Patterico's Pontifications


California’s Lethal Injection Procedure Ruled Unconstitutional

Filed under: Crime,General — Patterico @ 7:51 pm

A judge has declared California’s lethal injection protocol unconstitutional.

Should we simply have firing squads instead?

P.S. The opinion is here. And kudos to the L.A. Times for putting the actual opinion on its web site!

UPDATE: I have read the court’s opinion and plan to have a post on it tomorrow. In short, I am not impressed.

58 Responses to “California’s Lethal Injection Procedure Ruled Unconstitutional”

  1. Here’s a perfect job that can be out-sourced to the Chinese. They only need one man, one pistol, and one cartridge! And, in their system, if a judge makes a fuss, they shoot him first.

    Another Drew (8018ee)

  2. How did the Founders kill convicted murderers? Whatever they did was clearly allowed by the constitution — so lets go back to doing whatever they did. Better yet if they did it downtown with an invited crowd.

    PrestoPundit (a2369b)

  3. Another Drew:

    I don’t think it helps to hold up the Chinese as an ideal.

    I’m reading through the opinion now, and my initial reaction is the same as when I first heard about this: let’s just cut through it and have a firing squad. Very simple. It would require a statutory change, though.

    Patterico (de0616)

  4. Communist China adopted lethal injection in 1997.

    This is a judge running amok. Unfortunately he has the Ninth Circuit rogue-herd to back him up.

    nk (06f5d0)

  5. How about having the U.S. Attorney General direct the Bureau of Prisons to draw up an authoritative how-to manual for use by any state that requests it?

    How about having the U.S. Attorney General set up & make available to any state that requests it a Bureau of Prisons task force to help the states administer the procedure correctly?

    How about having the federal Bureau of Prisons step in & actually carry out the procedure, when a state formally asks, on a state-federal law enforcement assistance basis?

    Alan Cole (70b42c)

  6. Well, if only we could flick a switch and turn out the lights, then the Court


    be satisfied.

    Matt (4a11f1)

  7. How about having the U.S. Attorney General direct the Bureau of Prisons to draw up an authoritative how-to manual for use by any state that requests it?

    How about having the U.S. Attorney General set up & make available to any state that requests it a Bureau of Prisons task force to help the states administer the procedure correctly?

    How about having the federal Bureau of Prisons step in & actually carry out the procedure, when a state formally asks, on a state-federal law enforcement assistance basis?

    How about a firing squad?

    Patterico (de0616)

  8. What about letting the condemned choose between lethal injection, firing squad, or any other method a state may choose to offer?

    DRJ (6dbcaa)

  9. Firing squads would be quite festive.

    David Ehrenstein (af13fc)

  10. How did the Founders kill convicted murderers?

    Hanging, generally.

    Anwyn (a130c1)

  11. Firing squads would be quite festive.

    Festive doesn’t enter into it. The State of California has provided for capital punishment for certain murderers, and a firing squad would take care of all the hand-wringing worry we currently have over the particular details of the protocols governing the administration of lethal drugs.

    Patterico (de0616)

  12. The fundamental problem with this decision is the judge actually trying to dictate the execution procedure. It is activism at its worst. He is usurping legislative and executive function and showing no deference to precedent or the prior uses and practices of the jurisdiction or of other jurisdictions. (I do wonder why the State has been so complacent in this case.)

    nk (8214ee)

  13. The Guillotine — an idea who’s time has come.

    After all, a firing squad might miss and cause the poor soul some pain as they all shoot him in the gut.

    CHOP! Right off.

    Dave Wangen (6001a6)

  14. You guys, I hope jokingly, are framing the issue the way the judge wants it framed. But it is a red herring. The State of California adopted an execution procedure which is now the standard throughout the country and much of the world. It is not up to him to reopen the legislative debate of the early eighties nor to judicially legislate “less cruel and unusual” alternatives.

    nk (8214ee)

  15. Festive doesn’t enter into it.

    Of course it does. Did you see “Paths of Glory” ? The firing squad scene was teriffic.

