Struck by Lightning
June 29, 2015 5:29 PM Subscribe
This morning, The New Yorker's Rachel Aviv exposed the case of Louisiana death row inmate Rodricus Crawford, a possibly innocent 23 year old man prosecuted by notorious Caddo Parish assistant district attorney Dale Cox; at the same time, the Supreme Court refused to halt lethal injections in Oklahoma (or, as some had hoped, nationwide) and recently exonerated and freed former death row inmate Glenn Ford lost his life to lung cancer.
Aviv's excellent reporting details various explanations for why Crawford is on death row: because he woke up to find his infant son cold and not breathing in bed beside him, which a later medical examiner from out of state would insist was the result of pneumonia; because despite his and his family members calling 911 multiple times over the course of an hour, medial assistance was dismissive of the problem and late to arrive; because he lived in Caddo Parish, "home to the last capital of the Confederacy," a place that "in the decades after the Civil War . . . had more lynchings than all but one county in the South" and where "juries . . . now sentence more people to death per capita than juries in any other county in America," yet have never sentenced a white person to die; and because he came up against Cox, a "Darth Vader" like figure who emphasized at trial the fact that Crawford lacked a job and smoked marijuana, told the jury "that Jesus Christ commanded the death penalty for those who killed a child," and said to Crawford “ 'It would be better if you were never born. You shall have a millstone cast around your neck, and you will be thrown into the sea.’ ”
While many Americans were reading Crawford's story over their morning coffee, the Supreme Court, in a 5-4 decision, refused to strike down Oklahoma's lethal injection protocol, holding that the plaintiffs failed to show a likelihood of success on the merits of their argument: that the protocol (a new formulation in use because of anti-death penalty advocates' success at lobbying the more effective drugs' European manufacturers) was cruel and unusual punishment under the Eighth Amendment due to its ineffectiveness. In an unusual move, the majority opinion, a concurrence, and two dissents were all read from the bench --
Cox's response to Ford's case? "I think we need to kill more people."
The title of this post comes from Furman v. Georgia, the 1972 Supreme Court case that (temporarily) halted the death penalty in the United States.
Aviv's excellent reporting details various explanations for why Crawford is on death row: because he woke up to find his infant son cold and not breathing in bed beside him, which a later medical examiner from out of state would insist was the result of pneumonia; because despite his and his family members calling 911 multiple times over the course of an hour, medial assistance was dismissive of the problem and late to arrive; because he lived in Caddo Parish, "home to the last capital of the Confederacy," a place that "in the decades after the Civil War . . . had more lynchings than all but one county in the South" and where "juries . . . now sentence more people to death per capita than juries in any other county in America," yet have never sentenced a white person to die; and because he came up against Cox, a "Darth Vader" like figure who emphasized at trial the fact that Crawford lacked a job and smoked marijuana, told the jury "that Jesus Christ commanded the death penalty for those who killed a child," and said to Crawford “ 'It would be better if you were never born. You shall have a millstone cast around your neck, and you will be thrown into the sea.’ ”
While many Americans were reading Crawford's story over their morning coffee, the Supreme Court, in a 5-4 decision, refused to strike down Oklahoma's lethal injection protocol, holding that the plaintiffs failed to show a likelihood of success on the merits of their argument: that the protocol (a new formulation in use because of anti-death penalty advocates' success at lobbying the more effective drugs' European manufacturers) was cruel and unusual punishment under the Eighth Amendment due to its ineffectiveness. In an unusual move, the majority opinion, a concurrence, and two dissents were all read from the bench --
Alito's majority opinion found the risk of severe pain to prisoners "scientifically unsupported and implausible" and emphasized that "the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain," a requirement for an Eighth Amendment method-of-execution claim.In a sad twist of fate, Glenn Ford died this morning, free and surrounded by loved ones. The Louisiana assistant district attorney who continues to insist Ford received adequate trial representation and fought to keep Ford from receiving restitution for the years he spent in jail? Dale Cox.
Scalia, concurring: "Welcome to Groundhog Day. . . . Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible. The reason is obvious: It is impossible to hold unconstitutional that which the Constitution explicitly contemplates."
Sotomayor, in dissent: The Court "leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake."
Breyer, in dissent: "But rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution. . . . I shall describe each of these considerations, emphasizing changes that have occurred during the past four decades. For it is those changes, taken together with my own 20 years of experience on this Court, that lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited 'cruel and unusual punishmen[t].'" Breyer identified the cases of Cameron Todd Willingham [previously] and Glenn Ford [previously] as influencing his view.
Cox's response to Ford's case? "I think we need to kill more people."
The title of this post comes from Furman v. Georgia, the 1972 Supreme Court case that (temporarily) halted the death penalty in the United States.
What's wrong with a guillotine? It's fast, it's certain, and it requires little oversight or maintenance.
Anecdotal evidence from both the French Revolution and other situations suggests a person remains conscious and aware up to 30 seconds after having their head cut off. So, uh, I don't know if that's better.
posted by Anonymous at 5:45 PM on June 29, 2015
Anecdotal evidence from both the French Revolution and other situations suggests a person remains conscious and aware up to 30 seconds after having their head cut off. So, uh, I don't know if that's better.
posted by Anonymous at 5:45 PM on June 29, 2015
What's wrong with a guillotine? It's fast, it's certain, and it requires little oversight or maintenance. I can only conclude that the chemical proponents like seeing people suffer unimaginable agony as they die, which may well be the case.
It's not about being humane or inhumane; it's about being able to kill people again and again and walking away with a clean conscience and no traumatic images haunting your every waking moment. It becomes more of a medical procedure than a murder.
(Same reason people take their sick dogs to be "put to sleep" instead of just Old Yellering them at home.)
posted by Sys Rq at 5:46 PM on June 29, 2015 [14 favorites]
It's not about being humane or inhumane; it's about being able to kill people again and again and walking away with a clean conscience and no traumatic images haunting your every waking moment. It becomes more of a medical procedure than a murder.
(Same reason people take their sick dogs to be "put to sleep" instead of just Old Yellering them at home.)
posted by Sys Rq at 5:46 PM on June 29, 2015 [14 favorites]
Dale Cox thinks of vengeance as one of the aims of justice. '
Thats such a medieval thought process that it chilled me.
I wonder if he will be ok with people exacting vengeance on him if it turns out that he has sent innocent people to death.
posted by TheLittlePrince at 6:00 PM on June 29, 2015 [18 favorites]
Thats such a medieval thought process that it chilled me.
I wonder if he will be ok with people exacting vengeance on him if it turns out that he has sent innocent people to death.
posted by TheLittlePrince at 6:00 PM on June 29, 2015 [18 favorites]
"it's about being able to kill people again and again and walking away with a clean conscience and no traumatic images haunting your every waking moment."
It should be noted that Sanson, chief executioner under Louis and the 1st republic, had no problem with sleeping after killing 3000 people. He even founded a dynasty of executioners.
posted by clavdivs at 6:05 PM on June 29, 2015 [5 favorites]
It should be noted that Sanson, chief executioner under Louis and the 1st republic, had no problem with sleeping after killing 3000 people. He even founded a dynasty of executioners.
posted by clavdivs at 6:05 PM on June 29, 2015 [5 favorites]
Faint of Butt: "why are people messing around with these grotesque chemical concoctions? What's wrong with a guillotine?"
