California Death Penalty Development:
Judge Jeremy Fogel of the Northern District of California issued a Memorandum of Intended Decision this afternoon concluding that the current implementation of the death penalty in California is unconstitutional. According to Judge Fogel, the Constitution regulates the procedures used to carry out an execution via lethal injection, including such matters as the lighting, design, and crowdedness of the room in which the execution occurs; the recordkeeping procedures used during executions; the procedures for screening of members of the execution team; and the training and oversight of the team. California's current practices are inadequate under this standard, Judge Fogel indicated, as they create an undue risk of an Eighth Amendment violation during an execution. As this only a "Memorandum of Intended Decision," not a final decision itself, Judge Fogel gave the state of California 30 days to respond. The memorandum specifically asks the state to inform the Court whether the state plans to change its procedures in light of the memorandum.
This issue presumably is headed for the Supreme Court eventually, and it looks like Judge Fogel's case may be the one that gets there with the most complete record. Stay tuned. Hat tip: Howard.
This issue presumably is headed for the Supreme Court eventually, and it looks like Judge Fogel's case may be the one that gets there with the most complete record. Stay tuned. Hat tip: Howard.
But where does it actually say that executions must be free of all pain? Dying of natural causes is often painful. The criterion should be that the method not be designed to inflict inordinate pain. After that, the 8th Amendment seems silent.
But listening to all this, you'd think we were burning people at the stake. Exasperating. But then, the plaintiff's agenda is rather clear.
I just want to say I had the pleasure of hearing Judge Fogel talk to my legal ethics class (he's a dead lookalike and soundalike for Eugene Levy) and his approach to all his cases is not lighthearted, but he is very practical. This memo exemplifies that. I have to disagree with Prof. Kerr on this case reaching the SCOTUS. I think the State is now in a position where it will take much less effort to change the directive than to litigate the matter up.
However, people have their tastes. I would propose that any death row inmate be given hir choice of means of death provided only that:
* The cost may not exceed [say] $50,000
* It can't violate a treaty or expose the general public to risk. [You can't ask to be vaporized by a nuclear weapon.]
* You must die on the appointed day.
There may be a couple other loopholes you may want to seal.
-dk
I oppose the death penalty and think many deserve it. No possible SCOTUS ruling will settle this because the SCOTUS changes.
What does get settled is a life, eventually a case gets through the legal maze and an execution is performed. It is a reverse lottery; there is almost no chance of losing but some do.
As to this particular procedure and the Eighth Amendment, there's no need to take the judge's word for it. Here's the defendant's (State's) expert: "it would be “terrifying” to be awake and injected with the contemplated dosage of pancuronium bromide and it would be “unconscionable” to inject a conscious person with the contemplated amount of potassium chloride." "Unconscionable" sounds a lot like "cruel," especially since the current dispute is about whether the current protocols leave the relevant "patient" is conscious.
The process of dying is so commonly painful and terrifying that most of us, when we can bring ourselves to contemplate our own deaths, hope only that we are among the lucky few who die peacefully in their sleep, or instantly after unknowingly stepping in front of a truck, or in some other relatively painless and terror-free fashion. All the while, however, we know that the odds are likely against us.
Unless, apparently, we are "lucky" enough to have committed and been convicted of a brutal murder, in which case the full power of the state must devote itself to ensuring that our deaths are, if at all possible, painless (not just less painful than my Dad's but, if it can be managed, entirely pain-free) and, of course, not "terrifying." (I realize that Fogel’s decision dutifully recites that the constitution does not require painless executions, but merely that the State must avoid “unnecessary and wanton infliction of pain.” Reading the remainder of the decision reveals this to mean “if you can at all avoid inflicting pain, you’d better do so.” I also recognize that this standard was not contested by either Party – i.e., it appears the State didn’t dispute the nature of its obligations, but only whether it had satisfied them.)
I know Judge Fogel to be an able jurist, and I expect that the State will comply with the requirements set forth in his intended decision. But I wonder if I am the only one who finds it disturbing that capital felons are entitled as a matter of constitutional right not simply to deaths that are no worse than the rest of us are likely to endure, but to deaths that are, if at all possible, as good as those any of us could reasonably hope for, and better than those most of us will get.
Also, similar to AppSocRes, if the absence of pain and terror are so important, I wonder why some other forms of execution aren't used. I've never tried heroin or morphine, but I understand that a lot of people enjoy the experience -- even though some of them end up dead from overdoses. Why not simply administer an overdose of heroin? I tend to think that this would be not only pain-free, but actually enjoyable for the inmate. Surely, no criminal-defense activist could object to that.
But of course they would, because the point with their arguments isn't to administer the death penalty in a pain-free fashion, but rather to make it logistically impossible to administer the death penalty, period.
