Patterico's Pontifications

2/22/2006

There Are Alternatives to Lethal Injection

Filed under: Crime — Patterico @ 6:44 pm



Convicted killer Michael Morales has had his execution delayed because a judge didn’t want him to feel any pain from lethal injection. Dafydd ab Hugh, who has followed the controversy carefully, says:

Let us set up a gallows and have done with him.

My question: could the state legally do this?

I have been knocked off the Internet at home and can’t adequately research the issue. Is our method of execution set by statute, or simply a matter of administrative regulation? Could we simply set up a gallows or a firing squad?

After all, the jurors who sentenced Morales to death didn’t set the method of execution. They just wanted him to die for his horrific crime. If lethal injection is too painful (a ridiculous complaint), there are other methods. Can we lawfully carry out this sentence?

P.S. I don’t know enough about the case to know whether I agree with the death sentence. I have previously blogged that the trial judge’s position in favor of clemency gives me pause. But clemency has been denied, and the reason for the current delay is silly. If Morales has a valid argument why he should not legally be sentenced to death, that’s one thing. But if he doesn’t, I really don’t care if he feels a little pain in the process — nor does that sound like a valid constitutional claim.

UPDATE: I have found the answer. It’s in the Penal Code, here. The choices are lethal gas or lethal injection. Ultraliberal Bay Area federal judge Marilyn Hall Patel ruled the gas chamber cruel and unusual in 1994, and the Ninth Circus upheld the decision in 1996. So, thanks to the federal judicary, lethal injection is currently the only authorized option we have left — and the federal judicary has (for now) eliminated that option too.

34 Responses to “There Are Alternatives to Lethal Injection”

  1. Well, legally, the federal judge has the issue for now, it seems, so the state probably couldn’t use a Romulan disintegrator if they had one.

    I’m told that the Supremes haven’t yet made ANY determination of what is, or is not, “cruel” punishment regarding pain. I have to believe that one could accomplish lethal injection painlessly, given anestheology at all, but if one insists on medical assistance one will run up against medical ethics. Or any other scheme which requires “proof” of painlessness. Which seems the likely outcome of the federal judge’s trap plan ruling.

    I’m wondering where in the Consititution is says “painless” = “not cruel”. I’m pretty sure they had drawing and quartering in mind when they wrote that, certainly not hanging or guillotines or firing squads. Why is it that modern judges think the people who wrote a 4 page federal Constitution were somehow unable to say what they meant?

    I think there are 5 votes on the court to allow hanging, so I’d hope to see this play out. I think there’s a case regarding the right to painless execution pending.

    Kevin Murphy (6a7945)

  2. Again, I’m no lawyer, and I don’t even play one on TV. But I do have some degree of appreciation for the English language and have noted that the conjuntion used in the constitutional test is “and,” not “or.” Which suggests to my non-legally trained mind that a punishment must be both cruel and unusual to be unconstitutional. In other words, if hanging were the means of capital punishment in 38 states, five lawyers in black robes in DC might deenm it cruel, but they couldn’t say it was unusual; therefore, it couldn’t be unconstitutional.

    But then again, I thought the meaning of “Congress shall make no law … ” was pretty clear.

    Diffus (7232c5)

  3. What a quaint notion…elected representatives making decisions. Don’t you know that our robed betters have reserved decisions like this exclusively for themselves?

    Lethal injection was the ‘humane’ alternative to electrocution, gassing and other forms of execution back in the 80’s (much like the electric chair was supposed to be an improvement on hanging). This is nothing more than a power grab by judges opposed to capital punishment.

    Kevin is right, drawing and quartering was de rigueur when the Constitution was ratified. I’d take whatever pain (if any) is involved in a lethal injection over that any day.

    Drew (3d217a)

  4. If lethal injection is too painful (a ridiculous complaint)

    Ridiculous how? Like, its not painful, or you don’t care if it is?

    actus (6234ee)

  5. If pain is the only issue … then … off with his head. He’ll feel nothing.

    But I think that the pain should be the same as that of the victim.