It's gross. Capital Punishment in the US is about the clean and clear administration of death by a state that isn't culpable for it. Hanging and firing squads are also pretty quick and certain, but they make people uncomfortable because they're too graphic. The electric chair was more impersonal, and lethal injection is more impersonal yet; they seem like medical procedures rather than violence.
(To qualify under the 8th amendment, a hangman's noose had to have more than 5 loops -- less than that didn't have enough weight to break the neck -- but no more than 13, as more than 13 caused so much friction with the loops on the rope that the neck didn't break. The goal was to have the neck break when the prisoner dropped.)
posted by Eyebrows McGee at 6:06 PM on June 29, 2015 [3 favorites]
It's gross. Capital Punishment in the US is about the clean and clear administration of death by a state that isn't culpable for it. Hanging and firing squads are also pretty quick and certain, but they make people uncomfortable because they're too graphic. The electric chair was more impersonal, and lethal injection is more impersonal yet; they seem like medical procedures rather than violence.
(To qualify under the 8th amendment, a hangman's noose had to have more than 5 loops -- less than that didn't have enough weight to break the neck -- but no more than 13, as more than 13 caused so much friction with the loops on the rope that the neck didn't break. The goal was to have the neck break when the prisoner dropped.)
posted by Eyebrows McGee at 6:06 PM on June 29, 2015 [3 favorites]
There are, in fact, many ways of killing a person pretty painlessly and, more or less, instantaneously. Decapitation is such a method: the thing about staying alive afterwards is a myth. Executioners don't like it, however, as it's gory and distressing to watch. Hanging is another method: when done properly it's ... well it's probably excruciatingly painful, but it's over in less than a second. Hanging, however, is touchy and difficult to get right. Get it wrong and it can be painful, prolonged and/or messy.
Setting these traditional methods aside, however, there are several well-known methods for killing mammals that are painless and fast. It's probably unethical, however, to list them in a forum like this. It's not a good kind of information to throw in people's faces.
Speaking generally, though, animals are euthanised using drugs that kill them in seconds with no visible distress. There's a particular method used (primarily I believe) for slaughtering turkeys by essentially replacing the oxygen they breathe with a gas that feels like breathable air but isn't. It's very simple, very cheap, and it's used because even though the birds take several seconds to die, they are so calm that they don't struggle. There's another technique often used by assassins to fake a heart attack. It requires specialised equipment, but it's absolutely instantaneous, leaves no visible mark, and causes so little distress that the victim cannot be seen to have struggled or suffered any pain.
All these methods are very well known, widely available, and I have no doubt that the barbarians who administer these horrible drug cocktails know of them. So why aren't they used? Because they want to cause pain and distress. They are using the pretence of an execution to torture people to death.
[disclaimer: I too oppose the death penalty for all the usual reasons]
posted by Dreadnought at 6:07 PM on June 29, 2015 [19 favorites]
Setting these traditional methods aside, however, there are several well-known methods for killing mammals that are painless and fast. It's probably unethical, however, to list them in a forum like this. It's not a good kind of information to throw in people's faces.
Speaking generally, though, animals are euthanised using drugs that kill them in seconds with no visible distress. There's a particular method used (primarily I believe) for slaughtering turkeys by essentially replacing the oxygen they breathe with a gas that feels like breathable air but isn't. It's very simple, very cheap, and it's used because even though the birds take several seconds to die, they are so calm that they don't struggle. There's another technique often used by assassins to fake a heart attack. It requires specialised equipment, but it's absolutely instantaneous, leaves no visible mark, and causes so little distress that the victim cannot be seen to have struggled or suffered any pain.
All these methods are very well known, widely available, and I have no doubt that the barbarians who administer these horrible drug cocktails know of them. So why aren't they used? Because they want to cause pain and distress. They are using the pretence of an execution to torture people to death.
[disclaimer: I too oppose the death penalty for all the usual reasons]
posted by Dreadnought at 6:07 PM on June 29, 2015 [19 favorites]
Extremely disappointing. 3 botched executions so far and counting.
posted by likeatoaster at 6:09 PM on June 29, 2015 [1 favorite]
posted by likeatoaster at 6:09 PM on June 29, 2015 [1 favorite]
"But we federal judges live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans’ everyday lives. The suggestion that the incremental deterrent effect of capital punishment does not seem 'significant' reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others. Let the People decide how much incremental deterrence is appropriate."If I didn't know any better, I'd say Scalia is setting up a fairly watertight case against the death penalty and current application of the justice system against America's poor and minority populations.
posted by schmod at 6:14 PM on June 29, 2015 [12 favorites]
I still do not understand how the executing states can't be smarter about their doings. People OD all the time, presumably taking pleasure. Date rape drugs are fiendishly effective. It is entirely possible to do the whole execution virtually by stealth. So what is the holdup with getting it rght, if states are going to execute? The police are pre-executing right and left in our nation.
It is time we fix things. Unfortunately the will of the people puts Dale Cox in office. He represents some horrific hive mind. I would rather corruption were not the American way of life.
So don't waste your political power on posture, be sure to vote, at.every opportunity. With your personal efforts make this country a more just place.
Officially murdering the falsely accused, murdering the victims of our system who murder, murdering the insane, the intellectually disabled, murdering the citizens of foreign lands, unfortunately in the way of some future money, it is all that, not to mention murdering the planet we live on, we are some badassed, seriously unpleasant monkeys who at the drop of a dollar in the plate, spout whack nonsense about sweet belief.
posted by Oyéah at 6:18 PM on June 29, 2015 [4 favorites]
It is time we fix things. Unfortunately the will of the people puts Dale Cox in office. He represents some horrific hive mind. I would rather corruption were not the American way of life.
So don't waste your political power on posture, be sure to vote, at.every opportunity. With your personal efforts make this country a more just place.
Officially murdering the falsely accused, murdering the victims of our system who murder, murdering the insane, the intellectually disabled, murdering the citizens of foreign lands, unfortunately in the way of some future money, it is all that, not to mention murdering the planet we live on, we are some badassed, seriously unpleasant monkeys who at the drop of a dollar in the plate, spout whack nonsense about sweet belief.
posted by Oyéah at 6:18 PM on June 29, 2015 [4 favorites]
I guess a person being executed saying "my whole body is burning" isn't enough to get Scalia and Scalito to realize that the new cocktails do in fact cause unnecessary suffering.
posted by wierdo at 6:21 PM on June 29, 2015 [7 favorites]
posted by wierdo at 6:21 PM on June 29, 2015 [7 favorites]
Worth noting that the challenge failed, in part, because the death row inmates didn't satisfy the "wholly novel requirement" of proving the availability of an alternative way for the state to murder them.
It's disgusting; we should be ashamed.
posted by likeatoaster at 6:22 PM on June 29, 2015 [18 favorites]
It's disgusting; we should be ashamed.
posted by likeatoaster at 6:22 PM on June 29, 2015 [18 favorites]
No one suffers during an execution if they're rendered unconscious first. A wood chipper is a humane way to go if you're knocked out for it. That we don't have that option--take a narcotic to go to sleep, then use a bolt gun on the prisoner, or a plastic bag over their head--says all that needs be said about the desire for execution to be "humane" or free of suffering.
If nothing else, prisoners could be heavily sedated for the execution. If we're going to kill them, it seems silly to have qualms about forcibly sedating them 30 minutes beforehand.
posted by fatbird at 6:27 PM on June 29, 2015 [2 favorites]
If nothing else, prisoners could be heavily sedated for the execution. If we're going to kill them, it seems silly to have qualms about forcibly sedating them 30 minutes beforehand.
posted by fatbird at 6:27 PM on June 29, 2015 [2 favorites]
Dale Cox doesn't seem like a real person who exists.