    David Ehrenstein (af13fc)

  16. Patterico,

    I know you are serious about your firing squad suggestion and my comments are not intended to disagree or detract from your point. However, apart from firing squads, there may be other answers to the lethal injection problems. I think States need technicians who are more proficient at starting IVs. I suspect most licensed, competent stickers balk at using their skills to end a life and/or that few States are willing to pay the going rate for this skill.

    Over the years, our children have spent months at medical centers across the country including a well-known medical center in Minnesota. Like most medical centers, this center had technicians who draw blood and start IVs but, unlike some institutions, this center trains and uses personnel who specialize in sticks and have no other duties.

    I asked several technicians (and most were in their 20’s) how hard it was to learn this skill and what kind of training they required. Its my recollection that most were trained in 3 intensive months or less. Even with problem veins, these technicians were generally successful on the first stick and, unlike our experience at other hospitals and labs, their sticks were virtually painless and rarely infiltrated. From reading news reports, it appears that many of the problems experienced with lethal injections happen because of infiltration, especially since most death row inmates are older, sick, or have a history of IV drug use. These characteristics always make for harder sticks.

    In other words, maybe there’s a low tech answer to this problem. I think the States need to establish a good Stick School that will train and certify lethal injection technicians.

    DRJ (6dbcaa)

  17. A firing squad would be quite low tech.

    Patterico (de0616)

  18. Heh.

    DRJ (6dbcaa)

  19. You folks realize that Judge Fogel actually came up with two ways for California to kill Morales back in February, right? He’s no activist judge — the State has just given him nothing to work with. Read the opinion.

    A firing squad wouldn’t do one hell of a lot of good if the gunmen had no bullets and didn’t know how to use guns. That’s about the equivalent to the scenario the judge saw in this case

    Bob (fdfaf7)

  20. I read the opinion, Bob. He has no right to come up with any way to kill Morales. That’s the job of the legislature and the governor. In my opinion, this judge is not worthy of the name.

    nk (54c569)

  21. Bob, my question to you is this: have the plaintiffs shown that anyone suffered pain in an execution?

    Have they shown — even accepting an activist reading of the Eighth Amendment — that any person in California was executed in violation of that Amendment?

    Patterico (de0616)

  22. The Eighth Amendment isn’t a one-pass free kind of thing — we can’t violate it, that’s the whole point. So if the state knows something risks a Constitutional violation, it has to stop it — whether it’s sure one happened in the past or not.

    In the good old days, we proclaimed to the world how we didn’t torture or violate the laws of war or execute POWs or anything like that. It wasn’t because our enemies didn’t torture or execute our men. It was to show that we were the moral people. This is exactly the same situation. Morales has done something hideous — but if we descend to the level of his action, we’re becoming just like him. Society’s worth is demonstrated through the consideration it shows to those over whom it has most power — POWs and inmates being the two easiest examples.

    Bob (fdfaf7)

  23. And as far as the China discussion goes, they ARE a good point of comparison — USA Today ran an article on their “death vans” a couple months ago. China has independent monitors watch their executions, and ran hundreds of tests on animals before ever lethally injecting a human. Are we less considerate to our worst members than the much-maligned Commies???

    Bob (fdfaf7)

  24. Pat’s right; the firing squad is overdue for a comeback.

    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.

    I’ve written previously about 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.

    Mike Lief (e6260e)

  25. Mike Lief,

    What an interesting article and your links regarding decapitation are both amazing and horrifying. Plus, now I’m even more angry at jihadis and what they’ve done to people like Nick Berg.

    DRJ (6dbcaa)

  26. If the requirement is that they suffer no pain, why not knock them out with a tranquiliser and then suffocate them?

    Alternatively shooting seems fine, but I don’t see much need for a squad. Surely a few bullets through the head would be fine.

    It’s difficult to believe that coming up with humane ways to kill death row convicts is that hard.

    B (e8227e)

  27. When the Eighth Amendment was written and ratified, the framers were unaware of the electric chair or the gas chamber or lethal injection, although we can assume that those learned men had read the Apology of Socrates, and were aware of the drinking of poison.

    The normal method of execution in the late eighteenth century was hanging; the framers knew of it, had risked it themselves in engaging in revolution against our mother country, and apparently did not consider it to be cruel or unusual. Hanging is clearly constitutional! Is that what the judge in question wishes to see?

