Supreme Court Upholds Execution Protocol:
The Supreme Court handed down Baze v. Rees this morning, upholding the three-drug protocol. The opinion is here. I have to hit the road, unfortunately, so I won't be able to blog more on it right away, but it looks like the vote was ultimately 7-2 to allow the protocol. At the same time, he Court was splintered as to the rationale: There was no majority opinion on exactly what the correct standard is for the constitutionality of execution protocols. My sense is that under the Marks rule, however, the Roberts plurality opinion can be treated as the Court's binding opinion. But that's just based on a quick skim. More later, when I'm back at my computer.
Related Posts (on one page):
- A Judge's Right to Speak ... Versus Getting Things Right
- Why Baze v. Rees Should Not Lead to Endless Litigation:
- Thoughts on Baze v. Rees:
- Must-Read Scalia Opinion
- Supreme Court Upholds Execution Protocol:
Agree with Carolina - Thomas has it right.
Thomas was exactly right. So was Scalia, although the smackdown was a little over the top, IMHO.
It drives me nuts that bureaucratic rules are stopping such an obviously preferable solution (the problem as I understand it is that controlled substances are only available via prescription which doctors are unwilling to provide for executions but a simple change in the law could address this problem).
Although that raises another issue about him, because it sometimes seems like Breyer thinks of himself more like a trial judge in a fact-finding role than as an appellate judge.
But Justice Stevens delivers a rare and refreshing thing -- an honest, straightforward opinion. He shockingly admits that he opposes the death penalty for his own personal reasons, and can't support his opinion in a legal or constitutional way. But he concedes that he's on the wrong side of the argument today. He can't even come up with the usual obtuse reasons to limit capital punishment. He knows that the Court, most of the Legislatures, and most of the People are against him, but he'd still like to overturn the death penalty in his lifetime. So bring him another case and let's have it out, he says.
Justice Scalia calls Stevens on his ruse, but not bitterly in my opinion. I think both of them are actually enjoying this repartee. Bring it on, they're both saying.
Justice Thomas, meanwhile, disrobes the Emperor. Actually, the Emperor was always naked but Justice Thomas forces us to look directly at the nakedness. "[I]t is clear that the Eighth Amendment does not prohibit the death penalty." Bam. "Thrice the Court has considered a challenge to a modern method of execution, and thrice it has rejected the challenge, each time emphasizing that the Eighth Amendment is aimed at methods of execution purposely designed to inflict pain." Boom. "We have neither the authority nor the expertise to micromanage the States’ administration of the death penalty in this manner." Bada-bing.
And I'm not going to make fun of Ginsburg's dissent, though it's easy pickings. She is resolute in her opposition to the death penalty but unwilling to just admit it. What's the opposite of straightforward? Oh, that would be the tactical approach by death penalty opponents -- the meandering, opportunistic, obfuscating, delaying, eyelash-stroking, and frustrating path toward the only end-point they think is correct, their passionate moral view that unfortunately is at odds with the People. The People who bitterly cling to the death penalty.
I agree, and this is not the first time that J. Scalia has let his temper show in his opinions. I love (most of) his positions and his general constitutional approach, but this opinion is just one more datum of evidence that maybe he doesn't (and never did) have the temperament to be Chief Justice (as many were advocating back in 2005).
this was the first time the three drug cocktail protocol was presented not as in a motion to stay exection, but in a less dramatic procedural posture. that's why cert was granted.
when it got up there, everyone realized that this was probably a less than ideal case to consider the appropriate standard for the three drug cocktail cases, because kentucky actually had pretty good execution protocols. once the court got a careful look at the record, i'm guessing the justices wished they'd chosen another case to consider the issue.
that being said, if you what you mean is that you don't understand why the 8th amendment standard to be applied to execution procedure is even a question, then i'm guessing that you are either some caricaturish idealogue or are hopelessly uninformed about the topic.
Thanks, Chief Justice Roberts. You're doing a helluva job keeping the appellate lawyers gainfully employed.