By that, I mean that he is more like a cartoon villain - an unpleasant lump of willfully blind bloodthirstiness that should be defeated in some kind of climactic scene where all his lies come tumbling down and the people watching realize that vengeance creates monsters.
It boggles my mind that this is what people wanted, that he is some people's idea of a hero.
Jesus.
I have no words. People are fucked up.
posted by Kutsuwamushi at 6:29 PM on June 29, 2015 [11 favorites]
By that, I mean that he is more like a cartoon villain - an unpleasant lump of willfully blind bloodthirstiness that should be defeated in some kind of climactic scene where all his lies come tumbling down and the people watching realize that vengeance creates monsters.
It boggles my mind that this is what people wanted, that he is some people's idea of a hero.
Jesus.
I have no words. People are fucked up.
posted by Kutsuwamushi at 6:29 PM on June 29, 2015 [11 favorites]
I still do not understand how the executing states can't be smarter about their doings.
You say that like it's an accident.
posted by schmod at 6:42 PM on June 29, 2015 [3 favorites]
You say that like it's an accident.
posted by schmod at 6:42 PM on June 29, 2015 [3 favorites]
There's a particular method used (primarily I believe) for slaughtering turkeys by essentially replacing the oxygen they breathe with a gas that feels like breathable air but isn't.
Nitrogen. Just fill the room with Nitrogen.
posted by leotrotsky at 6:48 PM on June 29, 2015 [8 favorites]
Nitrogen. Just fill the room with Nitrogen.
posted by leotrotsky at 6:48 PM on June 29, 2015 [8 favorites]
I guess a person being executed saying "my whole body is burning" isn't enough to get Scalia and Scalito to realize that the new cocktails do in fact cause unnecessary suffering.
The key word there is unnecessary.
posted by jeather at 6:55 PM on June 29, 2015 [2 favorites]
The key word there is unnecessary.
posted by jeather at 6:55 PM on June 29, 2015 [2 favorites]
Ob Onion: Ohio Replaces Lethal Injection With Humane New Head-Ripping-Off Machine. The really sad thing about this? A machine that tears someones head of and pulverizes it in a few seconds actually would be significantly more humane than what they're doing now.
posted by Grimgrin at 7:10 PM on June 29, 2015 [1 favorite]
posted by Grimgrin at 7:10 PM on June 29, 2015 [1 favorite]
Breyer, in dissent: "But rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution. . . . I shall describe each of these considerations, emphasizing changes that have occurred during the past four decades. For it is those changes, taken together with my own 20 years of experience on this Court, that lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited 'cruel and unusual punishmen[t].'" Breyer identified the cases of Cameron Todd Willingham [previously] and Glenn Ford [previously] as influencing his view.
This is the kind of person I aspire to be.
posted by yesster at 7:49 PM on June 29, 2015 [7 favorites]
This is the kind of person I aspire to be.
posted by yesster at 7:49 PM on June 29, 2015 [7 favorites]
And, as a minor aside, I really find it hard to imagine that people (educated and admittedly intelligent people all around) can have such fundamentally opposed views about the human condition, society in general, and how to reconcile the two for the good of all, WHILE having lunch together.
If that's truly how they function in the course of their duties, then hats off to them all. I don't think I'd last a week listening to all of the ponkety-vorpitude.
posted by yesster at 7:56 PM on June 29, 2015 [3 favorites]
If that's truly how they function in the course of their duties, then hats off to them all. I don't think I'd last a week listening to all of the ponkety-vorpitude.
posted by yesster at 7:56 PM on June 29, 2015 [3 favorites]
For fucks sake, throwing a human being into a blender seems more humane than this mystery meat lethal injection bullshit.
posted by oceanjesse at 7:57 PM on June 29, 2015 [3 favorites]
posted by oceanjesse at 7:57 PM on June 29, 2015 [3 favorites]
Cox does not believe that the death penalty works as a deterrent, but he says that it is justified as revenge. He told me that revenge was a revitalizing force that “brings to us a visceral satisfaction.” He felt that the public’s aversion to the notion had to do with the word itself. “It’s a hard word—it’s like the word ‘hate,’ the word ‘despot,’ the word ‘blood.’ ”
This reads like a deleted monologue for General Ripper in Dr. Strangelove. But apparently people this diseased exist. Wow.
posted by fifthrider at 7:59 PM on June 29, 2015 [16 favorites]
This reads like a deleted monologue for General Ripper in Dr. Strangelove. But apparently people this diseased exist. Wow.
posted by fifthrider at 7:59 PM on June 29, 2015 [16 favorites]
Nothing personal. But if you are OK with capital punishment you are a barbarian in my eyes.
posted by notreally at 7:59 PM on June 29, 2015 [5 favorites]
That crawford article is monstrous. I hope that something comes of it.
posted by Lord_Pall at 8:09 PM on June 29, 2015 [3 favorites]
posted by Lord_Pall at 8:09 PM on June 29, 2015 [3 favorites]
Chemical injection is supposed to be painless. You're supposed to be unconscious at the beginning and your heart is supposed to stop instantly. The problem comes when the state is unable to obtain the necessary drugs (though a mix of being cheap and pharma companies refusing to sell them) and what drugs they do have are administered by wholly unqualified people because well-trained medical professionals refuse to be involved in executions. Between the shitty materials and shitty executioners you get a shitshow.
I suppose one might argue we just need better executioners and materials. Or maybe one might take a step back and consider that perhaps the fact respectable manufacturers and professionals refuse to be involved in this is indicative of its worth as a practice.
Decapitation is such a method: the thing about staying alive afterwards is a myth.
I did a bunch of research on this a while back (because I'm a ghoul apparently), and I couldn't find anything that said we were totally sure people were not conscious, but many accounts of people who were conscious for a short time afterwards.
posted by Anonymous at 8:10 PM on June 29, 2015
I suppose one might argue we just need better executioners and materials. Or maybe one might take a step back and consider that perhaps the fact respectable manufacturers and professionals refuse to be involved in this is indicative of its worth as a practice.
Decapitation is such a method: the thing about staying alive afterwards is a myth.
I did a bunch of research on this a while back (because I'm a ghoul apparently), and I couldn't find anything that said we were totally sure people were not conscious, but many accounts of people who were conscious for a short time afterwards.
posted by Anonymous at 8:10 PM on June 29, 2015
I have to say, I appreciate Cox coming right out and admitting he likes the death penalty because he's a bloodthirsty asshole. I know too many people who try to come up with arguments about it being a deterrent or justice or morally superior, rather than straight-up admitting they're mad at the criminal and want to watch them burn.
Like, good job Utah, bringing back firing squads. Show the world what you really are.
posted by Anonymous at 8:13 PM on June 29, 2015
Like, good job Utah, bringing back firing squads. Show the world what you really are.
posted by Anonymous at 8:13 PM on June 29, 2015
The method of execution cases are as far as I know 100% disengenuous, being brought by people whose motive is to deprive victims of justice, as are the people who cite the delays of the process as cruel and unusual.