    Dana (3e4784)

  28. Lethal injections and the twitching, hyperactive Eighth Amendment…

    Saturday’s WaPo reports that lethal injections as a capital punishment method are on hold in two states — California and Florida. It’s a fact-filled article with a somewhat misleading lede: Executions by lethal injection were suspended in Florida a…

    BeldarBlog (72c8fd)

  29. As I said over at Beldar’s, most executions are for capital murder. That being the case, the proper method of execution is the one used by the murderer on the victim.

    Whether or not it’s “cruel”, if the murderer himself considered the method useful and appropriate it’s fairly Jesuitical to call it “unusual”, and the Constitutional standard requires both.


    Ric Locke (6e958d)

  30. A public hanging might also be advisable. This would make for ideal television viewing. However there are aspects of the practice that ight offend certain delicate sensibilities. In “Billy Budd,” Herman Melville makes note of one.

    David Ehrenstein (af13fc)

  31. David

    The hanging of Budd by “acension” is certainly different from what was considered a proper hanging by “dropping” … which induces death swiftly via snapped neck, not slow strangulation (ie the Iranian judge who enjoyed watching the 16 year girl who mocked him be hoisted aloft by crane)

    Darleen (543cb7)

  32. Wel this raise the “enjoyability” factor, Darleen. What use are executions if they’re to be secreted away and merely reported on?

    I await Patterico’s remarks on the judge’s ruling as they may shed more light on his position on capital punishment — which is by no means a single-faceted phenomenon.

    David Ehrenstein (af13fc)

  33. I would greatly welcome the return of the firing squad. For one, the firing squad does what any good execution should do. Provide plausible denialability to any and every member of the squad, by having say, 8 members of the squad, 4 armed, and 4 firing blanks, no individual member will be capable of knowing which member(s) of the squad are responsible. This diffusion of responsibility, is the proper way to accomplish an execution. We need to be more worried about the members of the firing squad then the individual convicted to Death Row.

    Ecclesiastes 8:11 – When the sentence for a crime is not quickly carried out, the hearts of the people are filled with schemes to do wrong.

    Joel B. (955208)

  34. Executions by firing squad and hanging are not only constitutional, but have both been employed in the U.S. as recently as 1996 (a Delaware convict was hanged, and a Utah convict shot, in that year). Washington and New Hampshire still technically retain hanging as a method of execution, and Utah, Idaho, and Oklahoma still provide for firing squads.

    NYC 2L (4c4727)

  35. “Plausible deniabilty” is bad faith in action. The state wishes to kill in our name but no one wants to take direct responsibility for the killing. This it’s kept from public view (save for a few reporters and other “interested parties.”)

    Why can’t the presiding judge shoot the convicted murderer himself?

    David Ehrenstein (af13fc)

  36. How is it bad faith? The responsibility for the execution is diffuse, every member of society has enacted laws with death penalty provisions, and as such the responsibility for the execution is diffuse, and as such should be focused on no one individual. That’s hardly bad faith, that’s the way it should be. Frankly, the problem is there are far too many people who care more about the rights of the executionee, vis a vis the executioner (s). I have no qualms about caring far more about the executioner (s) than the executionee.

    Joel B. (955208)

  37. Well then why refer to “plausible deniability” re firing squads?

    David Ehrenstein (af13fc)

  38. Let’s not forget the victim, Terri Winchell, who was only 17 when Morales raped, beat and stabbed her 25 years ago, leaving her body in a secluded vineyard.

    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 Morales’ impending exit.

    Mike Lief (e6260e)

  39. That’s a perfectly reasonable thing to being up re Morales, Mr. Lief. But the death penalty wasn’t divised for that case alone. All are different. Moreover many objectiosn have been raised in recent years in light of a number of instances where person’s convicted of murder and put on Death Row were found to be innocent.

    David Ehrenstein (af13fc)

  40. I don’t quite understand your question. My point is the onus of execution should not be focused on one particular executioner, if avoidable. The firing squad does this best. When I was referring to plausible deniability, I was refrring to the member of the squad’s ability to believe that it was not his individual action that actually executed the individual.

