of the junta.
12.31.2007 7:25pm
William Oliver (mail) (www):
"I do not see how anyone can believe the chance of error in the average case is as low as 1/1000."

The other thing to remember is that after the execution is performed, there is usually no further investigation. Everything becomes moot. Thus, it unlikely that an innocent person would be found so, because only a rare event, such as a spontaneous confession, would show up.
12.31.2007 7:41pm
MDD:
Mark M:

Also -- any lawyer who gets a person off solely on a technicality is morally responsible for future acts that the criminal may commit. Strong consideration should be given to holding them legally responsible as well.

Those "technicalities" were put in place by the Framers, courts and legislatures for defendants' benefit. The lawyer you blame is simply the agent of society. What you're really saying is that anytime a person "gets off solely on a technicality," our Constitution, courts, and legislatures are responsible for that person's future acts--a somewhat less interesting/controversial statement.
12.31.2007 8:25pm
DesiErasmus (mail):

"Also -- any lawyer who gets a person off solely on a technicality is morally responsible for future acts that the criminal may commit. Strong consideration should be given to holding them legally responsible as well."

Perhaps legislatures should consider applying the penalty exacted against a falsely convicted defendant to the court officer responsible for prosecuting the case and any witnesses found to have committed perjury in the case; a kind of "Sarbanes-Oxley for prosecutors and witnesses". If high quality in judicial processes is the goal, this would be a useful step in that direction, and is at least as likely to deter prosecutorial misconduct and carelessness as the death penalty is to deter capital crimes.
12.31.2007 9:03pm
Gaius Obvious (mail):
No one is guaranteed a painless death -- except it seems, the condemned. Statistically, you will most likely die from a painful heart attack, a traffic accident, or a slip and fall. Very few people die in their sleep painlessly. So why are only condemned prisoners guaranteed a painless death? All the rest of us will probably suffer varying degrees of extreme pain upon death. Why the extra concern for the condemned?
12.31.2007 9:41pm
Gaius Obvious (mail):
Every year people die in plane crashes. Should we cease commercial air travel until we can guarantee with 100% certainty that no one will ever die in a plane crash?
12.31.2007 9:43pm
Orson Buggeigh:
Eyesay, the Rosenbergs have been well documented to be guilty as charged with espionage. And the Upton Sinclair papers contain interesting information that pretty well documents the guilt of Sacco and Vanzetti. Sinclair talked to the defense lawyer, who basically admitted that his clients were guilty, but Sinclair, good socialist that he was, didn't tell the public. None of these four were unjustly executed.

Personally, I think it would be a good thing for Congress to specifically enact legislation to put an end to the debate about whether or not the death penalty is cruel and unusual. The act should specifically state that execution by electrocution, lethal gas, firing squad, hanging and lethal injection are all specifically not cruel or unusual, but are, in fact, ordinary and accepted means of applying the death penalty. Maybe Congress should include beheading as an approved form of execution, should any state opt to adopt the guillotine.

Quite frankly, I really don't have a lot of sympathy for convicted killers. Their victims generally did not get a nice clean antiseptic, painless demise. So what if they get a little discomfort from the IV? Please. As noted above, brief and possibly intense pain is associated with many forms of death. If you can't do the time,or don't want to take the needle or the noose,then don't do the crime.

And yes, I agree - Fry Mumia.
12.31.2007 11:18pm
Bill Poser (mail) (www):
It may be that most people making this argument are using it as a proxy for an end to the death penalty, but that is not true of everyone. I am not opposed to the death penalty in principle but am opposed to lethal injection. There's no reason that executions can't be carried out by by a means that is quick, painless, and certain. Firing squads work quite nicely, as does a bullet in the back of the head as done in China. Hanging when done properly so that the neck is immediately broken is also a reasonable technique but requires somewhat more skill. Large doses of opiates or any of a number of other poisons will also do the job. What I find very peculiar is the regression in means of execution. 100 years ago hanging and the firing squad were used. The move to the gas chamber, electrocution, and then lethal injection, all of which are inferior to their predecessors, really makes little sense.
1.1.2008 1:20am
Daniel Chapman (mail):
It is not necessary to point to a specific case to show that it is reasonably likely an innocent person has been executed. It is only necessary to consider probabilities.

