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Oral Argument in Baze v. Rees:
This morning the Supreme Court held oral argument in Baze v. Rees, the case on the constitutionality of the current method of lethal injection used to carry out executions. A few impressions of the argument:

  (1) On the whole I thought it went very well for the Respondents, the Commonwealth of Kentucky. The Justices were clearly frustrated with the lack of record supporting the Petitioners' side: they seemed to think that the issue of alternatives to the three-drug protocol hadn't really been raised below, and they thought the claims about the different risks associated with different protocols were speculative.

  (2) Roy Englert was excellent as counsel for Kentucky. He came off as the reasonable man, avoided any grand claims, conceded arguments he didn't need, and stuck to the record. It seemed to work: even Justice Stevens seemed persuaded that the record in this case showed that Kentucky was actually pretty careful and that there wasn't much of a risk of error.

  (3) The big question seemed to be what to do if record in this case cannot support an 8th Amendment claim but other records might be different. In this case, the state was pretty careful and there wasn't much of a record on alternatives. But what about other cases in which the state is less careful or a better records exists? Should the Court be more or less open to those other cases?

  A few Justices (Stevens and Souter, if I recall correctly) suggested remanding so a record could be developed on the viability of alternatives. There was then an interesting debate on how this would play out; Deputy SG Greg Garre pointed out that it was the Petitioner who failed to develop the record, and the Court doesn't normally force a relitigation of the record just so the Justices can address the implication of an issue with other cases in mind. Justice Scalia pointed out that remanding for the development of a factual record could mean a moratorium on the death penalty for years as the trial court heard evidence and the case winded its way back through the system; great for death penalty opponents, he suggested, but a problem otherwise. On the other hand, Justice Souter (I think) expressed the concern that they needed to address these questions once and for all: they couldn't do the constitutionality of protocols piecemeal.

  This exchange brought up the problem I blogged about in my earlier post on Baze: "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." I gather a few of the Justices wanted to do the next best thing; while they can't order the creation of a commission, they can remand to a trial court with instructions to hold hearings on the reliability of different protocols.

  (4) Justice Kennedy was generally quiet. He asked an early question of the Petitioners, to establish that their claim was about risk of error. But he was generally pretty quiet.

  (5) When I've been blogging about Baze, I have often found myself initially writing "three judge cocktail" instead of "three drug cocktail," presumably because federal courts of appeals decide cases with "three judge panels." I was interested to see that at least two Justices had the same instincts: both Justices Stevens and Alito referred to "three judge cocktails" during the argument.

  C-SPAN2 is currently finishing up a broadcast of the argument, and I believe it will have a permanently-linkable version posted later today.
Eric Muller (www):
If "three-judge cocktail" does not get picked up by David Lat, I'll eat my hat.
1.7.2008 12:14pm
GV_:
I also thought Englert did an excellent job. I was particularly impressed that he seemed willing to make (obvious) concessions without hemming and hawing, like most attorneys do. His voice was a little bit too combative at times, I thought, but he was otherwise quite impressive.

On the merits, I think Breyer got it right; the question isn't whether there is a substantial risk of causing harm with this three-drug protocol. But whether there is a significant risk that could be easily avoided. I'd remand for an evidentiary hearing so that the issue can be decided once and for all.

Finally, setting aside the legal issues for a moment, as a matter of policy, why shouldn't a more effective and efficient cocktail be used?
1.7.2008 12:15pm
WHOI Jacket:
What goes in a "Three Judge Cocktail". And why do I picture it burning like heck on the way down?
1.7.2008 12:16pm
DrGrishka (mail):
Same mistake on SCOTUSBlog


He [AMK] was among the Justices most intently focusing on how the three-judge protocol works in practice



1.7.2008 12:20pm
tarheel:
Still better than a three-cocktail judge, is it not?
1.7.2008 12:33pm
Anderson (mail):
Just decide the thing for Kentucky and give some clear rule for what a party has to prove in future. Sometimes it seems like the high Court does everything it can to make sure an issue gets litigated around for years.
1.7.2008 1:01pm
pjohnson (mail):

Justice Souter (I think) expressed the concern that they needed to address these questions once and for all: they couldn't do the constitutionality of protocols piecemeal.

Um, why not? And why not wait until the right case (i.e., with a fully-developed record) to do it "once and for all?"
1.7.2008 1:07pm
Crunchy Frog:
Depending on the judges in question, a three judge cocktail might necessitate a heck of a big cocktail glass/trough.
1.7.2008 1:07pm
CDU (mail) (www):
Still better than a three-cocktail judge, is it not?


Depends which three judges we're mixing.
1.7.2008 1:09pm
KeithK (mail):
Finally, setting aside the legal issues for a moment, as a matter of policy, why shouldn't a more effective and efficient cocktail be used?