Anyone making those arguments sincerely would be advocating model legislation providing for what they consider a more humane execution and streamlining the appellate process for faster execution of death sentences. But I don't think any of them are doing that.
posted by MattD at 8:18 PM on June 29, 2015
Anyone making those arguments sincerely would be advocating model legislation providing for what they consider a more humane execution and streamlining the appellate process for faster execution of death sentences. But I don't think any of them are doing that.
posted by MattD at 8:18 PM on June 29, 2015
Firing squads may actually be less cruel. It's entirely fucked up we even have to discuss this topic in 2015 America.
WaPo:“Lethal injection, which has the veneer of medical acceptability, has far greater risks of cruelty to a condemned person,” Fordham University Law School professor Deborah Denno told the Associated Press in 2010. She called the firing squad a “dignified execution.”posted by Drinky Die at 8:18 PM on June 29, 2015 [1 favorite]
Denno should know. She spent years studying varying execution methods, trying to determine which one is the best. While that’s difficult to answer, it’s more apparent which ones are the worst. Electrocution is a gruesome way to go. So are stoning and hanging, which she says “risked being too long and cruel. Same goes for beheading. Worst is gassing.
“In 1992, for example, Donald Harding’s eleven-minute execution and suffocating pain were so disturbing for witnesses that one reporter cried continuously, two other reporters ‘were rendered walking vegetables for days,’ the attorney general ended up vomiting, and the prison warden claimed he would resign if forced to conduct another lethal gas execution,” she wrote in 2007 in the Fordham Law Review. “While the firing squad has not been systematically evaluated, and may even be the most humane of all methods, it has always carried with it the baggage of its brutal image and roots.”
Like, good job Utah, bringing back firing squads. Show the world what you really are.
Lots of Mormons in Utah. This is/was a Thing. To be honest, I wouldn't have expected them to ever have settled for lethal injection in the first place.
posted by fifthrider at 8:20 PM on June 29, 2015 [2 favorites]
Lots of Mormons in Utah. This is/was a Thing. To be honest, I wouldn't have expected them to ever have settled for lethal injection in the first place.
posted by fifthrider at 8:20 PM on June 29, 2015 [2 favorites]
Regardless what the movies have shown you, most overdoses don't result in death. The human body is extremely difficult to shut down.
It's true it's harder to fatally overdose on opioids (alone) than most people think. I don't know anyone who has survived an overdose who found it to be an unpleasant experience until they woke up though. I said this before but midazolam/hydromorphone should work just fine from the perspective of the condemned unless the executioners royally fuck up. Which of course they do sometimes and this is not a defense of the three-drug cocktail using midazolam with potassium chloride and a paralytic - that's a truly inappropriate revision of an already pointlessly elaborate and failure-prone protocol.
It's just in general I a.) agree with Sys Rq and b.) think the whole issue of method is beside the point of whether we should be executing people at all. I'd go with the firing squad if I were on death row in Utah.
posted by atoxyl at 8:38 PM on June 29, 2015 [1 favorite]
It's true it's harder to fatally overdose on opioids (alone) than most people think. I don't know anyone who has survived an overdose who found it to be an unpleasant experience until they woke up though. I said this before but midazolam/hydromorphone should work just fine from the perspective of the condemned unless the executioners royally fuck up. Which of course they do sometimes and this is not a defense of the three-drug cocktail using midazolam with potassium chloride and a paralytic - that's a truly inappropriate revision of an already pointlessly elaborate and failure-prone protocol.
It's just in general I a.) agree with Sys Rq and b.) think the whole issue of method is beside the point of whether we should be executing people at all. I'd go with the firing squad if I were on death row in Utah.
posted by atoxyl at 8:38 PM on June 29, 2015 [1 favorite]
The method of execution cases are as far as I know 100% disengenuous, being brought by people whose motive is to deprive victims of justice, as are the people who cite the delays of the process as cruel and unusual.
Anyone making those arguments sincerely would be advocating model legislation providing for what they consider a more humane execution and streamlining the appellate process for faster execution of death sentences. But I don't think any of them are doing that.
I'm unfamiliar with this principle you're articulating here where someone who opposes what they feel is an unjust law must be willing to provide an alternate means of accomplishing the same underlying goal, or be considered insincere. A neutral position on capital punishment generally is not required to have an opinion on specific forms of it, just as I would be unjustified in doubting the sincerity of anti-choice zealots who file suit to ban certain categories of abortions based solely on my belief that they are probably against all abortions. The task of coming up with a method of execution that comports with the Constitution is up to the state, not the people filing suit to stop methods they feel are inhumane.
Or, as Justice Sotomayor put it:
Anyone making those arguments sincerely would be advocating model legislation providing for what they consider a more humane execution and streamlining the appellate process for faster execution of death sentences. But I don't think any of them are doing that.
I'm unfamiliar with this principle you're articulating here where someone who opposes what they feel is an unjust law must be willing to provide an alternate means of accomplishing the same underlying goal, or be considered insincere. A neutral position on capital punishment generally is not required to have an opinion on specific forms of it, just as I would be unjustified in doubting the sincerity of anti-choice zealots who file suit to ban certain categories of abortions based solely on my belief that they are probably against all abortions. The task of coming up with a method of execution that comports with the Constitution is up to the state, not the people filing suit to stop methods they feel are inhumane.
Or, as Justice Sotomayor put it:
Nothing compels a State to perform an execution. It does not get a constitutional free pass simply because it desires to deliver the ultimate penalty; its ends do not justify any and all means."posted by tonycpsu at 8:48 PM on June 29, 2015 [11 favorites]
You aren't familiar with disengenuousness, Tony? It's pretty straightforward.
They aren't doing the things that anyone who wished for death sentences to be carried out more quickly and painlessly actually would do. Instead they are doing the things that people who don't want death sentences to be carried out at all do when they recognize that honestly seeking their objective is politically unlikely to succeed.
posted by MattD at 9:06 PM on June 29, 2015
They aren't doing the things that anyone who wished for death sentences to be carried out more quickly and painlessly actually would do. Instead they are doing the things that people who don't want death sentences to be carried out at all do when they recognize that honestly seeking their objective is politically unlikely to succeed.
posted by MattD at 9:06 PM on June 29, 2015
As someone opposed to the death penalty, reading this gave me an (totally wishful-thinking) idea for how to stop death sentences without removing the death penalty, but rather by threat of more death sentences:
If we made a law that for every death sentence exonerated as innocent either before or after being killed, then the prosecuting attorney of the sentencing trial would be held responsible for the death of the innocent person and that attorney would then be sentenced to death.
It fits the same "eye-for-an-eye" philosophy of death penalties, and we could hold the judge responsible, but it's really the prosecutor saying the person deserves death and convincing the judge. Plus the end result would likely be prosecutors not pushing for death penalties thanks to newfound appreciation for the potential of wrong convictions in relation to the value of life.
posted by p3t3 at 9:07 PM on June 29, 2015 [9 favorites]
If we made a law that for every death sentence exonerated as innocent either before or after being killed, then the prosecuting attorney of the sentencing trial would be held responsible for the death of the innocent person and that attorney would then be sentenced to death.
It fits the same "eye-for-an-eye" philosophy of death penalties, and we could hold the judge responsible, but it's really the prosecutor saying the person deserves death and convincing the judge. Plus the end result would likely be prosecutors not pushing for death penalties thanks to newfound appreciation for the potential of wrong convictions in relation to the value of life.
posted by p3t3 at 9:07 PM on June 29, 2015 [9 favorites]
The method of execution cases are as far as I know 100% disengenuous
Without debating whether their motive is to "deprive victims of justice": yes, basically, and that's the answer to the earlier question about why we don't guillotine convicts. Opponents challenge every aspect they can challenge, without challenging the underlying principle, because notwithstanding Justice Breyer's assertion that it now falls to the Court to legislate because the legislative branch's responses "have not worked," few serious legal minds actually believe that capital punishment is unconstitutional.