The notion that the Eighth Amendment was ever intended to prevent even the deliberate infliction of pain - to make an execution more pleasant than childbirth or a root canal - is just ludicrous. Justice Stevens' opinion notes that the quest for ever more "humane" methods of execution has nullified the retributive character of the punishment, and argues that this should render the death penalty invalid altogether. To me, his observation is correct, but just shows that the nonsense has already gone too far. If we're going to keep using the death penalty, then it ought to be a penalty imposed on the perp, not a quick, easy escape from life.
Thomas' concurrence, while less cheeky, was really great.
Maybe he's been attending cocktail parties with a certain presidential candidate...
Of the billions in the world, by far most oppose the death penalty. In the US, when given the choice between death and LWOPP, the numbers are close to 50/50. This blithe acceptance of death as "the wanted thing" is the sort of inattention and habit that Justice Stevens rightly rejects.
The best ethical justification for not having torture (or needless torture risk) become an accepted part of killing for the law has as much or more to do with not dehumanizing the person who carries out the execution as caring for the convict.
The USSCT and its admirers remain a parochial bunch who need to get out and see the world. If the justices were a bunch or worldly management consultants (which is what top lawyers are likely to be in 1.5-2 generations), this sort of acceptance of needless risk of torture would be beyond the pale. Scalia should just resign and flog his book full time. What a rude cave-man wanna-be.
Completely irrelevant to the interpretation by the U.S. Supreme Court of the U.S. Constitution regarding U.S. law.
At most, he could have drug Alito and Kennedy into supporting Breyer's fact-intensive concurrence, which (had it been the majority opinion) would have dropped the 5 or 6 sentences that he put in to reassure abolitionists that he's still open to questioning the penalty itself someday. That would have given us a 4-member plurality. Stevens was not to be deterred from having his Blackmun-moment here and atoning for his 70's sins, he would have written what he did regardless. Scalia would therefore have responded as he did. Thomas would still have concurred with his originalist take. And if Ginsburg and Souter would have joined a Breyer majority opinion, then why didn't they join his concurrence? No, even if Roberts had selected the narrowest basis held by any of the Justices, it still would have come out about this way in terms of numbers.
Really, if you look at alot of these cases where the "conservative" wing split 3-2, if you find the side of that which argues for the narrowest grounds you will find Roberts there. Short of stealing all the pens in Justice Scalia's office, I'm not sure what you want the guy to do.
Is that even true? In most of Europe, (Germany aside) the numbers bounce around either side of the 50/50 mark; the DP's abolition there was a case of a democratic deficit rather than any kind of popular demand.
China has the DP and a fairly popular (if, you know, evil) government, as well as a huge chunk of those billions; probably enough to outweigh the Indian contribution to the other side of our hypothetical global plebiscite. And the Islamic world is going to be full of pro-DP people. I don't even see a narrow majority, let alone a vast one.
That's a bit circular, don't you think? "Having read all seven opinions, I have concluded that this 7-2 decision could not have been decided on the basis of two opinions."
Consensus will always involve yielding one's intellectually perfect ideal for something that is close enough, reaches the same result and will produce useful information for future cases. For better or worse, Roberts will get the blame (or credit, depending on one's financial interest in appellate litigation) when the eight other egotists have convinced themselves there's only one Right Answer. He may not be solely to blame, but he's the head fish in this school.
Please ignore the strawman and move to the next sentence of cfw's post, if you will.
Well-grounded. Well, yes.
When you square their view with those of the other justices, then it clearly, and obviously, does not support either Justice Stevens' opinion or Justice Ginsberg's. Justice Breyer's opinion endorses Justice Ginsberg's approach, though not her conclusion.
Of course, Justice Thomas criticizes the plurality (and has the better argument IMHO), but in the end, the plurality decision is the narrowest holding--and I suspect that were Justices Thomas and Scalia "forced" to join another decision, they would state that they approach the Roberts approach over the others presented.
So, to maintain your sanity, have you written your state legislators? Or, perhaps, legislators in the 35 states that permit the death penalty to be carried out through means of this three-drug cocktail? Or your U.S. Representative or Senators?
Or are you just waiting for a liberal activist court to re-read the Constitution to match your preference?