If the current one does the job then why spend time and money coming up with a new one? From what I have read the current cocktail is very much effective in it's primary function as long as the person administering it can find a vein.
1.7.2008 1:13pm
Chris Howell (mail) (www):
I find the mix of drugs used to kill someone described as a "cocktail" a bit off-putting anyway. To me, the word cocktail brings to mind pleasant surroundings with good friends and good conversation.
1.7.2008 1:17pm
ejo:
is that the new frontier for extending death penalty appeals ever farther? do a poor job and make a crappy record in the trial forum where you are supposed to do it and then plead for a do over in the Supreme Court? This seems to be the Court deciding it isn't a court of law anymore.
1.7.2008 1:17pm
PatHMV (mail) (www):
Finally, setting aside the legal issues for a moment, as a matter of policy, why shouldn't a more effective and efficient cocktail be used?


Has it been really established that the current cocktail is not effective and efficient? Has it been demonstrated that there is some more effective and efficient cocktail? As far as I know, it has thus far proven 100% effective at causing the death of the condemned. Perhaps the problem with the record is not the fault of the defendant's attorneys, but the fact that there's not much evidence out there which could have been introduced. Beyond a few scattered anecdotal reports, I don't recall seeing any significant evidence that the initial injection fails to induce unconsciousness with any regularity.

Shouldn't some clerk or justice caught the lack of a well-developed record in the cert stage? Particularly when the justices decided to stay ALL executions in the country, pending this case? I thought that was an unusual, and an unwise, step when they did it, and this report seems to confirm my initial impression. Now they're in a jam because they basically announced that THIS case would be the big test case on lethal injection, and it's not suitable for that purpose. Oops.
1.7.2008 1:21pm
BruceM (mail) (www):
I think the court took this case solely to decide it in the state's favor to end these 8th amendment C&U punishment claims re: the 3 drug cocktail (to say nothing of 3 judge cocktails).

The fact that very few defendants have ever offered a less risky alternative (and they exist, opioid overdosage being the key example of a painfree way to die) is a big reason the state will win this litigation, and a big reason the SCOTUS will produce such a victory for the states.
1.7.2008 1:22pm
PatHMV (mail) (www):
The Court OUGHT to declare that what's going on in the condemned's mind in those last few minutes, after all the muscles in their body have been paralyzed, is essentially unknowable, and that matters of values and philosophy ought to be resolved by the political branches of government.
1.7.2008 1:26pm
OrinKerr:
I think the court took this case solely to decide it in the state's favor to end these 8th amendment C&U punishment claims re: the 3 drug cocktail.

I disagree. If a majority of the Justices had a clear view on the merits, they had plenty of recent chances to leave strong hints about it (Nelson, Hill, etc.). But they didn't. It may be that they end up agreeing with the state, but that's not why they granted cert.
1.7.2008 1:35pm
Terrivus:
Shouldn't some clerk or justice caught the lack of a well-developed record in the cert stage? Particularly when the justices decided to stay ALL executions in the country, pending this case?

I personally guarantee that there was probably a struggle during the Conference and pre-Conference stages over this very point. Clerks/Justices who wanted to hear the case because it represents an opportunity to strike down the protocol were willing to overlook the lack of a well-developed record, because, they figured, that can be sorted out later. Clerks/Justices who didn't want to hear the case almost certainly pointed to the lack of a well-developed record in arguing against cert.

This happens more frequently than it should: in their zeal to reach a particular issue, certain Justices will be more willing to overlook obvious vehicle problems, thinking that they can be circumvented later.

Sometimes, they can, and nobody's the wiser -- although sometimes the opinion ends up having to tap-dance around the issue, which will be challenged by the dissent (for example, the unqiue standing theory formulated in Mass v. EPA last year that allowed the Court to reach the substantive issue).

Other times, they can't, in which case you end up with a DIG or a remand for reasons that were probably brought up during the cert stage by those who didn't want to grant anyway.

So my prediction for this case is that the Justices will either (a) reach the substantive question, but have to concoct some unorthodox means for doing so (which will definitely draw a dissent about how underdeveloped the record is, or how much the majority is going beyond the record); or (b) remand without rendering a substantive opinion, thus not really doing anything with the case -- just as the non-granters recommended in the first place.
1.7.2008 1:44pm
theobromophile (www):

Finally, setting aside the legal issues for a moment, as a matter of policy, why shouldn't a more effective and efficient cocktail be used?

More effective and efficient compared to what? The 2008 technology we have now? In 2020, will we need to spend time and money finding a better mix of drugs? Death is not meant to be painless; the human body does not go gracefully.

Furthermore, it is the same mix of drugs we use on our (much beloved, often) pets.

I would say that the best solution is to improve the procudures for administering the drugs, such as by giving an anaesthetic, determining that the prisoner is fully numb to pain, followed by a drug to knock him out (and a determination that he is, in fact, in dream land), and then the lethal drug. That, however, requires medical professionals, and state medical boards often prohibit doctors from participating in executions.