Heh. Apply this argument to voter fraud.
1.1.2008 1:38am
Ken Arromdee:
Perhaps legislatures should consider applying the penalty exacted against a falsely convicted defendant to the court officer responsible for prosecuting the case and any witnesses found to have committed perjury in the case; a kind of "Sarbanes-Oxley for prosecutors and witnesses".

The problem with this idea is that errors are inevitable in any system; doing this will end up blaming people who just happened to be involved in an inevitable error. You'll end up with nobody being willing to become a prosecutor, because of the certainly that in a lifetime of prosecutions one of them will turn out to be innocent. (Note that the death penalty really has nothing to do with this; nobody's going to become a prosecutor if it's just about certain it'll get them a 20 year prison sentence when the system makes a mistake and they end up being the fall guy.)
1.1.2008 2:01am
eyesay:
Mr. Buggeigh conflates "The Rosenbergs" as if they were one individual. Again, the only credible evidence against Ethel Rosenberg was the admittedly perjured testimony of her own brother, David Greenglass. Without that, there was no case against her.
1.1.2008 4:04am
byomtov (mail):
Heh. Apply this argument to voter fraud.

Glad to. There are surely instances of voter fraud. But maybe there's a touch of difference here.

Letting an ineligible voter cast a ballot, which may not even affect the election outcome, is substantially less serious than executing an innocent person, wouldn't you say?

Heh yourself.
1.1.2008 12:00pm
Daniel Chapman (mail):
Hello, straw man! I didn't equate the severity of the crimes, just the fact that your argument works equally well with both. I'm glad you agree with me, but the rest of your post is sort of non-responsive.
1.1.2008 12:54pm
Clayton E. Cramer (mail) (www):
The "cruel and unusual punishment" clause was never intended to prohibit execution, even by methods that were doubtless painful. Hanging was the common method before, during, and after the Bill of Rights. If properly done, I suppose that the pain was over quite quickly. But it was often done poorly, and people sometimes spent several minutes slowly dangling before they suffocated. (The ones who lost their heads from being too heavy were probably luckier.)

The objective was to prevent the intentional infliction of more pain than was necessary to execute the condemned--you know, drawing and quartering.

I am not a fan of the death penalty, but the notion that the infliction of pain is contrary to the Eighth Amendment is an attempt to project modern sensibilities onto 1791 thought.
1.1.2008 2:35pm
Elliot123 (mail):
"The move to the gas chamber, electrocution, and then lethal injection, all of which are inferior to their predecessors, really makes little sense."

These have little to do with the condemned, and everything to do with everyone else. People just don't want to be associated with the violence often associated with quick and painless death. An intact and composed corpse just doesn't have the impact of one with a bullet hole in the head, a neck wrenched out of shape, or a head a few feet removed from the rest of the body..

This is similar to the time and place used for executions. They are hidden away, and far from public scrutiny. Again, it protects the rest of us from facing what we are really doing.

So, we have laws and procedures that insulate us from what we are actually doing to people in executions and prisons. The closest we come to executions or imprisonment done in our names is a legal blog. It all helps people maintain a sense of who they are, regardless of whether it is an accurate sense. The system works quite well.
1.1.2008 3:47pm
Duffy Pratt (mail):
Dave N:

Thanks for citing the Scalia concurrence in Kansas v. Marsh. It's an interesting read, and it might fit well in a magazine or a journal. But I think it is a very bad piece of judging.

Basically, Scalia goes out of his way to issue a multi-page screed to debunk death penalty abolitionists in general. While doing this, he decides the facts of several cases that are not before the court, and are moot. His excuse for doing this is a sentence in the dissent, a sentence that had nothing to do with the outcome of the case, and was rightfully dismissed by the majority (which he joined) as being irrelevant.

Scalia used his position as an associate justice as a form of bully pulpit. His concurrence is much more political than judicial. To the extent that it is judicial, it reaches out to decide a host of things that were not before the court. This sort of judicial activism really bugs me.