What Breyer proposes is lazy and dangerous. It is wise, I think, that our justices are shielded by life tenure. It's a great scheme: three divided branches of government, with two being answerable to the people and a third freed from that stricture. But as the famed legal scholar said, "With great power comes great responsibility." It's tremendously easy to fashion rights and prohibitions that you believe reflect contemporary values of right and wrong. It's a lot more difficult to preside over controversies and uphold process.
Personally, I believe the death penalty should be abolished. It is perfectly possible to believe that something is simultaneously wrong, even barbaric, and also permissible under our Constitution. If you want to impose this issue as a litmus test on congressional candidates, so be it. If you want to propose a constitutional amendment, you have my vote. I think this issue rises to that level of importance. But asking the Supreme Court to hold that capital punishment violates our Constitution is disingenuous and subversive. It explicitly does not.
posted by cribcage at 9:07 PM on June 29, 2015 [1 favorite]
Without debating whether their motive is to "deprive victims of justice": yes, basically, and that's the answer to the earlier question about why we don't guillotine convicts. Opponents challenge every aspect they can challenge, without challenging the underlying principle, because notwithstanding Justice Breyer's assertion that it now falls to the Court to legislate because the legislative branch's responses "have not worked," few serious legal minds actually believe that capital punishment is unconstitutional.
What Breyer proposes is lazy and dangerous. It is wise, I think, that our justices are shielded by life tenure. It's a great scheme: three divided branches of government, with two being answerable to the people and a third freed from that stricture. But as the famed legal scholar said, "With great power comes great responsibility." It's tremendously easy to fashion rights and prohibitions that you believe reflect contemporary values of right and wrong. It's a lot more difficult to preside over controversies and uphold process.
Personally, I believe the death penalty should be abolished. It is perfectly possible to believe that something is simultaneously wrong, even barbaric, and also permissible under our Constitution. If you want to impose this issue as a litmus test on congressional candidates, so be it. If you want to propose a constitutional amendment, you have my vote. I think this issue rises to that level of importance. But asking the Supreme Court to hold that capital punishment violates our Constitution is disingenuous and subversive. It explicitly does not.
posted by cribcage at 9:07 PM on June 29, 2015 [1 favorite]
But asking the Supreme Court to hold that capital punishment violates our Constitution is disingenuous and subversive. It explicitly does not.
"These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to death, it is the constitutionally impermissible basis of race. See McLaughlin v. Florida, 379 U.S. 184 (1964) But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."
It can still be held to be in violation in its application, and there's a strong case to be made that the conditions identified in Furman are still very much with us, Gregg notwithstanding, as the linked article ITT demonstrates. Indeed, I would contend that the notion that our legal system is even capable of producing fair death penalty tribunals is dubious, at best. The Constitution may permit or even endorse the death penalty in the abstract but still prohibit it in all real circumstances. This is essentially Breyer's line of reasoning as well: the machinery of state-sponsored bloodletting is so irredeemably capricious and unfair that it's simply unconscionable to allow it to persist.
posted by fifthrider at 9:18 PM on June 29, 2015 [13 favorites]
"These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to death, it is the constitutionally impermissible basis of race. See McLaughlin v. Florida, 379 U.S. 184 (1964) But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."
It can still be held to be in violation in its application, and there's a strong case to be made that the conditions identified in Furman are still very much with us, Gregg notwithstanding, as the linked article ITT demonstrates. Indeed, I would contend that the notion that our legal system is even capable of producing fair death penalty tribunals is dubious, at best. The Constitution may permit or even endorse the death penalty in the abstract but still prohibit it in all real circumstances. This is essentially Breyer's line of reasoning as well: the machinery of state-sponsored bloodletting is so irredeemably capricious and unfair that it's simply unconscionable to allow it to persist.
posted by fifthrider at 9:18 PM on June 29, 2015 [13 favorites]
Firing squads may actually be less cruel.
No, there not. Gary Gilmore requested a firing squad and only got it by the recent ruling by the Supremes concerning execution in Griggs vs. Georgia which overrode Furman vs. Georgia which stated:
"The arbitrary and inconsistent imposition of the death penalty violates the Eighth and Fourteenth Amendments, and constitutes cruel and unusual punishment."
I believe this is what Breyer is addressing about the unconstitutionally of executions Yesster cites. As an aside, Utah did not take a chance and choose to not use a blank.
Now, if you would have researched the issue perhaps the idea of a firing squad might not seem so bright.
posted by clavdivs at 9:21 PM on June 29, 2015 [2 favorites]
No, there not. Gary Gilmore requested a firing squad and only got it by the recent ruling by the Supremes concerning execution in Griggs vs. Georgia which overrode Furman vs. Georgia which stated:
"The arbitrary and inconsistent imposition of the death penalty violates the Eighth and Fourteenth Amendments, and constitutes cruel and unusual punishment."
I believe this is what Breyer is addressing about the unconstitutionally of executions Yesster cites. As an aside, Utah did not take a chance and choose to not use a blank.
Now, if you would have researched the issue perhaps the idea of a firing squad might not seem so bright.
posted by clavdivs at 9:21 PM on June 29, 2015 [2 favorites]
And, what fifthrider said.
Timing!
And speaking of timing:
"Shortly after the execution had started and Chessman was already reacting to the hydrogen cyanide gas, the telephone rang. The caller was a judge's secretary informing the warden of a new stay of execution. The warden responded, "It's too late; the execution has begun."
posted by clavdivs at 9:27 PM on June 29, 2015 [3 favorites]
Timing!
And speaking of timing:
"Shortly after the execution had started and Chessman was already reacting to the hydrogen cyanide gas, the telephone rang. The caller was a judge's secretary informing the warden of a new stay of execution. The warden responded, "It's too late; the execution has begun."
posted by clavdivs at 9:27 PM on June 29, 2015 [3 favorites]
The method of execution cases are as far as I know 100% disengenuous, being brought by people whose motive is to deprive victims of justice
No. Their motive is to prevent state-sanctioned murder of potentially innocent people. See Scalia's obscene adherence to killing McCollum, who was fully exonerated. Disingenuous is framing that as depriving victims of justice. Revenge is not justice. Murder perpetrated by the state is not justice. The terrifying number of innocent men on death row are not receiving justice. Nor are victims, when innocent men go to jail and face execution for the crimes of others.
posted by feckless fecal fear mongering at 9:52 PM on June 29, 2015 [9 favorites]
No. Their motive is to prevent state-sanctioned murder of potentially innocent people. See Scalia's obscene adherence to killing McCollum, who was fully exonerated. Disingenuous is framing that as depriving victims of justice. Revenge is not justice. Murder perpetrated by the state is not justice. The terrifying number of innocent men on death row are not receiving justice. Nor are victims, when innocent men go to jail and face execution for the crimes of others.
posted by feckless fecal fear mongering at 9:52 PM on June 29, 2015 [9 favorites]
The method of execution cases are as far as I know 100% disengenuous, being brought by people whose motive is to deprive victims of justice, as are the people who cite the delays of the process as cruel and unusual.
Anyone making those arguments sincerely would be advocating model legislation providing for what they consider a more humane execution and streamlining the appellate process for faster execution of death sentences. But I don't think any of them are doing that.