Three-judge cocktail? One martini for three judges? Must be the liberal faction of the bench; the conservatives usually know how to drink. ;) Either that, or it's one of those "swing" vote parties.
1.7.2008 1:52pm
DLM (mail):

The Court OUGHT to declare that what's going on in the condemned's mind in those last few minutes, after all the muscles in their body have been paralyzed, is essentially unknowable, and that matters of values and philosophy ought to be resolved by the political branches of government.


Either that or rule as a matter of law that the possibility that a method of punishment used for many years is not suddenly unconstitutional because it just might inflict some unknowable level of pain in isolated instances. I can't see how the prohibition of "cruel and unusual" punishments somehow requires punishments to be 100% pain free in all cases. Nor does it seem to require states to choose the least painful form of punishment available.

In short, this case strikes me as a colossal waste of time, on par with the absurdity of the "Bong Hits 4 Jesus" case.
1.7.2008 1:53pm
GV_:
Has it been really established that the current cocktail is not effective and efficient? Has it been demonstrated that there is some more effective and efficient cocktail? As far as I know, it has thus far proven 100% effective at causing the death of the condemned.

It causes the death of the inmate; the only quesiton is how often it causes incredible pain before the inmate dies. Most people seem to agree that the one-drug cocktail works better. (I can't remember the name of it.)


The fact that very few defendants have ever offered a less risky alternative (and they exist, opioid overdosage being the key example of a painfree way to die) is a big reason the state will win this litigation, and a big reason the SCOTUS will produce such a victory for the states.

Er, perhaps you should listen to the oral argument; half of the argument was about this one-drug cocktail that the defendant says is a less risky alternative.
1.7.2008 1:56pm
Anderson (mail):
I confess to not having much sympathy for the plaintiffs here; hanging is botched pretty easily, but that does not make it cruel and unusual punishment across the board, when a properly-executed (ha) hanging is pretty humane. And I would be quite startled to find even the four liberal justices agreeing that hanging violates the Eighth Amendment, though I suppose Souter might write a lively dissenting opinion.
1.7.2008 2:00pm
Bill Dyer (mail) (www):
It's been quite a while since I read the cert petition, but I believe I recall the petitioner arguing that among the main reasons cert ought to be granted in Baze was that it would come to the Court with a much better-developed record (as an appeal from a section 1983 action, IIRC) than the typical direct or collateral attack on a death penalty conviction itself. But the thinness of the trial court record says less about the lawyers, witnesses, and judge who created it than about the inappropriateness of this topic for resolution in a judicial process.

If there were a reliable fifth conservative vote, this case would produce a clarification in constitutional law, the gist of which would be that the Constitution and, in particular, the Eighth Amendment, may not be used as a means to micro-manage penal policy. "The doubts about the humaneness of the three-drug cocktail mix raised by the petitioner," the majority opinion would say, "are entirely appropriate subjects to be brought to the attention of the various states' legislative and executive branches, but they do not implicate, and cannot properly be either accepted or acted upon, by this Court in interpreting the Constitution." I'm just not sure whether the mandate would state that the Kentucky Supreme Court's decision is affirmed or that cert is being dismissed as having been improvidently granted.

Finally: Prof. Kerr, you'd have us all believe that your malapropistic tendencies come from some association with the word "three" from the phrase "three-judge panel." Have you ruled out the possibility that the actual association from your subconscious that's driving your tongue or typing fingers is between the word "judge" and the words "drug" and/or "cocktail"?
1.7.2008 2:05pm
OrinKerr:
Terrivus,

That's possible, although I think it's also worth noting that, at least as far as I know, ther eare no cases that have or were planning to develop that extensive a record. The alternatives question hasn't been the focus of most of the litigation; as far as I recall, even Judge Fogel in California was only concerned with the 3-drug protocol, not alternatives.
1.7.2008 2:07pm
OrinKerr:
Prof. Kerr, you'd have us all believe that your malapropistic tendencies come from some association with the word "three" from the phrase "three-judge panel."Have you ruled out the possibility that the actual association from your subconscious that's driving your tongue or typing fingers is between the word "judge" and the words "drug" and/or "cocktail"?

That's a beery interesting argument. Ale have to think about it lager before I can say more.
1.7.2008 2:09pm
David M. Nieporent (www):
Just decide the thing for Kentucky and give some clear rule for what a party has to prove in future. Sometimes it seems like the high Court does everything it can to make sure an issue gets litigated around for years.
I'm telling you, I'm afraid we're going to get a Kennedy special, where the exact opposite happens: he votes on the 'conservative' side on this case, but refuses to rule out the possibility that sometime, a liberal argument somewhere would sway him, but he won't tell anybody what that might be.

We saw it in partisan gerrymandering a few years ago and in race-based school assignments last year.
1.7.2008 2:14pm
DLM (mail):

I'm afraid we're going to get a Kennedy special, where the exact opposite happens: he votes on the 'conservative' side on this case, but refuses to rule out the possibility that sometime, a liberal argument somewhere would sway him, but he won't tell anybody what that might be.