"is that true on the billions-I have read polls that, even in Europe, the public often wants it while the political class does not. further, cfw, why does it matter? if I were to spout that the majority of the world doesn't acknowledge freedom of speech or freedom of religion, would that be sufficient for you to cast those rights, enshrined in our Constitution?"
A nationalistic approach to death penalty / torture / punishment law makes as much sense now as Mercantilism. Nationalism in US law is more and more unconnected with what is happening in consulting, investment banking, lending, accounting, economics, public policy, business, science, medicine.
Law schools like UChic will soon be focusing more and more on law students and law profs who can act and write intelligently on an international/global platform. Top law firms, soon to be publicly owned (or available for sale on public markets), are going to need to go global to compete.
The USSCT needs to develop doctrines that allow more meaningful consideration of things going on beyond US borders, as was done by Madison et al. in coming up with the Constitution in the first place.
It is irrelevant by (parochial) definition what the world thinks about US use of the death penalty - but not irrelevant in fact.
The legal definition of what is relevant in a death/cruelty/torture case needs to be rethought, or the persuasive force of the US in the world legal arena (such as it is) is likely to decline. When it was hard to find US law except in law libraries via lawyers, it was more ok to largely ignore law from the rest of the world. That excuse for ignoring non-US law is gone, thanks to the internet. The USSCT can and should avoid thinking of US law in a parochial manner, as if US law were an island with no meaningful connections with other legal systems.
That does not mean that we reject freedom of speech or freedom of religion if other nations reject those concepts. But when dealing with vague concepts like "cruel and unusual" or "due process" it is not unfaithful to Madison or Jefferson to see and discuss what is done in the UK, EU, Japan, India, China, etc. No economist or i-banker or mgmnt consultant would erect an intellectual/empirical/factual wall on a national border and no lawyer or judge should either. The idea that Madison or Jefferson or the like must have wanted a national-border legal/empirical wall in death/torture/cruelty/due process cases is unsupported by the historical record.
Unfortunately, many of the DP opponents I met were also your typical college "progressives" who attribute all crime to racism or poverty or some such thing, and those folks would readily move the bar and argue that lwop should be abolished. I suspect the criminal defense bar would move that way too.
Hell, even some prosecutors would find their world a nightmare in that scenario. W/o the death penalty around any more, nobody would *ever* plead to lwop. But the public would be constantly demanding it, since the future elimination of the death penalty will be presented as more palatable largely because of lwop's availability. So we'd have to try just about ALL of our murder 1st cases.
1. This is not true. Opiods do not guarantee a painless death. For one, death is by asphyxiation on one's own vomit.
2. Is there ANY evidence that any DP defendant has been given the 3 drug cocktail in error? It's the first drug that makes them unconscious - which if not administered - would cause a painful death. But it's pretty easy to tell whether someone is unconsciousness of lucid. Now, in terms of semi-conscious... well with the dose being 5 GRAMS (normal surgical dose ~350 mgs)... semi-consciousness doesn't happen (despite all that debunked "science" claiming otherwise).
Let's also just remember that lethal injection was instituted as a more humane approach. Now it's no good, too?
1. death is by cocking on one's own vomit OR respiratory failure via fluid in the lungs.
I agree, absent evidence that a substantial group of Americans holds the identical view.
Some opponents make the argument that we can't know whether the condemned feels pain. For them the possibility that they might be is sufficient to oppose the protocol. I have no doubt that there have been cases where those administering have had trouble - missing veins if nothing else. But that's different from evidence. I don't believe there was any evidence presented in this particular case.
Ginsburg argues that the case should be remanded to determine whether there are sufficient safeguards to ensure that the condemned is indeed unconcious.
That's one of Thomas' arguments.
But you bring up the rest of the civilized world. I see several commenters have said that other political opinions are not important to us, but I don't entirely agree.
But it is clear from many surveys that the people of many other countries have significantly divergent opinions about capital punishment that would appear from their governments' positions. So I will contend that a majority of the people in the world favor the death penalty, or at least significant numbers notwithstanding the count of governments opposed.
But that should not overrule the U.S. Constitution.