With reference to the delays in the process being cruel and unusual, Breyer explicitly addresses this in his dissent and exposes the flaw in your claim that any argument along these lines that wasn't disingenuous would include suggestions for streamlining the appellate process.
According to Breyer, the delays are the inevitable result of providing the level of due process required by the Constitution. (He cites Furman: death "differs from all other forms of criminal punishment, not in degree but in kind' and Roper: the 8th Amendment must be applied to death penalty cases "with special force."
The failure to propose a way to streamline the process isn't disingenuous, according to Breyer; delay is in part a problem the Constitution's own demands create.
posted by layceepee at 9:56 PM on June 29, 2015 [3 favorites]
Anyone making those arguments sincerely would be advocating model legislation providing for what they consider a more humane execution and streamlining the appellate process for faster execution of death sentences. But I don't think any of them are doing that.
With reference to the delays in the process being cruel and unusual, Breyer explicitly addresses this in his dissent and exposes the flaw in your claim that any argument along these lines that wasn't disingenuous would include suggestions for streamlining the appellate process.
According to Breyer, the delays are the inevitable result of providing the level of due process required by the Constitution. (He cites Furman: death "differs from all other forms of criminal punishment, not in degree but in kind' and Roper: the 8th Amendment must be applied to death penalty cases "with special force."
The failure to propose a way to streamline the process isn't disingenuous, according to Breyer; delay is in part a problem the Constitution's own demands create.
posted by layceepee at 9:56 PM on June 29, 2015 [3 favorites]
The Gallup graph on Death Penalty opinions, makes me very very sad.
I can only hope the current focus on race will result in a more critical view of the death penalty, because goodness knows they're intimately connected.
posted by tychotesla at 10:23 PM on June 29, 2015
I can only hope the current focus on race will result in a more critical view of the death penalty, because goodness knows they're intimately connected.
posted by tychotesla at 10:23 PM on June 29, 2015
lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited 'cruel and unusual punishmen[t].'
California has 731 men and 20 women on death row, hasn't executed anyone in almost a decade, and has only executed 13 people since 1978. If California resumed executions it would take more than one execution a week for the next 14 years to kill them all. Since the most recent execution 49 inmates have died of cancer, drug overdose, suicide or other causes.
Even if we stipulate that every death row inmate is actually guilty and they all did horrible things, how is it not cruel and unusual to execute a specific person? A US district judge ruled California's death penalty unconstitutional last July, largely on those grounds.
posted by kirkaracha at 11:09 PM on June 29, 2015 [2 favorites]
What's that? Someone in a courtroom is professing to be sincere about something that's not actually their main concern? By the gods, they're just trying to manipulate the laws to produce an outcome!! THIS IS NOT JUSTICE.
posted by nom de poop at 2:09 AM on June 30, 2015 [2 favorites]
posted by nom de poop at 2:09 AM on June 30, 2015 [2 favorites]
Yeah I really don't understand how the 'cruel and unusual' thing hasn't scuppered the death penalty in the US and would love for someone to explain why. It's been, unchallengeably, deeply unusual for many many years for a rich country with a tradition of rule of law and a discourse of rights to have the death penalty. It seems utterly bizarre that things like marriage equality can get through and yet the US still executes mostly poor and black people as if the 20th century never happened. I mean, medieval Russia had less bloodthirsty criminal law. It's crazy, but people in the mainstream of US politics seem to go along with it.
posted by Mocata at 2:31 AM on June 30, 2015
posted by Mocata at 2:31 AM on June 30, 2015
The reason why is simple. As Scalia notes, the Constitution explicitly endorses capital punishment:
There are two questions in the issue of rendering capital punishment unconstitutional. (There are also other ways to prohibit it. We don't need to render it unconstitutional.) The first is whether we should, and the second is how. Assuming we all agree on the threshold question—that we should make capital punishment unconstitutional—the next question is whether nine judges should pretend the document says something it doesn't, or whether our entire country should be required to engage the process (which exists) for amending the document. Process matters.
posted by cribcage at 4:53 AM on June 30, 2015 [2 favorites]
[N]ot once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible. The reason is obvious: It is impossible to hold unconstitutional that which the Constitution explicitly contemplates. The Fifth Amendment provides that “[n]o person shall be held to answer for a capital...crime, unless on a presentment or indictment of a Grand Jury,” and that no person shall be “deprived of life...without due process of law.”As you probably know, the Supreme Court is responsible for interpreting the Constitution. Breyer's assertion is fairly straightforward: because the Court has interpreted the Eighth Amendment to measure cruelness and unusualness by contemporary standards, the fact that capital punishment can be plausibly considered cruel and unusual by today's standard should trump the fact that it is "explicitly contemplate[d]" by the Constitution. While straightforward, this is also very controversial; the Court interprets the Constitution, yes, but you don't typically "interpret" text to reject what it very clearly and explicitly endorses.
There are two questions in the issue of rendering capital punishment unconstitutional. (There are also other ways to prohibit it. We don't need to render it unconstitutional.) The first is whether we should, and the second is how. Assuming we all agree on the threshold question—that we should make capital punishment unconstitutional—the next question is whether nine judges should pretend the document says something it doesn't, or whether our entire country should be required to engage the process (which exists) for amending the document. Process matters.
posted by cribcage at 4:53 AM on June 30, 2015 [2 favorites]
few serious legal minds actually believe that capital punishment is unconstitutional
This is false. Both the "evolving standards of decency" argument for unconstitutionality and the racial/social class disparity argument for unconstitutionality are widely held among many of the "serious legal minds" I know (which includes law professors, law firm partners, legal philosophers, and judges).
And that assertion seems to forget that Justices Marshall, Brennan, and Blackmun ever existed. Or perhaps you don't consider these serious legal minds?
posted by sallybrown at 5:29 AM on June 30, 2015 [7 favorites]
This is false. Both the "evolving standards of decency" argument for unconstitutionality and the racial/social class disparity argument for unconstitutionality are widely held among many of the "serious legal minds" I know (which includes law professors, law firm partners, legal philosophers, and judges).
And that assertion seems to forget that Justices Marshall, Brennan, and Blackmun ever existed. Or perhaps you don't consider these serious legal minds?
posted by sallybrown at 5:29 AM on June 30, 2015 [7 favorites]
Apparently it isn't only Supreme Court justices who don't see a problem with "my whole body is burning."
posted by wierdo at 5:48 AM on June 30, 2015
posted by wierdo at 5:48 AM on June 30, 2015
More to the point, I think that directly invokes the prohibition on cruel and unusual punishment. It's a novel idea that the plaintiffs should be the ones to come up with a method of execution that isn't cruel, but I have come to expect that from the wingers on the Court, despite their protestations of precedent and originalism.
posted by wierdo at 5:51 AM on June 30, 2015
posted by wierdo at 5:51 AM on June 30, 2015
Cribcage, it's a bit disingenuous on your part to pretend that there aren't different schools of constitutional interpretation. Should be/is can turn on that -- a theorist can certainly believe that the dp IS now unconstitutional, despite reference to "capital crimes" within the document.
And, there's nothing disingenuous about believing that it's cruel and unusual as applied, AND unconstitutional full stop, and simply choosing to go with the claim that seems most likely to succeed with the current Court.