I'd prefer an O'Connor special, though of course she is no longer on the Court -- i.e., this is unconstitutional now, but in twenty years it won't be. See, it says that right here in the Constiution.

Or perhaps the Court will finally give states clear guidance through the long-awaited "Ouch" rule. If a prisoner says "ouch" as punishment is administered, then you have yourself an 8th Amendment violation.
1.7.2008 2:21pm
Dave N (mail):
My guess (though it is not what I hope) is that the Supreme Court will uphold the Kentucky Supreme Court and rule against Baze, but including language about how the decision is based on the undeveloped record and strongly hinting that it wants a well-developed record in some future case to resolve the ultimate issue.

I would prefer that the Supreme Court rule that the drug cocktail is constitutitional and so is the death penalty. period. That would end the argument. I just don't see that happening.
1.7.2008 3:07pm
MJG:
This is a messy case. I understand less why they granted cert since so little was said about the right standard. When they granted cert and I glanced at Kentucky's opinion and the materials, I thought that the Court would strike down the KY S. Ct. solely on the issue of the correct standard (i.e. not "substantial") and then remand the case back. Obviously Scalia doesn't like this because it creates open season for litigating this stuff, but enough qualifying language could stem things.

But now the standard seemed to draw little attention. All the Justices were attuned to the fact that you really can't strike this protocol down in a vacuum - even if it is cruel and unusual. The alternatives question is necessary unless you're just de facto striking down all death penalty procedures.

So I don't know what the Court will do. I agree with Orin that the Court will probably uphold these convictions (though I take issue with characterizing a remand to develop the record here on alternatives a Judicial attempt at creating a "commision" on execution alternatives - relax it's called fact-finding), but the question will be what the opinion looks like and who writes it. You could get a Kennedy special with a strike-down plus ambiguous "keeping hoping, liberals!" opinion. It could be an opinion that is 7-2 or 9-0 in result but with different opinions, some quite limited while a plurality might openly invite trial courts and prisoners to evaluate alternatives.

The last alternative which would be the most unfortunate, would be a 5-4 Roberts/Alito/Thomas/Scalia opinion that simply upholds this cocktail and basically forecloses any hope for future challenges against this procedure on the grounds that when applied correctly it is humane and it's certainly a lot better than the firing squad. Think of it like a McCleskey v. Kemp - a case that preemptively ends any such challenges for all time.
1.7.2008 4:15pm
ROBERT RUDZKI (mail):
Why should deranged killers enjoy a quiet, painless death, so unlike what most of them inflict on their terrified victims?

Let's start by bringing back some of the old Chinese punishments, "Death of 21 Cuts", "Death of 10,000 Cuts", "Live Burial", etc.

Our English cousins used "Hanging, Drawing and Quartering" for centuries, it was always a big crowd-pleaser...
1.7.2008 4:24pm
Anderson (mail):
I'm entertained by the AP's headline:

"Justices struggle with lethal injection."

My goodness, that must've been quite a scene.
1.7.2008 4:33pm
Oren:
bromophile - pets are killed with opiate overdoses.

I don't recall seeing any significant evidence that the initial injection fails to induce unconsciousness with any regularity.
This is because any evidence of such would be masked by the paralytic.
1.7.2008 4:34pm
Anderson (mail):
Our English cousins used "Hanging, Drawing and Quartering" for centuries, it was always a big crowd-pleaser...

Mr. Rudzki provides an important insight into why the Eighth Amendment was deemed necessary in the first place.
1.7.2008 4:34pm
Bill Dyer (mail) (www):
I misspoke earlier and wouldn't want anyone here to be misled by my mistake. This wasn't an appeal from a section 1983 action. Rather, it was an appeal (or, more precisely, a certiorari application) from a lawsuit brought in the Kentucky state courts under that state's declaratory judgment statute.

Even though filed in the state-court system, however, the source of the rights as to which the plaintiffs sought declaratory relief was indeed the Eighth Amendment to the U.S. Constitution.

There is no possibility, however, that the SCOTUS will, or even could, void the convictions of the two men (Baze and Bowling). This is neither a direct nor a collateral attack on those convictions, but rather, has solely to do with the manner in which their sentences are to be carried out.
1.7.2008 4:42pm
Mike M. (mail):
It always seemed to me that Kentucky could simply inform the condemned that while the official method of execution is this three-drug protocol, any reasonable alternative method of execution would be considered as a last request.

After all, the purpose is not to administer a certain set of drugs, it is to make the condemned convict dead.
1.7.2008 5:02pm
Anderson (mail):
any reasonable alternative method of execution would be considered as a last request.