Then you said: "The legal definition of what is relevant in a death/cruelty/torture case needs to be rethought, or the persuasive force of the US in the world legal arena (such as it is) is likely to decline."
To conflate administration of the death penalty with torture weakens your argument. It's a cheap shot that has no basis in fact. Even Justices Scalia and Thomas strongly support the Eight Amendment's prohibition of any means that deliberately inflict pain, much less anything like torture. Only a few crackpots support torturing criminals (who might even deserve it), but you place yourself among the crackpots when you blithely equate DP and torture.
We're talking about putting to death criminals who have been proven guilty and given upteen chances to overturn their conviction for factual, legal, procedural, or even silly reasons. Only after all this litigation is complete will we kill a murderer, and then only certain murderers who overcome the many hurdles in the adjucation and sentencing process. This is allowed by the U.S. Constitution, and supported by the democratic process. If I support (as I do, fully) the right of New Jersey's citizens to abolish the death penalty, you must support Texas's right to carry it out.
Let's propose a constitutional amendment outlawing the death penalty, and see where that goes. Let the will of the People prevail.
Death penalty litigation is random, irrational and arbitrary in the US and places outside the US where we exercise influence (Afghanistan, Iraq, G'tmo). It is done for political purposes. The procedural safeguards are a chimera - look at the reversal rates in places like TX and CA - virtually zero. The "lightning striking" analogy still holds.
It is time for Scalia to resign for one simple, ethical reason, in my view. He says in the latest torture/death case (that is the unique context of this case, where one is arguably tortured to death by the drug cocktail) that he does not have an opinion about whether or not the death penalty is appropriate, but he will kill anyway. That is depravity by definition, under any reasonable ethical standard or under definitions of psychological pathology. Scalia, if we take him at his word, is a cold blooded killer. He is like Pilate washing his hands of the matter. At least he should be able to say, I personally think this is the right thing to do - to kill this fellow human being. If he cannot say that, is it not ethically time to resign?
"We're talking about putting to death criminals who have been proven guilty and given upteen chances to overturn their conviction for factual, legal, procedural, or even silly reasons. Only after all this litigation is complete will we kill a murderer, and then only certain murderers who overcome the many hurdles in the adjucation and sentencing process. This is allowed by the U.S. Constitution, and supported by the democratic process. If I support (as I do, fully) the right of New Jersey's citizens to abolish the death penalty, you must support Texas's right to carry it out."
The "umpteen" chances to change the result are a myth. The chances of success in a murder case (or perhaps a child rape case) are quite limited, even with a strong defense case. TX is pathetic in what it pays its lawyers in DP cases, in habeas at least. Trial lawyers in CA in DP cases are routinely over-matched and under-resourced. The tribunals are routinely skewed away from a non-death result (military commissions, voir dire to weed out those who will not likely vote for death). It is the judges who manage the charade that is DP litigation, and they should be charged with reforming (while referendums are also important). Keep in mind, the bill of rights is not there to protect the enfranchised with political power, but rather the discrete and insular minorities.
"But you bring up the rest of the civilized world. I see several commenters have said that other political opinions are not important to us, but I don't entirely agree."
Glad to hear you are open on this point.
"But it is clear from many surveys that the people of many other countries have significantly divergent opinions about capital punishment that would appear from their governments' positions. So I will contend that a majority of the people in the world favor the death penalty, or at least significant numbers notwithstanding the count of governments opposed."
Fine, this should be debated. Globally and historically. But if we do that, then Scalia needs to get off his high horse about how no possibility of error exists. If there have been huge numbers of errors in places like Russia, China, Iran, Iraq, KSA, recently and historically, how are we so sure there can be no errors in the US? At a minimum, when deciding what is due process and cruel and unusual, why not allow the empirical evidence to emerge, even if it comes from outside the US? In this day and age, when LWOPP is affordable, why not err in favor of life? I suspect a worldwide referendum, comparing LWOPP to death, would be comfortably supportive of LWOPP.
"But that should not overrule the U.S. Constitution."