    Joel B. (955208)

  41. “When I was referring to plausible deniability, I was refrring to the member of the squad’s ability to believe that it was not his individual action that actually executed the individual.”

    Why should he be shielded in such a fashion? I see no reason for it whatsoever.

    David Ehrenstein (af13fc)

  42. Why should he not be shielded in such a fashion? I see no reason for it whatsoever.

    I given you a reason to shield him, because he alone is not responsible for the execution. It is a societal decision. There is no reason for the onus to be on one man. There I’ve given you a reason. What’s yours?

    Joel B. (955208)

  43. Another Drew e-mails to say that I turned off my satire-detector in connection with his first comment. Perhaps. But it’s sometimes tough to detect satire from people who agree with parts of the position being satirized.

    Patterico (de0616)

  44. Yes, since both hanging and the firing squad were widespread methods of execution at the time of the founding, we can only assume that to find them un-constitutional now could only be the act of a jack-ass judge. (Look, if I seem anti-judicial in these posts, it is only in response to the absolutely horrific decisions that we get handed down from on-high).
    As an added point, I think that the removal of executions from the public-square has had a deliterious effect on public morality. We (humans) need to see the terrible side of our nature, and what happens when we succumb to that “dark side.” These are lessons in morality that are found too rarely in our “post modern” society, where all pain and suffering has been banished (aka: the Lake Woebegone Syndrome).
    As to the difussion of individual responsibility by the use of some blank ammo in the firing squad: I think that historically, that is the more the exception than the norm. I believe that throughout the history of firearms, the norm was a squad of men, available off-hand, and the use of the weapons and ammo they carried.
    I would refer you to the various execution scenes in “Breaker Morant”: An execution squad was assembled from those immediately available, using issue weapons, and issue ammo. Only in some formal executions (perhaps the final scene) was any pretext at diffusion attempted. But, to do that, the squad leader would have to personally load each weapon so that the individual rifleman would not know if there was a live-round, or a blank, in his chamber.
    Also, in many militaries, it was the duty of the officer-in-charge, after the firing of the squad, to take his pistol, and put a round in the head of the condemned at close-range, to ensure his death. Whether that enhanced, or deminished the diffusion of individual responsibility is debateable.
    Lastly, this (as has been noted before) is another intrusion of the Judiciary into the prerogitive of the Legislature and the Executive. As we progress down that road of good intentions to Hell, we shall surely look back to decry the role of an activist judiciary in paving that path. A pox on all of them!

    Another Drew (8018ee)

  45. California’s lethal injection protocol is worse than unconstitutional, it’s unbelievably stupid. Just shoot him in the head with a 25 cent bullet. Either execute him or don’t execute him. Geez.

    Wesson (c20d28)

  46. Aw, for crying out loud. Since the method of execution is where this thread is going: There are people getting their hearts and lungs ripped out of their bodies and new ones sewn in, right now, under general anesthesia and immobilization with pancuronium. If the skag does not want to feel anything, he can stand still for a pre-execution sedative of diazepam and morphine. Or he can breathe in, through a mask, one of several inhalable anesthetics. This judge is so disingenuously FOS that if he were given an enema he would shrink to the size of a pea.

    nk (bfc26a)

  47. It’s just the ACLU’s effort to take away any moral, or religious-based laws. It also helps liberal lawyers stay employed. I don’t know how far they can go with it until vigilante groups and friends of the victims will be forced to execute the murderers. Maybe that’s the ultimate goal. Anarchy, then Big Brother/Big Sis can take control.

    Mick Gregory (846533)

  48. light of a number of instances where person’s convicted of murder and put on Death Row were found to be innocent.

    And there are any number of instances where DNA evidence has confirmed the convictions.