Now *there* is a reality TV show waiting to be made.
1.7.2008 5:13pm
PersonFromPorlock:
ROBERT RUDZKI:

Our English cousins used "Hanging, Drawing and Quartering" for centuries, it was always a big crowd-pleaser...

Indeed. Four crowds, even.
1.7.2008 5:23pm
allwrits (mail):
pjohnson
And why not wait until the right case (i.e., with a fully-developed record) to do it "once and for all?"

The problem is to develop the perfect factual record you are going to have to put on hold all executions nationwide until such a record is developed which is why the Court has gone with a procedurally clean case (indeed, arguably the cleanest one that has come to it yet) that has a fairly well developed record. The problem is the record was developed two to three years ago before we learned as much as we currently do about the problems with LI.

What I found fascinating was that Kentucky conceded some of their best procedural issues to rely instead on the "factual development" related arguments.

If youwant to stay all executions by LI pending resolution, say so.
1.7.2008 6:38pm
Elliot123 (mail):
It would appear tht these arguments can be applied to any drug cocktail that is developed. One drug? Four drugs? Pick any combination and claim it has flaws.
1.7.2008 9:34pm
Bay Shore:
I like this line:


Justice Scalia pointed out that remanding for the development of a factual record could mean a moratorium on the death penalty for years as the trial court heard evidence and the case winded its way back through the system; great for death penalty opponents, he suggested, but a problem otherwise.



Inability to kill promplty, a "problem". Wow!

This activist of Opus Dei sect (Catholic) works hard to get to Catholic heaven.

Here is another example of Scalia's Catholic moral values:
link
1.7.2008 10:03pm
theobromophile (www):
Oren,

When the vet put my lab to sleep two years ago, he said that there would be a painkiller used and a drug to stop her heart (potassium overdose, I imagine). It took about sixty seconds for her to die, during which time she looked at us and twitched a bit towards the end. (As a totally random aside, watching a pet die really, really sucks.) I read somewhere, but cannot find the cite for, the fact that the drugs are the same. (The best I can find is here.)


Has it been really established that the current cocktail is not effective and efficient? Has it been demonstrated that there is some more effective and efficient cocktail? As far as I know, it has thus far proven 100% effective at causing the death of the condemned.


PatHMV,

Well, last time I checked, drawing and quartering is 100% effective at producing the death of the condemned, but that is considered cruel and unusual punishment. :)

The touchstone for C&U is not certainty of death. (I'm pretty sure that the Supreme Court will refuse to elucidate any sort of standard by which we may judge the Constitutionality of different methods of capital punishment, but, IMHO, a comparison to 1791 would be a good place to start. We both agree, I'm sure, that modern lethal injection, even gone wrong, is better than a firing squad gone wrong or a hanging gone wrong.)
1.7.2008 10:30pm
Pinto:
Worth noting, as people talk about pets, that the oral arguments touched on the fact that this method (three drugs) was disallowed for pet euthanasia first by Kentucky's veterinary professional organization and then by the legislature.

Another, more central point is that the second drug doesn't have anything to do with actually killing the convict. All it does is make the convict look more at peace--mostly a benefit for witnesses. As this second drug--the cosmetic drug, essentially--is the one that introduces what risk of error exists into the process, there is a bit more to the claim than some of the above comments indicate. On listening, I think this fact--that the second drug (and third) don't do the actual work of execution--was the only one that worked at all against the state (particularly with Souter, IIRC).

I missed the very beginning--did Thomas talk at all?
1.7.2008 11:49pm
Oren:
It always seemed to me that Kentucky could simply inform the condemned that while the official method of execution is this three-drug protocol, any reasonable alternative method of execution would be considered as a last request.
Seems acceptable. I can't possibly imagine why anyone wouldn't chose heroin overdose but, to each his own.
1.8.2008 12:02am
Devilbunny (mail):
Opioid overdoses are undesirable from a state perspective because people tend to take quite a while to die from them, because a reasonable segment of the population is hideously nauseated by them, and because they aren't actually all that good at killing you by themselves - even huge doses of opioids do not necessarily induce unconsciousness. (Most junkies are not using just one drug at a time.)

As for the agent used to induce unconsciousness, thiopental wouldn't be my drug of choice - I'd choose phenobarbital - but it's hard to imagine that it doesn't feel pretty good, insofar as it feels any particular way before unconsciousness. Seconal and Quaalude were barbiturates, and they certainly seemed to have dedicated followers.

Anyway, the paralytics absolutely confirm that death will occur, because people don't survive drugs that paralyze them for six to eight hours (which, at a minimum, is what you would get with the doses of pancuronium I've seen mentioned in some articles) without artificial respiration. It might be cruel, but it's not totally irrelevant to the action.

There are ways to provide some level of insight into whether someone is unconscious or not - specialized monitors made for the anesthesia industry that use a proprietary scheme to generate "level of consciousness" information from muscle and EEG activity. The scale is 0 to 100, easily understood by the layman. The devices are not at all difficult to attach; the outside of the package shows where they should be placed.