That said, he might be right about much of what he says. I don't know because I haven't looked into the cases that he discusses, and I certainly do not take him at his word. And as I said, if the same thing had appeared in a magazine, joural, or blog, I would have found it very interesting.
1.1.2008 4:22pm
Duffy Pratt (mail):
Clayton Cramer:

The people who advocate abolishing the death penalty under the eighth amendment do not think that the constitution is a static reflection of what the framers thought. Thus, they might very well agree with you about 1791 interpretation, but disagree with you that that is the end of the discussion.

Given your views, I wonder how you feel about dismemberment as a punishment, from a constitutional perspective. I think even Scalia and Thomas might agree that its "cruel and unusual" to chop off hands, feet, etc... But take a look at the double jeopardy clause.
1.1.2008 4:29pm
byomtov (mail):
I'm glad you agree with me, but the rest of your post is sort of non-responsive.

So we agree. What is your point, exactly? To what was I "non-responsive?"
1.1.2008 5:15pm
byomtov (mail):
The objective was to prevent the intentional infliction of more pain than was necessary to execute the condemned--you know, drawing and quartering.

Isn't that exacty what we're talking about here - inflicting more pain than is necessary? Granted, because it is risk of pain rather than certainty it only affects some of the condemned prisoners. But if that risk can reasonably be reduced by using alternative methods then we are, in fact, intentionally inflicting more pain than necessary.
1.1.2008 7:05pm
theobromophile (www):
No one is guaranteed a painless death -- except it seems, the condemned. Statistically, you will most likely die from a painful heart attack, a traffic accident, or a slip and fall. Very few people die in their sleep painlessly. So why are only condemned prisoners guaranteed a painless death? All the rest of us will probably suffer varying degrees of extreme pain upon death. Why the extra concern for the condemned?


Quite simply: state action. We are permitted to do all sorts of things to ourselves, and subjected to all sorts of horrors via the normal progression of life, that the state may not inflict upon us.

As a conservative and a believer in negative rights, I fully believe that "state action" is a necessary component of any legitimate claim against the government (which, needless to say, renders many claims invalid). Nevertheless, this is one instance in which the state is subjected to a higher standard than that which we expect out of our lives, as it is directly influencing the situation. Philosophically, there is an obligation upon the government to act in a just manner when performing executions.
1.2.2008 1:05am
allwrits (mail):
Simon:

My garbage can reference is a generic reference of the inability of the gov't to ensure the type of guaranteed perfection and efficiency that a meaningful capital litigation scheme must entail. The current system needs to be scrapped and either we start over scratch or abandon it. When the Green River killer gets life (50+ victims purportedly), Cullen in PA/NJ gets life (50+ victims purportedly), Nichols (160+ victims) gets life, and yet some poor schmuck who is merely present during a felony murder gets death the system is broken. How can we look at a victim of Cullen and say he only killed 50 people so he doesn't get death and yet in response to why a felony-murderer got death say, it was worse.
1.2.2008 1:13am
Happyshooter:
VENONA showed pretty clearly she knew what was going on, and Khrushchev's bio gave both of them credit for the russian atom bomb.

He was a high ranking party member and general officer at the time of the events and later the soviet ruler at the time of their deaths, I think he would know.
1.2.2008 11:00am
Happyshooter:
Sorry: I meant to quote the 'Ethel Rosenberg is not guilty' statement
1.2.2008 11:05am
Elliot123 (mail):
"But if that risk can reasonably be reduced by using alternative methods then we are, in fact, intentionally inflicting more pain than necessary."

Wouldn't we limit far more pain by redesigning handcuffs so they don't cause pain when used improperly? The incidences of handcuff use are vastly greater than instances of execution. And we know handcuffs cause unnecessary pain because we have first and testimony that they do. We don't have to rely on probability; we can rely on fact.

Does the fact that an execution is involved in any way make the incidental pain more serious as a public policy and constitutional matter than the use of handcuffs? If the same amount of pain is caused by improper use of handcuffs and improper use of IV tubes, is there any substantive difference between the two?

Is it reasonable to observe that we readily accept the incidental pain of handcuffs, so that can be seen as evidence that as a nation, society, and civilization we condone such incidental pain? Why should the standard be any different for an execution?
1.2.2008 11:29am
Duffy Pratt (mail):
Elliot123:

We don't put handcuffs on people to punish them. The eighth amendment is irrelevant. For whatever reason, the S.Ct. has decided that it violates the eighth amendment to cause unnecessary pain in punishment. That's why the question of incidental pain caused during executions "matters", while its irrelevant to handcuffing.