Judge Fogel is obviously a very bright and dedicated judge, and most of the many nits he picks with the current California procedures would probably be meritorious, were he an administrator in the California prison system, or a warden, or a state legislator. He's not. And the constitutionality of the California system ought not depend on whether they use graph paper or plain paper in their EKG machine, or on whether they use a 60-watt or a 100-watt bulb in the execution chamber.
Well said!
Whether it’s by hanging, bullet or blade (guillotine), there are plenty of methods to dispatch the condemned with a minimum of effort — or damage to the Eighth Amendment to the Constitution.
What I find so galling is the line of thought that any pain inflicted on the inmate in the course of imposing the death sentence is an unconstitutional violation of his rights.
Who amongst us will be so lucky as to shuffle off this mortal coil in a pain-free state? Where do I sign up?
I hardly think it’s asking too much that those criminals ajudged guilty of the most heinous crimes perhaps suffer just a wee bit before breathing their last.
This is far from the first time I’ve had cause to ponder the Ninth Circuit’s prediliction for usurping the role of the legislature — and the people — in ratifying over and over the appropriateness of capital punishment, as well as the methods used.
But it’s the judicial arrogance that drives me to distraction.
You know, innocent people are sentenced to spend life in prison, too. Does that mean that those sentences are unconstitutional? I know that death is irreversable, but so is time -- if someone spends 25 years in prison for a crime they didn't commit, the State can't give him that time back.
Morales was tried and convicted in my county in 1983; he’s had 23 years to game the system.
Terri would have been 42 this year, might have had children of her own; we’ll never know.
One thing we can be sure of is that Terri did not enjoy a merciful end to her young life, so you’ll pardon my lack of concern for the niceties of Morales’ impending exit.
Take a look at what "cruel and unusual punishment" meant in the context of 1789, and it is apparent that liberals are, once again, pulling this stuff out of an orifice where the sun doesn't shine. (Hint: the threat of drawing and quartering's use to persuade those who were tried as part of the Bloody Assize of 1685 to plead guilty in exchange for life in prison. They were then executed.)
I am opposed to the death penalty, partly for practical reasons, such as the lack of an Undo feature (in case someone discovers, "Whoops! Wrong guy!"), but fundamentally because it makes the hair stand up to think of the government making a conscious, rational decision to kill another person when there is an alternative strategy available (life in prison). But I recognize that the Constitution provides for it, and this level of idiocy to justify that there is a violation of the Eighth Amendment just shows what completely dishonest people liberals are.
I don't think is an advisory opinion; there's an actual case or controversy currently in the court.
Tillman Fan:
First, as to the "difference in opinion regarding policy." I think you're incorrect. The judge explicitly stated that he's not addressing whether the legislature is right or wrong to have the death penalty available. he makes his argument based on the fact that it's up to the legislature to decide this, but if they're going to implement that policy, they must do so in a constitutional manner. That's not too much of a stretch for a judge to say, is it? It's hardly a usurpation of the legislature's role in policy judgment; judges pass on the methods a legislature uses to implement policy all the time (that's why there are so many standards of review in constitutional law).
Second, your argument about life imprisonment is beside the point. Of course the state can't give the time back, but it's a lot easier to let someone out after a wrong conviction than it is to bring them back to life.
Did you see that JEB BUSH unilaterally imposed a moratorium on executions in Florida because of the possibility that chemical injection sequences were "torturing people to death."
Jeb Bush. How does that fit into your liberal conspirator model?
Jebbie identified the same problem as the Cali court, that compound 1 was wearing off cuch that compounds 2 and 3 were taking effect while the prisoner was conscious. Nobody disputes that this pain is absolutely excruciating.
In my home town about an hour from Houston, they had pictures at the fire station of the last public hanging held there, the county seat. It looked better attended than the county fair. We should bring those public hangings back.
NO LIVING BEING HAS THE SO CALLED RIGHT TO GIVE DEATH.
ANY HUMAN BEING THAT CONSIDERS DEATH AS A "REVENGE" SHOULD BE SHOT THOUGH THE HEAD. AS TIME GOES ON THE HUMAN BEING HAS LOST PRIDE, RESPECT AND QUALITY. THEY ARE WORSE THAN ANIMALS (ANIMALS ONLY KILL FOR FOOD OR DEFENSE).
THE HUMAN EGO...
I WOULD LOVE TO SEE A JUDGE DIE JUST LIKE THE ONES HE OR SHE HAS KILLED SO THAT THEY WOULD "FULLY" UNDERSTAND WHAT THEY ARE DOING.
AND THEN THEY TALK ABOUT PEACE... HA! AN INSULT TO MANKIND.