Incidentally, there's a very simple method that could be used to easily and reliably induce painless death. Bring back the old gas chambers, but instead of cyanide gas, just fill them with 100% nitrogen. No IV's to blow. Wait until the heart stops, then just open the chamber up - there's no risk to anyone else from what's inside. Of course, executions will frequently take about half an hour if done this way (for the heart to stop), but consciousness in the absence of oxygen just doesn't happen. That burning sensation when you hold your breath comes from building levels of carbon dioxide, not falling levels of oxygen. (Ever get light-headed when you took 3 consecutive breaths out of a helium-filled balloon? Imagine continuing down that line.)

Incidentally, since hanging has been mentioned, it's worth noting that death by hanging appears instant only because the person is paralyzed by having their neck snapped, and that they die only when they run out of oxygen. In a properly conducted hanging, the noose should be sufficiently tight (after the drop) to prevent blood flow into the head, providing unconsciousness within twenty or thirty seconds, but there's no guarantee.
1.8.2008 1:54am
Bill Dyer (mail) (www):
Bay Shore () wrote, mockingly, of one of Justice Scalia's comments: "Inability to kill promplty, a 'problem.' Wow!"

With due respect, that shows an eagerness to impute bloodthirstiness to Justice Scalia, and an incomplete understanding of the rationale for the death penalty. If the actual administration of the death penalty is mostly theoretical — routinely or even universally marked by decades-long delays — then it loses its deterrent value, however much of little deterrent one thinks it may have.

Indeed, as a supporter of the death penalty, I nonetheless believe that it becomes arbitrary and random when administered so belatedly and inconsistently as it is in, say, California. In my home state of Texas, however, any resident of or even visitor to the state probably knows that we take capital punishment seriously; it's not theoretical at all; and although it's never speedily administered, there's a very high degree of probability that it will be administered within a matter of only a few years after conviction. If you are convicted of a capital crime in Texas, the odds are that you won't die of natural causes, whereas precisely the opposite is true in California.

Just retribution is another principle served by the death penalty, and with respect to it too, there is truth to the maxim that "Justice delayed is justice denied."

Those who pretend that there's no downside to further, even indefinite, delays in the administration of capital punishment aren't being honest in acknowledging the other side's position.
1.8.2008 7:27am
Bill Dyer (mail) (www):
Yikes. Should have written "much or little one thinks" just above. Also, the cross-reference is Bay Shore (1.7.2008 10:03pm above).
1.8.2008 7:29am
iowan (mail):
This my sound of base but why does court get to define cruel and unusual? This is ounce again a definition of a term. I feel that after the legislative branch has approved it and the executive branch has approved it why does a law degree bring special knowledge and experience to the table that trunps the findings of the two other branches
1.8.2008 8:56am
Anderson (mail):
Iowan, you didn't participate in any of those "caucuses," did you?
1.8.2008 9:15am
rarango (mail):
The cynic in me believes that no matter what method of execution is chosen, it will ALWAYS be challenged as cruel and unusual; if physical pain could be positively eliminated, then the opponents of death penalties would probably argue from the case in terms of physchological harm. It seems to me the fundamental issue is the existence of a death penalty. Lets all admit that, argue the merits--and good arguments exist on both sides--and resolve it in the political sphere. These kinds of procedings bring the court into disrepute in my opinion.
1.8.2008 10:28am
Colin (mail):
The cynic in me believes that no matter what method of execution is chosen, it will ALWAYS be challenged as cruel and unusual;

Do you have to be cynical to expect that convicts will challenge their death row convictions with every means available? This seems like an obvious and inconsequential observation.

Yes, it's true that many people would argue that all methods of execution are cruel and unusual, especially if the set of methods is limited to those that are practical and realistically available to the state. But that's not quite the same thing as the argument that the death penalty itself is bad policy, or unethical, or an improper use of state powers. The arguments follow different paths, including in the Constitution. Because we have the Eighth Amendment, people will continue to measure all methods of execution against the "cruel and unusual" standard. That's not a bad thing.
1.8.2008 11:27am
PatHMV (mail) (www):
Chocolate-lover... the question is where, on the spectrum between completely painless execution and drawing and quartering (or what happened to William Wallace, according to the film), does the three-drug-cocktail fall?

1791 methods are certainly the place to start, but I've long felt that of all the clauses of the constitution, it was the "cruel and unusual" section which may be most subject to interpretation in light of modern feelings and, perhaps more importantly, modern technology.

We certainly recognize that the Constitution can and should be interpreted in light of changes in technology. Warrantless "searches" of your phone calls (via wiretapping), for example, are generally prohibited by the 4th Amendment ever though they are not, technically speaking, "persons, places, things, or effects."