Now ask yourself this: infliction of pain should not be part of the punishment, according to the Supreme Court. Ordinarilly, the only punishment is the fact of imprisonment. OTOH, pre-trial detainees are imprisoned but not punished. The eighth amendment doesn't apply to them. Can you resolve this? And then note, it often happens that the pre-trial detention, which was not punishment before trial, miraculously becomes punishment upon sentencing.
1.2.2008 1:30pm
Ralph Phelan (mail):
Daniel Chapman said:
"It is not necessary to point to a specific case to show that it is reasonably likely an innocent person has been executed. It is only necessary to consider probabilities."

Heh. Apply this argument to voter fraud.


Of course you have to look at error rates and cost/benefit ratios when you're looking to prevent voter fraud. Consider voter identification procedures: Walking in and saying "you don't know me, but I live here, swear to God" is generally considered too loose. Fingerprinting and retina scans connected to a central state database is generally considered too strict.
We're currently arguing about the marginal error rate reduction vs. effort burden increase of going from "poll worker who may or may not know you checks off your name on the registration roll" to "show your driver's license or liquor ID card."

I don't understand the "heh".
1.2.2008 2:30pm
Elliot123 (mail):
"We don't put handcuffs on people to punish them."

Of course we do. We use handcuffs in the normal course of almost any imprisonment. They are similar restraints to bars on a cell; both constrain and remove the convicted person's freedom. They are an integral part of the prison system.

We also throw folks in prisons where we know beatings, mutilation, and rape are everyday occurances, all incidental to punishment. No probability analysis needed; we have overwhelming first hand testimony. Perhap such things aren't intended in the punishment, but neither is the pain of an improperly fitted IV.

So, when we have a practice that is used in almost all imprisonment, it's a bit difficult parse it out of the punishment. But it is so very convenient for our collective psyches.

"Ordinarilly, the only punishment is the fact of imprisonment."

Which prison are you referencing? Ordinarily the physical damage and danger presented by the prison environment add orders of magnitude to the intended punishment, and it's all done under the state management, but, unlike the trial, kept out of public sight.

I suppose we could propose the IV itself is not the punishment, since nobody was sentenced to a needle stick and it's just the means usd to deliver the drug. Just like handcuffs are the means used to deliver the prisoner around the system when under sentence.

So, isn't there a lot more good to be done by going after those handcuffs rather than the IV? Unless, perhaps, there is some other motivation for selecting only the pain of IVs from among the overwhelming amount of other pain incidental to state punishment?
1.2.2008 3:48pm
Duffy Pratt (mail):
When I've seen prisoners moved, they have been shackled, not handcuffed. So that part of what you were saying was my misunderstanding. I'll grant that temporary shackling of prisoners probably causes some discomfort (though I don't know for sure that this is the case).

Why lethal injection and not shackling? Because people care more about the death penalty. If there was alot of abusive shackling going on in prisons, there would probably be some litigation over it. But it isn't up to a court to decide whether a prison practice is constitutional or not until somebody challenges it.

Would a challenge to shackling succeed? Probably not as a general matter, but it would depend on the case. It would depend on the purpose of the shackling, the amount of pain it caused, what the other alternatives were, how much the alternatives cost, etc... My guess is that the same sort of considerations will come up in this case.

Prisoners have complained in the past about many conditions they found unpleasant, and they have been pretty successful in these challenges -- overcrowding, medical treatment, kosher meals (and hallal), etc... If shackling were a big enough problem, I imagine it would come up. For example, if prisoners were being kept shackled to their beds for 47 of every 48 hours, I guarantee there would be some lawsuits over it. To a certain extent, the litigants decide what issues come to the courts, and there is alot more interest in executions than there is in temporary shackling.
1.2.2008 8:31pm
JOe:
Are the innocent ever executed? I am not saying that it never happened - but rarely would some one ever be a suspect and therefore accused of the crime if they had clean history. They so called innocents usually have some priors to justify police suspesion.
1.3.2008 11:55am