It is not overruling Madison or Jefferson, et al., to give meaning, as of now, to concepts like due process and cruel and unusual. The chemicals Roberts blessed were not even available in 1787, I suspect. LWOPP was not practical or routinely available in 1787. Times change, and Scalia's resistance to change, by pretending we are still in a 1787 legal/empirical environment, is about as defensible as creationism.
Zarathustra, I'll take a stab. One problem with that conventional short statement of Marks is that it omits the requirement that the identified concurrence must be one that controls the judgment, not just concurs. For example, Justice Breyer could have written that he concurred because he thinks the Eighth Amendment does not apply to a defendant who has killed more than once. That would be the "narrowest grounds" for concurring, but there would still be a five-member majority who didn't care about the number of victims. His opinion didn't control the outcome. In these cases I think it's easier to look for the opinion under which the judgment would have changed with the least change in the facts, which I think is what "narrowest grounds" is meant to convey. I think Prof. Kerr has correctly identified the plurality opinion as that opinion here. And I'm pretty certain he could do a better job than I at explaining the test.
It is true, however, that in large Texas counties whose prosecutors and judges have acquired significant capital case experience (e.g., Harris, Dallas &Bexar Counties), they tend, on average, to commit fewer reversible errors than in places where the death penalty is taken less seriously. That's a good thing.
you do realize your statement is like a lesson in logical fallacies. the safeguards may very well be poor (or not), but the fact that the REVERSAL RATES are near zero doesn't prove or even suggest that.
No, it's not depravity. The question of whether the death penalty is constitutional or appropriate is not before the court. The courts are supposed to rule only on the questions laid before them, not to make broad rulings about any issue that is related to the case in question.
But it's not Scalia's job to decide whether executing this individual is the right thing to do. That decision was rightfully the responsibility of the State of Kentucky (through the prosecution) and the people of Kentucky (through the jurors). Scalia's job as an appellate judge is only to decide whether the decision was correct as a matter of law under the Constitution.
What does "success" mean, that a murderer is found not guilty? Oops, your words are showing your bias....
Convicted murderers are seldom sentenced to die. Death row inmates are seldom put to death, usually because of procedural or technical issues. So the lack of "success" is actually on the part of the State to carry out the legal sentence against a guilty defendant.
These defendants do have "umpteen" chances. In almost every case, certainly all the cases that make it to SCOTUS, these defendants and their lawyers use these chances to argue about procedure, and never to argue about guilt. Never! We are always spltting hairs about everything except the guilt of the murderer and the impact on his victims' families.
Also: Keep in mind, the bill of rights is not there to protect the enfranchised with political power, but rather the discrete and insular minorities.
The Constitution is there to protect the life and liberty of all the people. To protect the people from murderers. It's ironic that the real victims -- of the out-of-balance condition in adjudicating guilty murderers -- are the minorities you allege we should be protecting. By over-protecting the guilty, we are causing vastly and tragically more deaths among the innocent.
Let's look at the statistics over the past 20-some years:
Guilty murderers not punished = thousands
Guilty murderers who have their death sentence unfulfilled = thousands
Innocent defendants put to death = zero
Defendants found guilty and released on later evidence = well under 1% (probably count them on 2 hands and 2 feet), each one a tragedy of our flawed system.
"The state appeals court has reversed only 8 death penalty verdicts in the last five years, while affirming the convictions and death sentences in 256 cases, according to court statistics. This is the lowest reversal rate in capital cases in the country."
"But it's not Scalia's job to decide whether executing this individual is the right thing to do."
Look at the last paragraph of his concurrence, where he responds to Stevens. Scalia volunteered that he has no opinion on the appropriateness of the DP. If true, that is astounding - Pilate like. He did not say "not my job" - he said I am not moved one way or the other (meaning I feel no need to kill this person, but let's do it anyway). Sort of like grilling ants with a magnifying glass. Time to retire, if that is his current true feeling. When Scalia sees St. Peter at the Pearly Gates he is going to account for the blood on his hands by saying I saw no need for the DP, felt no passion about the matter, so I let it go on because tehy paid me? Seems cave-manish.
"you do realize your statement is like a lesson in logical fallacies. the safeguards may very well be poor (or not), but the fact that the REVERSAL RATES are near zero doesn't prove or even suggest that."