    MOG (36fd70)

  6. It’s infuriating, isn’t it? The condemned prisoner admitted crushing the skull of his victim, raping her as she lay dead or dying.

    And a federal judge is concerned that the murderer not feel any pain.

    It’s a combination of judges gaming the system to figure out a way to prohibit any and all executions by couching it in terms of an 8th Amendment violation, as well as the public’s squeamishness at the prospect of putting the death back in the death penalty.

    Sedating the prisoner and letting him drift off into oblivion on a tidal wave of drugs ain’t my idea of retributive justice.

    If judges wanted to ensure that death was quick and relatively painless, we’d bring back the firing squad, with the bullseye on the condemned man’s head, or borrow the guillotine, which is fast and foolproof.

    The problem is they offend our aesthetic requirements: bloodless and neat.

    Finally, the single most offensive thing about this judge’s actions is the insistence on making medical professionals violate the Hippocratic oath. It’s far too close to the worst characteristics of the Third Reich, and I salute the doctors for telling the judge to, in essence, fuck off.

    Mike Lief (e9d57e)

  7. Painless execution? Put the prisoner in a pressure chamber and slowly pump out the air until the he peacefully falls asleep. Then pump out more air.

    Arthur (817033)

  8. Didn’t the French solve this problem long ago?

    PrestoPundit (78edfc)

  9. actus–

    Basically, I don’t care. So long as the method of execution is not INTENTIONALLY painful, e.g. crushing, burning at the stake, boiling in oil, etc., it’s fine by me. Hanging or firing squad is fairly quick. I don’t much care for the electric chair or gas chamber — it offends me as overly complicated.

    Lethal injection is if anything too antiseptic, but otherwise the level of pain should be minimal. Have you ever had to put a pet down? Do you think it felt pain? Really?

    If you REALLY want to eliminate all but the most momentary pain, a gunshot to the ear seems likely to be best. A bit messy, but no pain.

    Tell me, actus: do you believe that ANY of the people who feel that lethal injection is horrific do so on the basis of the degree of pain? Or is it that they oppose capital punishment and find this their argument du jour?

    Kevin Murphy (6a7945)

  10. I say we starve and dehydrate him to death. That way, he not only won’t feel any pain, he’ll experience euphoria.

    Xrlq (2b6e32)

  11. Xrlq, they used to do that with the cross, the gibbet and the oubliette. I think it would be “cruel and unusual” even to an originalist. I would support a constitutional amendment to allow it for crimes against children. From what I understand about California, the Morales case is par for the course. The State is not really serious about executions and it shows in the fact that it took 25 years, and in the last minute SNAFU.

    nk (5e5670)

  12. Kevin Murphy wrote:

    Well, legally, the federal judge has the issue for now, it seems, so the state probably couldn’t use a Romulan disintegrator if they had one.

    Romulans use disruptors, not disintegrators. Please make a note of this.

    James T. Kirk (3e4784)

  13. While I am opposed to capital punishment, it was clearly contemplated by the Constitution, as late as the Fourteenth Amendment.

    And they didn’t have “lethal injection” at the time, unless they were talking about a lethal injection of lead, propelled by gunpowder. Executions were primarily by hanging, and no one thought that to be “cruel and unusual.”

    Oh, wait, I’m sorry, I forgot — the Constitution is a living document.

    Dana (3e4784)

  14. Lethal injection is if anything too antiseptic, but otherwise the level of pain should be minimal. Have you ever had to put a pet down? Do you think it felt pain? Really?

    I don’t know anything about how lethal injection works or even if its the same as my pet. A vet did come to put down our dog, its was a Dr. and he said it was painless.

    Tell me, actus: do you believe that ANY of the people who feel that lethal injection is horrific do so on the basis of the degree of pain? Or is it that they oppose capital punishment and find this their argument du jour?

    Every argument must be overcome if you’re to kill somoene.

    actus (6234ee)

  15. Kevin:

    Or is it that they oppose capital punishment and find this their argument du jour?

    You’re probably right. The pain argument may be a subargument for many DP opponents – it’s hard to imagine otherwise. But so what?