It is possible that the firing squad or the hangman's noose was the least painful method of execution then technically feasible, but that they would have promptly used less painful methods, had they been available at the time. It is entirely possible that they believed that "cruel and unusual" meant, in part, "with the least physical pain possible" to them.
1.8.2008 2:01pm
iowan (mail):
yes I did caucus, Freds still my pick. But, back to my question If the people dont find leathal injection qualifies as cruel and unsusual why would judges have some deep and secret knowledge that allows the judiciary to overrule the people?
1.8.2008 2:40pm
Colin (mail):
why would judges have some deep and secret knowledge that allows the judiciary to overrule the people?

It's the judiciary's task to determine whether the practice is constitutional. If the legislature's approval of a policy is also the final determination that the policy is constitutional, then no legislatural act would ever be unconstitutional.
1.8.2008 4:01pm
_Jon (mail) (www):
The "once and for all" comment is interesting from another angle. Could one extend this judge's desire for closure on this subject lead to the judge wanting to settle other issues before the Court in a 'larger way'? For example, would this judge push to hear (and decide upon) broader cases than the USSC has addressed in the past? That would be interesting.
1.8.2008 5:08pm
iowan (mail):
Colin, I argue that it is up to the people to decide what is cruel. The people have spoken through their elected representative that leathal injection is not cruel. To seek redress they should petition the legislative branch not the judicial branch. It is not the role of the judiciary to decide what the social norms of day are. Again the people decide what is normal, because there is nothing in the constitution that adresses 'normal'. It is just as logical to say the death penalty is cruel and unusual. Except the constitution specifficaly says that the govt can take life with due proccess.
1.8.2008 5:21pm
theobromophile (www):
Louisianan,

Thanks for making me google "William Wallace" to find what frickin film had him as a character. :p


1791 methods are certainly the place to start, but I've long felt that of all the clauses of the constitution, it was the "cruel and unusual" section which may be most subject to interpretation in light of modern feelings and, perhaps more importantly, modern technology.

So now you're going all living, breathing (clearly not lethal-injected) Constitution on us. ;)

To be serious: why should this be a judicial issue, in light of technological developments and modern sensibilities? Is there a legislative failing (real or potential) that would render methods cruel and unusual? Is it sufficient that the legislative process could fail to make this a judicial issue, absent even a showing of a definite failing of that process?

The question of which method of execution causes the least amount of harm seems to be a question that requires far too much fact-finding to be suitable for the judiciary. Now, obviously, some are obvious: drawing and quartering is less humane than hanging. When you discuss, however, time until death, pain until death, shock, consciousness, ease of administration, and the like, you are wading into the waters of a legislative decision. What if the Court and the legislature come to different conclusions about which method is the least cruel? When will the advent of new methods of execution render the previous one unconstitutional?
1.8.2008 7:52pm
PatHMV (mail) (www):
All for the benefit of your cultural education, chocolate-girl...

On the serious note, are you suggesting that the "cruel and unusual" prohibition is not subject to judicial review? There surely has to be some judicially-enforceable line, as the judiciary is the branch actually imposing the penalty. If a penalty is "cruel and unusual," then they cannot lawfully impose it (see Marbury v. Madison). What is the standard the Court should use in determining whether any particular penalty is "cruel and unusual"? It's not a matter of any defect in the legislative process, negligence by them in researching the issue or whatever. Either a penalty is "cruel and unusual" or it's not. The Court must make a determination, and therefore must have some standard by which to make the decision.
1.9.2008 1:14am
theobromophile (www):
I don't watch movies without chocolate chip cookies. :)

Well, yes, the Court should use some objective standard. I'm not suggesting that we replace jurisprudence with a massive Wheel of Fortune. "Today, you get the firing squad - we think it ought to be over in a jiffy, so just line up right over there, mate."

I just don't think it should be a living, breathing, tail-wagging Constitution standard. I suppose that I could have saved quite a bit of typing by simply stating that the Court ought to defer to legislative fact-finding about the effects of different methods of lethal injection....
1.9.2008 2:31am
iowan (mail):
no one one has outlined what legal and constitutional guidlines the court is going to use. In absence of such back ground what standing does the court have to make a decission? remember the court must follow the peoples lead, not the other way around.
1.9.2008 8:24am
PatHMV (mail) (www):
Those can be arranged... :)

But what is the objective standard? I mean, what if the legislative findings of fact come back stating that "cruel and unusual" must be ascertained in accordance with our revulsion towards the crime, and thus the legislature finds that drawing and quartering while still alive is not cruel and unusual punishment for a child molester?

A pure textualist approach doesn't help us today, I don't think. The word "cruel" and the word "unusual" have not changed their general meaning over the past 200 years. What we think of as being cruel or unusual has changed, but the bare meaning of the words has not. That's why, in this one area, I think the Constitution may have anticipated some change over time.