Good thing we need not look at logic alone. The empirical evidence is that the systems are junk, in my view. Reversal rates in CA that went from say 98% to around 5% (after change in court personnel) shows that errors went away? Hardly, the real explanation is a heavier reliance on waiver and harmless error "work around" of glaring errors.
"It is true, however, that in large Texas counties whose prosecutors and judges have acquired significant capital case experience (e.g., Harris, Dallas &Bexar Counties), they tend, on average, to commit fewer reversible errors than in places where the death penalty is taken less seriously. That's a good thing."
That concept of reversible error assumes you have judges who are doing even-handed, non-political review, with well-financed defense counsel and procedures that allow a fair trial. Care to show us any evidence about hours and rates of pay for the defense counsel in the TX habeas and trial cases? Do they get to bill when asleep also? Death Penalty In Texas Case Is Overturned, Citing Lawyer, By RICHARD A. OPPEL JR., Published: August 31, 2000. TX is not fooling anyone.
"What does "success" mean, that a murderer is found not guilty? Oops, your words are showing your bias...."
Not guilty is ok if not guilty. One can also be found guilty but given LWOPP - that can be success also, in some cases. The point is, one needs the really good lawyers for the DP cases, and one needs to pay them well. That is not what TX does, and you know it, I suspect.
"By over-protecting the guilty, we are causing vastly and tragically more deaths among the innocent."
How is LWOPP over-protecting? Bringing murder victims back to life is not what DP litigation is about. That is not going to happen, ever. LWOPP is massive punishment, massive deterrence (imposed promptly), and reversible. It is the decent thing and the ethical thing. We can do it, and should. Why not, in this day and age, in the US?
I've never seen reversible error count how much money defense counsel was paid. Only the capabilities (and occasionally zeal) of counsel. But I've certainly seen a low-paid counsel put up a significantly better case than a well-paid one, who was just phoning it in.
I want to give you credit here, because I respect that you've put a good deal of thought into this. But you keep saying things that just aren't true, or are things you want them to be. And that's not fair to the other people you're discussing with.
Please, please, go back and study up and get your facts and cites squared away and come back. You seem like you really could build a cogent argument here if you did the research.
And, for the record, drop the Scalia stuff. He's doing exactly the right thing that he should be in this case. It's not his concern whether or not someone is put to death in this case. Trying to make silly hits against him isn't going to gain you anything, and frankly is another thing distracting from your argument.
I have commented previously on his concept that U.S. criminal law should somehow bow down to EU bureaucrats because "world opinion" knows better than we rubeish Americans.
But comparing torture to capital punishment; to discuss military commissions in discussing capital punishment(which have not been used to condemn anyone since World War II); to suggest ANYONE that Guantanimo has been executed, are all so incredibly moronic that they do not merit further comment.
But if you add B.T.W.'s condescending tone and match it with his ignorance, then I must sadly conclude that a Kos-kid escaped from that fantasyland website where everything America does is wrong and found his way here.
I do not mind intelligent discussion (I have had many with intelligent people of the left on this site) but I will not deal further with someone who is not only wrong but who talks down to others in the process.
There are articulate and principled opponents of the death penalty. People like you who peddle misinformation do them, and their cause, a great disservice.
Sure he does. If he is asked to do something immoral, against his religion, he can recuse himself or resign. He volunteered his indifference, indifference which is hard to believe, so why is he not opening up the ethical issue. Same could be said for Stevens. For de facto recusals, see Brennan and Marshall opinions in DP cases. Death is not commerce, money, or years of life. It is different, and raises ethical questions that Scalia punts. Like a cave man.
"cfw: Your assertion about Texas is wrong. I've just skimmed, on Westlaw, something over 135 death penalty cases from the last four years. Even ignoring habeas cases, remands for evidentiary hearings, and everything else except direct appeals -- and of course, ignoring the second layer of protection in the federal district and appellate courts -- I easily found over a dozen Texas cases in which death sentences had been reversed. Sure, far more are affirmed than are reversed; but that, again, is equally consistent with the proposition that prosecutors and trial courts are performing well. And of course, it's consistent with non-capital cases as well, in which a large majority of criminal convictions are affirmed on appeal."