    The arguments are consistent: Oppose DP, and short of that, minimize the pain.

    biwah (f5ca22)

  16. Biwah wrote:

    The arguments are consistent: Oppose DP, and short of that, minimize the pain.

    I disagree. I oppose capital punishment on both moral and practical grounds, but I have no sympathy for the murderers; if we are going to execute them, it’s difficult for me to worry about whether they feel a twinge from having a needle inserted in a vein, or even real pain from a broken neck in hanging.

    Indeed, going to putting condemned men to sleep like an unwanted puppy probably hurts the cause of capital punishment opponents. After all, we need to be rid of these scum, and we’re not really hurting them, yada, yada, yada.

    I completely oppose capital punishment, but think that if we are going to have it, if the majority of the people want it, we ought to bring back the gallows and hang ’em in the public square. People who support capital punishment ought to see what it is they support, ought to know what their decisions mean.

    Moreover, those who believe that capital punishment is some sort of deterrent ought to support the same thing. How can a little needle, being put gently to sleep, be as much of a deterrent as public hangings, or even Saudi-style beheadings?

    Dana (3e4784)

  17. Dana: okay, I should have said they are not inconsistent, thus allowing for people like you (no disrespect in that). It all depends on who they is, and I think I am describing a significant contingent.

    biwah (f5ca22)

  18. The arguments are consistent: Oppose DP, and short of that, minimize the pain.

    Nah, the only consistency is oppose DP, period. If minimizing the pain were the issue now, as it arguably was when lethal injections were introduced, the current case would have been laughed out of court. At most, the judge would have ordered them to quadruple the dosage of the first drug, thereby ensuring the patient was absolutely unconscious, and probably dead, before the allegedly painful drug was introduced into his system.

    Instead, an evil, sadistic scumbag who inflicted massive pain on an innocent young girl gets to live because killing him might hurt him a little.

    Xrlq (f52b4f)

  19. DP opponents have a few lesser tools in their toolbelt, and they are using them. The pain issue is one, and while it is philosophically distinguishable, they are committed to preventing prisoners from being executed. This is one legal means to do that.

    And just because it’s tactical doesn’t mean they do not believe in the pain argument.

    biwah (f5ca22)

  20. Instead, an evil, sadistic scumbag who inflicted massive pain on an innocent young girl gets to live because killing him might hurt him a little.

    By knowingly inflicting injury on another abrogates societys’ obligation to mercy. Presently the convicted are afforded a ludicrous margin of compassion that was not afforded their victims or society. There comes a point where mercy can become ‘stuck on stupid’ and that is where I think we are at now .

    paul (8e5be1)

  21. Dana said:

    “I completely oppose capital punishment, but think that if we are going to have it, if the majority of the people want it, we ought to bring back the gallows and hang ‘em in the public square. People who support capital punishment ought to see what it is they support, ought to know what their decisions mean.

    Moreover, those who believe that capital punishment is some sort of deterrent ought to support the same thing. How can a little needle, being put gently to sleep, be as much of a deterrent as public hangings, or even Saudi-style beheadings? ”

    Dana makes an excellent point here. And while I have always been in favor of capital punishment, I believe as Dana does that the process has become so sensitized, using capital punishment as a deterrent for murder has become moot.

    Some could say that automatic (mandatory) life in prison, with no possibility for parole, is a more just way to deal with the deterrent factor, and (in the long run) may be even more cruel.

    Why does the victim seem to always be discounted in the evaluation?
    The people of the state of California spoke for Terri Winchell by condeming Morales to death. Does the punishment fit the crime?

    If you read the horrific way the man ended Terri’s life, I doubt he is recieving what he dished out. Either hammer the SOB to death in the most grusome manner, or let him spend the rest of his wretched life in prison. Worrying about if he feels pain does not concern me in the least.

    Rovin (b348f4)

  22. I also agree with Dana. Executions should be at some level public. But so should the reasons.

    Executions should be available as an Internet AV feed, real-time, but only after a short presentation on the crime and evidence as summarized from the trial. Only if the public is clear on both the extreme nature of the crime, and the level of evidence required for such a sentence, will it be able to weigh whether such a punishment is supportable.