Bless their hearts.
posted by allthinky at 6:06 AM on June 30, 2015 [2 favorites]
And, there's nothing disingenuous about believing that it's cruel and unusual as applied, AND unconstitutional full stop, and simply choosing to go with the claim that seems most likely to succeed with the current Court.
Bless their hearts.
posted by allthinky at 6:06 AM on June 30, 2015 [2 favorites]
It's a novel idea that the plaintiffs should be the ones to come up with a method of execution that isn't cruel
It comes from Roberts's plurality opinion in Baze v. Rees. It is certainly not as strong a requirement as Alito makes it out to be because it's recent precedent in a plurality opinion (and imo poorly reasoned and illogical), but it doesn't come out of nowhere.
posted by sallybrown at 6:14 AM on June 30, 2015 [1 favorite]
It comes from Roberts's plurality opinion in Baze v. Rees. It is certainly not as strong a requirement as Alito makes it out to be because it's recent precedent in a plurality opinion (and imo poorly reasoned and illogical), but it doesn't come out of nowhere.
posted by sallybrown at 6:14 AM on June 30, 2015 [1 favorite]
Assuming we all agree on the threshold question—that we should make capital punishment unconstitutional—the next question is whether nine judges should pretend the document says something it doesn't, or whether our entire country should be required to engage the process (which exists) for amending the document. Process matters.
Our system is, frankly less an elegant, continuous process than a long series of kludges aimed at achieving desired outcomes. One of those kludges has been the shift away from the amendment process, which has become more and more unwieldy as the country and the franchise expanded, and towards flexible interpretations of the existing amendments through judicial review.
Part of why that has happened is that the amendment process arguably assumes a more homogeneous, smaller electorate than what we have now, and a smaller number of states. Notice how the ratification process for later amendments became slower and slower; inertia has a lot to do with successful ratification, and it is harder to move fifty states than thirteen. But of course the only way to streamline or modify the amendment process as a whole, rather than trying to win fifty binding referenda, is to amend the Constitution. You see the dilemma.
Pecliarly, though, we have often played fast and loose outside the amendment process, in ways both good and bad. The tendency to grant emergency powers to the Presidency in times of crisis stretches back virtually to the beginnings of the Republic, the expansion of things like the Commerce Clause to cover unforeseen exigencies, and arguably even the power of judicial review itself are among these kludges. I think the battle for purely Constitutional process is long since lost, and in many cases was lost for good reason. In that context, flexibility of interpretation is the first, not the last resort, and the dream of returning to some sort of purism of process is quixotic at best and reactionary at worst.
In a way, process purism has always been quixotic: it relies on the assumption that people can construct rational means to achieve optimal outcomes; like a lot of the legal system, it rests on a set of 17th, 18th, and 19th century ideas about human beings, societies, and nations that nearly every other branch of human endeavor has long since moved beyond or greatly modified. Even int hat time, the common law often allowed the kind of flexibility that a rigid adherence to enumerated process does not.
The worst thing that ever happened to the Constitution was its sacralization in popular politics; even the Founders did not intend it to remain largely unchanged for all eternity, and for a while at least Americans understood that.
posted by kewb at 6:26 AM on June 30, 2015 [4 favorites]
Our system is, frankly less an elegant, continuous process than a long series of kludges aimed at achieving desired outcomes. One of those kludges has been the shift away from the amendment process, which has become more and more unwieldy as the country and the franchise expanded, and towards flexible interpretations of the existing amendments through judicial review.
Part of why that has happened is that the amendment process arguably assumes a more homogeneous, smaller electorate than what we have now, and a smaller number of states. Notice how the ratification process for later amendments became slower and slower; inertia has a lot to do with successful ratification, and it is harder to move fifty states than thirteen. But of course the only way to streamline or modify the amendment process as a whole, rather than trying to win fifty binding referenda, is to amend the Constitution. You see the dilemma.
Pecliarly, though, we have often played fast and loose outside the amendment process, in ways both good and bad. The tendency to grant emergency powers to the Presidency in times of crisis stretches back virtually to the beginnings of the Republic, the expansion of things like the Commerce Clause to cover unforeseen exigencies, and arguably even the power of judicial review itself are among these kludges. I think the battle for purely Constitutional process is long since lost, and in many cases was lost for good reason. In that context, flexibility of interpretation is the first, not the last resort, and the dream of returning to some sort of purism of process is quixotic at best and reactionary at worst.
In a way, process purism has always been quixotic: it relies on the assumption that people can construct rational means to achieve optimal outcomes; like a lot of the legal system, it rests on a set of 17th, 18th, and 19th century ideas about human beings, societies, and nations that nearly every other branch of human endeavor has long since moved beyond or greatly modified. Even int hat time, the common law often allowed the kind of flexibility that a rigid adherence to enumerated process does not.
The worst thing that ever happened to the Constitution was its sacralization in popular politics; even the Founders did not intend it to remain largely unchanged for all eternity, and for a while at least Americans understood that.
posted by kewb at 6:26 AM on June 30, 2015 [4 favorites]
The method of execution cases are as far as I know 100% disengenuous, being brought by people whose motive is to deprive victims of justice
Frankly, I can't imagine how anyone would say such a thing if they were actually familiar with the brutality of the executions that have been botched using these drugs, and the sheer abundance of professional, medical, expert opinion that the current cocktail has a substantial likelihood of causing "burning, searing pain." There is plenty of room for support of the death penalty to co-exist with a distaste for torture (for example, arguably, in the Constitution).
Basically, I don't see anything disingenuous in the argument that literal torture caused by relatively new drugs that we don't fully understand is against the Constitution's ban on cruel and unusual punishment. Unfortunately, only 4 out of 9 Supreme Court justices agree.
posted by likeatoaster at 7:28 AM on June 30, 2015 [5 favorites]
Frankly, I can't imagine how anyone would say such a thing if they were actually familiar with the brutality of the executions that have been botched using these drugs, and the sheer abundance of professional, medical, expert opinion that the current cocktail has a substantial likelihood of causing "burning, searing pain." There is plenty of room for support of the death penalty to co-exist with a distaste for torture (for example, arguably, in the Constitution).
Basically, I don't see anything disingenuous in the argument that literal torture caused by relatively new drugs that we don't fully understand is against the Constitution's ban on cruel and unusual punishment. Unfortunately, only 4 out of 9 Supreme Court justices agree.
posted by likeatoaster at 7:28 AM on June 30, 2015 [5 favorites]
Dale Cox is a scumbag- cartoonishly so- but philosophically, he has a point: retribution is more moral a choice than deterrence. The former fits squarely in the Hammurabic tradition, whereas the latter necessarily makes a tool of the state out of the executed, for the purposes of spooking the populace; thus removing their humanity. Now I must wash.
posted by ergomatic at 9:00 AM on June 30, 2015
posted by ergomatic at 9:00 AM on June 30, 2015
Yesterday’s ruling was odd. I expected the majority to rule the way it did; I did not expect them to argue that, because the death penalty has been ruled to be constitutional in theory, there must therefore be a way to kill people that is available to Oklahoma right now that passes constitutional muster, and thus the burden is on the petitioners to suggest a better alternative than the method they’re challenging. That’s plainly ridiculous.
The dissent rightly points out that this rule would allow Oklahoma to execute its prisoners by burning at the stake, as long as challengers to that execution method could not point to another method that was less cruel and also feasible for Oklahoma to implement. The majority opinion takes offense at this characterization: “That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments.” But the majority opinion does not actually explain why this characterization is wrong, presumably because they can’t.