You are up to a 8.8% reversal rate. That compares to what in non-capital cases or civil cases? I suspect 8 had to do with rejection of TX recalcitrance by the USSCT (Penry I-III). The DP is a political issue in TX.
Any news on billing for sleeping lawyers or what one can get paid to handle a DP trial or habeas case in TX?
Any chance AG can get his old job back rubber stamping rejections of TX clemency petitions?
The point is there are virtually always mental health issues in DP cases, and ineffective assistance of counsel issues. The TX position is not far from my position - LWOPP is huge punishment, and civil, and a deterrent, and reversible. It is death by imprisonment. So it should not be hard to get a cave man like Scalia to go for an abolish the DP ruling, especially if he listens to his Pope and gets his head out of 1787. Once one tours the big prisons like SanQ, one can see that LWOPP is the proper result in virtually all DP cases. A self defense rationale might justify death in cases on the battlefield, but that is not where the DP is getting used in places like TX. DP work is for folks like Spitzer, looking to build careers. That political ambition we can and should re-channel into LWOPP work. And referenda are not a panacea, since the Bill of Rights is not for the majority, it is for the discrete and insular minorities.
I am as bitter and hateful about murder and child rape and terrorism as anyone. But, I am an LWOPP proponent because to err is human, to be political is human, and we are not going to bring anyone back to life by killing through Scalia (as opposed to using LWOPP). He does not even want to do it, or feel it must be done, so let's give Nino a break. Any other approach is ethically questionable for Nino and those who seek to kill through him.
Many of us consider Brennan's actions to be a dereliction of duty. If he wasn't able to follow the law and uphold death sentences that were ifarly issued and constitutional then he should have resigned.
BTW, how oan Opus Dei fanatic manages to appear to be honest, yet fail to recuse from atheist's Newdow case.
link
[Important Note to Helpful Readers: If we have confusing typos and especially ugly formatting errors, such as an unclosed underline or bold tag, we'd love to hear from you about them -- but please e-mail the author about this, rather than leaving a comment. We often won't read the comments for a while after the post, and if there's a glaring formatting error, we'd see it quickly when we revisit the post, even without the comment; and in any event the comment likely isn't going to be that helpful to your fellow comment readers. So please e-mail us directly about glitches like this. Thanks!]
Comment Policy: We'd like the posts to be civil, of course (no profanity, personal insults, and the like), but we're also hoping that people try to be as calm, reasoned, and substantive as possible. So please, also avoid rants, invective, substantial and repeated exaggeration, and radical departures from the topic of the thread. Sticking with substance -- and staying on-topic -- will make the comments more helpful to other readers, and more pleasant.
As editors, we reserve the right to delete posts, and even to kick out posters, though we hope that both of these will be exceptional events. (We also reserve the right to be busy with other things, and therefore (1) not remove all the posts that might merit removal, and (2) ignore demands such as "You should remove A's posts, because they're just as bad as B's!")
Here's a tip: Reread your post, and think of what people would think if you said this over dinner. If you think people would view you as a crank, a blowhard, or as someone who vastly overdoes it on the hyperbole, rewrite your post before hitting enter.
And if you think this is the other people's fault -- you're one of the few who sees the world clearly, but fools wrongly view you as a crank, a blowhard, or as someone who overdoes it on the hyperbole -- then you should still rewrite your post before hitting enter. After all, if you're one of the few who sees the world clearly, then surely it's especially important that you frame your arguments in a way that is persuasive and as unalienating as possible, even to fools.
Our goal is to provide an interesting and pleasant environment that can help inform readers. To do that, we'll occasionally have to exercise our editorial discretion. Think of this as an in-person discussion group, where having different voices is critical to a great conversation -- but where sometimes the leader has to deal with cranks who sour the conversation more than they enliven it.
Naturally, there's always a risk that this discretion will be used erroneously, no matter how well-intentioned the editor. But discussion groups (especially on the Internet, but also off it) generally need an editor who'll occasionally make such judgments.
And, remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.