    I do not favor open-air hangings, or live TV broadcasts, as they can infringe on people’s right NOT to watch. But the beauty of the Internet is that observers must make some active effort to access.

    I also dislike lethal injections, as I said before, as it is too antiseptic. An execution should be somewhat violent, if only to emphasize it as an extreme punishment for extreme crimes.

    But preventing public viewing is a form of Nanny State censorship that restricts information from a self-governing population. NEVER a good idea, for any “side.” Much like the censorship of 9/11 coverage or the war in Iraq: an honest look into facts, without the filter of censorship, is necessary for the functioning of a free state.

    Kevin Murphy (6a7945)

  23. I think that makes sense Kevin. Comports with the policy behind execution and also opens up the information to the public with appropriate limitations.

    biwah (f5ca22)

  24. I agree with Kevin/biwah

    paul (8e5be1)

  25. Right now, the most common alternative in California is old age.

    Consigliere (f14a5b)

  26. The convicted should be made to attand BAR association meetings until death by boredom.
    4 or 5 should do it.

    Gbear (6a100c)

  27. I oppose the death penalty. But I must admit that at some level I was pleased that the efforts to have Tookie Williams spared because he wrote a few naive children’s books and garnered Hollywood publicity failed. A part of me was glad that the “oldest condemned,” on death row after ordering multiple hits, was not excused because he had aged in prison. And certainly Michael Morales inpires little sympathy after his brutal murderous assault.

    But after the judge who presided at his trial and sentencing came out for clemency, I was disturbed at some of the bloodthirsty reactions and arguments. The judge said that the jailhouse informant who claimed that Morales had confessed and had no remorse had been proven to be noncredible, in large part because he testified that Morales’s statements were in Spanish. The judge claimed that the informant’s testimony was crucial in obtaining a death verdict from the jury, and a death sentence from him.

    This was followed by a barrage of prosecution disclaimers that the special circumstance of lying in wait had been proven on its face and that the informant’s testimony was insignificant in the death decision. If it was so unimportant, why was it offered and argued?

    If the prosecution presents and supports a crucial witness, they also should suffer the consequences when that witness is discredited. Especially when they present jailhouse snitch whores.

    Patterico works in the criminal justice system. I work in the criminal justice system. Many of the commenters work in the criminal justice system. Are any of us so sure of the system’s and our own infallibility that we can rest easily with the death penalty? Even when it feels good?

    nosh (d8da01)

  28. How can lethal injection be either cruel or unusual when the level of pain is identical to the level of pain suffered by millions of people every day when they have their blood drawn?

    Doc Rampage (47be8d)

  29. Dr. Rampage asks:

    How can lethal injection be either cruel or unusual when the level of pain is identical to the level of pain suffered by millions of people every day when they have their blood drawn?

    Oh, my Allah! My wife (an RN) is going to get sued for cruel and unusual punishment!

    Dana (3e4784)

  30. Having doctors part of this process is stupid. There are many people who would volunteer to be the California State Executioner, responsible for safely shooting the condemned criminals in the head when the time comes.

    Wesson (c20d28)

  31. JT Kirk: Note that one form of disruptor was banned by the Federation because it caused pain while killing.

    One type of disruptor, the Varon-T Disruptor, is outlawed in the Federation because it causes a painful, lingering death; threatening a humanoid with one was used to force Commander Data to obey orders while captured by a collector, Kivas Fajo, in the third season Next Generation episode, “The Most Toys”.

    Kevin Murphy (9982dd)

  32. Personally, The best they deserve is to be fed into one of Saddam’s industrial shredders. Head- first for the run-of-the-mill capital offender, feet-first for the child molester/murderers. | As for the judges: Didn’t we honor a lot of them with a ride out-of-town on a rail, after meeting Mr. Tar and Mr. Feathers?

    Another Drew (8018ee)

  33. Personally, The best they deserve is to be fed into one of Saddam’s industrial shredders.

    Then we can invade CA!

    actus (6234ee)

  34. Actus: Well, that would be one way to get rid of the moonbats that run Sacramento.

    Another Drew (8018ee)


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