    Darleen (543cb7)

  49. Just another comment — as far as the relevance of what the founders thought, it’s low. The Eighth Amendment is founded on “evolving standards of decency” — just like Florida thought the electric chair was fine until it watched two inmates in a row catch on fire, now the California judge has seen that what he thought was a great method of execution (and he repeatedly says in his opinion that lethal injection CAN work) proven to be carried out by felons, dullards, and fools. Theory and practice can be far apart some times — let’s not lose sight of the fact that this opinion is based on the practice in California, as proven over 10 months of fact-finding — NOT one judge’s opinion

    Bob (fdfaf7)

  50. Innocents Executed: This thread is almost the exclusive property of the CP-USA, and their dupes. They have been flogging this dead horse ever since the Rosenberg executions. Unfortunately, they never foresaw the dissolution of the Soviet Union, and the opening of the KGB/GRU files to researchers, plus the de-classification of our own intercepts that definitively proved that the Rosenbergs committed acts of espionage against the United States.
    I have yet to see proof submitted to a court of law, and upheld by that court, that someone who was executed for a crime, was innocent of that crime. Have men and/or women on death row been exonerated by DNA or other evidence? Yes! Have they been executed? What are the names/cases? I believe that every sentence to death by a court should be accompanied by a full DNA examination of the evidence in that trial; with the final sentancing subject to the DNA results. That should put an end to this travesty.
    As Darleen notes, most later DNA exams confirm the guilt of the defendant, not his innocence.
    “Professional Stickers”: These people need extensive training? The prisons are full of junkies who can find a vein. What great skill is involved? We have surgeons who can operated for hours on a patient without any pain, and we can’t kill a Sirhan Sirhan? What a country!

    Another Drew (8018ee)

  51. There is no reason for the onus to be on one man.

    Ah so there’s an onus!

    And there are any number of instances where DNA evidence has confirmed the convictions.
    And there are any number of instances where DNA evidence has confirmed the convictions.

    Your point?

    David Ehrenstein (af13fc)

  52. […] As I said yesterday, I am not impressed by the decision. In my judgment, the judge is stretching to find a constitutional violation where none has been proved. […]

    Patterico’s Pontifications » An Analysis of Judge Fogel’s “Memorandum of Intended Decision” Regarding California’s Lethal Injection Protocol (421107)

  53. In response to Bob, # 49:

    Just another comment — as far as the relevance of what the founders thought, it’s low. The Eighth Amendment is founded on “evolving standards of decency”…

    Bob, the Eighth Amendment was not “founded” on evolving standards of decency. Those words are nowhere to be found in the Eighth Amendment, which reads, in its entirety, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The phrase “evolving standards of decency” was unknown in Eighth Amendment jurisprudence until 1958, when, in Trop v. Dulles, four members of the Supreme Court (not even a majority!) decided that it would apply.

    Argue for or against the death penalty, and argue for or against the correctness of this judge’s opinion, but don’t confuse the original understanding of the bill of rights with its mid-twentieth century interpretation.

    NYC 2L (4c4727)

  54. Evolving standards of decency: a cute phrase for allowing judges to have the constitution say what they want it to mean, rather than what the framers of the Constitution meant and the people supported when it was ratified.

    I am opposed to capital punishment, but believe that the elimination of capital punishment must come from the people of our democracy, acting through their elected representatives. To have judges assume such power is to surrender democracy.

    Dana (556f76)

  55. Lets just close the 9th curcut court and return to fronteer justice a noose around the neck

    krazy kagu (d0aa80)

  56. As I’ve posted before, a high-velocity, large-caliber round to the head solves all these pesky pain problems. I guarantee you they’ll feel nothing with their brains scattered across the wall.

    A bit gruesome, perhaps, but it does the job just fine.

    By the way, what part of the 8th Amendment guarantees punishement without any pain?

    Kevin Murphy (0b2493)

  57. “There is no reason for the onus to be on one man.”

    -Joel B.

    By your reasoning, there need be no “onus” at all. If capital punishment is just, then those who carry it out need feel no guilt at their actions.

    By saying that it is necessary to absolve an executioner of guilt, you are inadvertently admitting that he has something to be guilty about in the first place.

    As usual, kagu’s comments perpetually prove his childish stupidity.

    As unusual, Kevin Murphy’s comments demonstrate a self-righteous machismo usually reserved for John Wayne characters. “Just blow their brains out”…yeah. That shows general maturity.

    Leviticus (e9b0e6)

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