An originalist perspective would say, I suppose, that anything which was not considered "cruel and unusual" (i.e., anything which was a proscribed punishment on the books and in practice in 1791) could not be considered "cruel and unusual" today, for purposes of the 8th Amendment. But we must be cognizant of the broad ramifications of such a conclusion. Living conditions in prisons at that time were extraordinarily spartan (at best), in large part because society had so many fewer resources. It would be interesting to see spending on prisons as a percentage of GDP over time, dating back that far. I think today, given the much higher standards of living for ordinary citizens, that it would be cruel and unusual to imprison somebody in a dirt-floored prison cell with a hole in the ground for a latrine, throughout the winter and summer both. "Unusual" by its very nature is a comparative term, and the "usual" lifestyle of free people has changed significantly since the 18th century.
1.9.2008 6:35pm
theobromophile (www):
Perhaps we are talking past each other. I meant the legislative findings of fact that are related to the ultimate effects of the methods of execution. If, for example, the legislature finds that lethal injection works 99% of the time (in terms of prisoners not experiencing pain); further, that in the other 1% of cases, the pain lasts for approximately 30 seconds; the data are more complete than with other methods; and, as such, it is the best available method, then I don't think the Court ought to allow relitigation of those issues. There are always issues of statistical significance of studies, completeness of data, types of experiments run, possible flaws, etc., and I'm not sure that it is the place of the Court to go through that process again. The courtroom is not the place to relegislate in a manner that one finds to be more appealing.

Flipping your question around: what if our standards of living (or execution, for that matter) degrade beyond what they were in 1791? Do we then tell prisoners, "tough luck, the floor of your rights has dropped?"

To answer your question: there was no mass tritenogenesis of man in 1791. The Framers were well aware of improved living conditions and were in the middle of an age of scientific progress. Surely, they were well aware that society had been advancing, and would (hopefully) continue to advance upon its current trajectory. The language in the Constitution mirrors this - we talk about deprivations of life, liberty, and property, and cruel and <i>unusual </i>punishment. You may imprison a man - or even take his life - but you may not humiliate him, torture him, or treat him in a manner that is out of line with how people usually live. The deprivations are limited.

:p ppppttttt
1.9.2008 7:34pm
theobromophile (www):

and thus the legislature finds that drawing and quartering while still alive is not cruel and unusual punishment for a child molester?

Wait, is there something wrong with that?
1.9.2008 7:58pm
PatHMV (mail) (www):
or treat him in a manner that is out of line with how people usually live.


Which was precisely my point. ;-) "Cruel and unusual" necessarily references current conditions of "usual, and thus what is and is not allowed as punishment may change over time.

I would certainly agree that the Court ought to defer to legislative conclusions about appropriate practices, even if they don't make any specific findings of fact. I don't think the Constitutional limits are quantifiable as X level of pain for Y number of seconds, or what have you. The safest bet for the Court, I think, is to say that there is a line out there, they don't know precisely what it is at this point, but the current method of execution is safely on the constitutional side of it.

And in answer to your second question... nope. But nobody's likely to appoint me to the Supreme Court anytime soon, alas.
1.9.2008 10:56pm
theobromophile (www):
But that's not a living, breathing, tail-wagging, slobbering Constitution issue, then. It would be more like the Census provisions, or the apportionment of Congressmen provisions - those which are designed to be flexible *within defined limits, and by a specific manner,* not those that take on new shape and meaning.

Supreme Court of Louisiana, perhaps. :)
1.9.2008 11:25pm
PatHMV (mail) (www):
Well, maybe it's not a completely Sadie-esque Constitutional issue, but it still leaves the central question unresolved:

What standard(s) do you use to determine if a given punishment is "cruel and unusual" for purposes of the 8th Amendment? Is it a fairly subjective "shock the conscience" test, or is it something equally malleable like Justice Kennedy's Roper decision, where you tally up different states' practices? Or is it some combination of the two, or is it something completely different? What are the "defined limits"?

And the S.Ct. of La. is elected, not appointed, but thanks for the encouragement! :)
1.10.2008 1:54pm
theobromophile (www):
Well, if someone were to put me in charge, the "cruel" issue would be straight-up 1791, and the "unusual" prong would be in relation to today. (Shrug.) Seems to be the natural reading of it all.


or is it something equally malleable like Justice Kennedy's Roper decision

Do you blaspheme at ladies on a regular basis?
1.12.2008 7:45pm
theobromophile (www):

The safest bet for the Court, I think, is to say that there is a line out there, they don't know precisely what it is at this point, but the current method of execution is safely on the constitutional side of it.

Well, using 1791 as an absolute floor (lower than which we may not go), you can get any set of standards of cruelty: anything that is equivalent or an improvement upon those deaths is acceptable; the Supreme Court could ask that legislators make a protocol that is reasonably designed to not inflict cruelty and/or be done with a minimum of pain, considering all factors; or the Supreme Court could make its own standards. IMHO, those earlier in the list are more defensible based upon a reading of the Eighth Amendment and the general theory of separation of powers....
1.12.2008 7:48pm