Midazolam, “properly administered” (whatever the hell that means in this context), may or may not render a to-be-executed prisoner unconscious and insensate to pain. We don’t know for sure, though the preponderance of medical evidence gives us reason to suspect it would not in at least some cases. Five justices think it’s the burden of the petitioners to prove it would not — and, beyond that, to demonstrate that Oklahoma has a better way to kill people even in the face of said proof. The other four justices think it’s Oklahoma’s burden to prove it would before they’re allowed to use it in an execution regimen.
Breyer’s opinion is also worth reading. It heartens me that we might have four votes on the Court for declaring the death penalty unconstitutional, though I’d also wonder why Ginsburg was the only one to join. Not worth reading is Scalia’s concurrence, which is dedicated to shitting on Breyer’s opinion. In all that I’ve read of Scalia’s pro-death-penalty arguments, I’ve never seen him try to engage with the idea that we have almost certainly executed innocent people. He, a Supreme Court Justice, equates “legally guilty” with “actually guilty” in a way that makes me seriously uncomfortable. Though he won’t come out and say it, I strongly suspect he actually believes that the death penalty is worth it even if we occasionally kill an innocent person.
posted by savetheclocktower at 9:44 AM on June 30, 2015 [5 favorites]
The dissent rightly points out that this rule would allow Oklahoma to execute its prisoners by burning at the stake, as long as challengers to that execution method could not point to another method that was less cruel and also feasible for Oklahoma to implement. The majority opinion takes offense at this characterization: “That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments.” But the majority opinion does not actually explain why this characterization is wrong, presumably because they can’t.
Midazolam, “properly administered” (whatever the hell that means in this context), may or may not render a to-be-executed prisoner unconscious and insensate to pain. We don’t know for sure, though the preponderance of medical evidence gives us reason to suspect it would not in at least some cases. Five justices think it’s the burden of the petitioners to prove it would not — and, beyond that, to demonstrate that Oklahoma has a better way to kill people even in the face of said proof. The other four justices think it’s Oklahoma’s burden to prove it would before they’re allowed to use it in an execution regimen.
Breyer’s opinion is also worth reading. It heartens me that we might have four votes on the Court for declaring the death penalty unconstitutional, though I’d also wonder why Ginsburg was the only one to join. Not worth reading is Scalia’s concurrence, which is dedicated to shitting on Breyer’s opinion. In all that I’ve read of Scalia’s pro-death-penalty arguments, I’ve never seen him try to engage with the idea that we have almost certainly executed innocent people. He, a Supreme Court Justice, equates “legally guilty” with “actually guilty” in a way that makes me seriously uncomfortable. Though he won’t come out and say it, I strongly suspect he actually believes that the death penalty is worth it even if we occasionally kill an innocent person.
posted by savetheclocktower at 9:44 AM on June 30, 2015 [5 favorites]
Living in the US, where the debate over the last few decades around the death penalty has been around details of implementation (e.g.: is this drug suitable for lethal injection?) and application (e.g.: is it disproportionately affecting African Americans?), I guess it's sometimes easy to lose sight of the fact that the American practice of capital punishment is a pretty extreme outlier among modern, industrialized countries. Just take a look at this map and table on Wikipedia. FYI: that one blotch of orange in Europe is Belarus.
posted by mhum at 10:45 AM on June 30, 2015 [1 favorite]
posted by mhum at 10:45 AM on June 30, 2015 [1 favorite]
MattD: They aren't doing the things that anyone who wished for death sentences to be carried out more quickly and painlessly actually would do.
They don't want death sentences to be carried out more quickly, they want specific methods that they feel violate the constitution to be banned. It's not necessary for them to have or articulate a position on the death penalty in order to object to specific methods, nor does them not articulating such a position or making the job of the state easier by recommending other methods make them disingenuous. They may very well wish to end all executions, but that's irrelevant to cases brought to ban specific methods.
posted by tonycpsu at 1:48 PM on June 30, 2015 [1 favorite]
They don't want death sentences to be carried out more quickly, they want specific methods that they feel violate the constitution to be banned. It's not necessary for them to have or articulate a position on the death penalty in order to object to specific methods, nor does them not articulating such a position or making the job of the state easier by recommending other methods make them disingenuous. They may very well wish to end all executions, but that's irrelevant to cases brought to ban specific methods.
posted by tonycpsu at 1:48 PM on June 30, 2015 [1 favorite]
Midazolam, “properly administered” (whatever the hell that means in this context), may or may not render a to-be-executed prisoner unconscious and insensate to pain.
Midazolam has been used for decades as a sedative and anesthetic. If you've ever been in the ICU, you've probably received it. In theory, it's not a terrible choice for inducing unconsciousness prior to execution. It has a somewhat more gradual onset than thiopental (minutes as opposed to seconds) and more variability in terms of its effects, but a high enough dose will pretty reliably knock someone out. That said, it's not commonly used as a single agent for general anesthesia. More often it's used in combo with something like nitrous or fentanyl, which have analgesic properties that midazolam lacks. Multi-drug combos are pretty much the standard in any case for general anesthesia.
posted by dephlogisticated at 4:53 PM on June 30, 2015
Midazolam has been used for decades as a sedative and anesthetic. If you've ever been in the ICU, you've probably received it. In theory, it's not a terrible choice for inducing unconsciousness prior to execution. It has a somewhat more gradual onset than thiopental (minutes as opposed to seconds) and more variability in terms of its effects, but a high enough dose will pretty reliably knock someone out. That said, it's not commonly used as a single agent for general anesthesia. More often it's used in combo with something like nitrous or fentanyl, which have analgesic properties that midazolam lacks. Multi-drug combos are pretty much the standard in any case for general anesthesia.
posted by dephlogisticated at 4:53 PM on June 30, 2015
> Midazolam has been used for decades as a sedative and anesthetic. If you've ever been in the ICU, you've probably received it. In theory, it's not a terrible choice for inducing unconsciousness prior to execution. It has a somewhat more gradual onset than thiopental (minutes as opposed to seconds) and more variability in terms of its effects, but a high enough dose will pretty reliably knock someone out.
Sure. But if you haven’t yet, you should read Sotomayor’s dissent, which is a good analysis of the expert evidence. Everyone agrees that midazolam can induce unconsciousness. The dissent says it has not been established that midazolam can maintain unconsciousness by itself, as demonstrated in Clayton Lockett’s execution; he was given a dose, declared unconscious, then woke up. (Some would say this was because of an IV failure, but an autopsy suggests that enough midazolam had been administered to knock Lockett out.)
Oklahoma’s response to the Lockett debacle was to quintuple the amount of midazolam administered, but there is a documented ceiling effect past which increasing the dosage won’t do anything.
posted by savetheclocktower at 11:09 AM on July 1, 2015 [3 favorites]
Sure. But if you haven’t yet, you should read Sotomayor’s dissent, which is a good analysis of the expert evidence. Everyone agrees that midazolam can induce unconsciousness. The dissent says it has not been established that midazolam can maintain unconsciousness by itself, as demonstrated in Clayton Lockett’s execution; he was given a dose, declared unconscious, then woke up. (Some would say this was because of an IV failure, but an autopsy suggests that enough midazolam had been administered to knock Lockett out.)
Oklahoma’s response to the Lockett debacle was to quintuple the amount of midazolam administered, but there is a documented ceiling effect past which increasing the dosage won’t do anything.
posted by savetheclocktower at 11:09 AM on July 1, 2015 [3 favorites]
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