Lethal Injection Argument: Kentucky Will Win — But How Big Will the Victory Be?
You can listen to yesterday’s arguments on lethal injection here. The transcript is here. (Transcript via Howard; audio via Howard as well.)
I listened to it all and then read Dahlia Lithwick’s piece — and if you can get past the editorializing (which she’s of course entitled to do) it’s a very, very good description of the argument. You get a good sense of what is going on in the blow-by-blow interaction between the justices and lawyers if you read her article carefully.
Bottom line: it’s crystal clear that Kentucky is going to win. Crystal clear. There’s really only one issue: what will be the scope of the opinion?
Justice Stevens wants it to be narrow, and propounds the key question: “Do you think the constitutionality of the three-drug protocol itself is at issue in this case or merely the question whether Kentucky has done an adequate job of using that protocol?” The lawyer responds only the latter. Justice Stevens remarks that “the record is very persuasive in your favor, I have to acknowledge” (he hates to acknowledge it, but he has to) but wants to leave open the possibility that the administration of the protocol in other places across the nation might be wanting.
Justice Scalia clearly wants to forestall more litigation: he wants the Court can declare the three-drug protocol constitutional without worrying about comparisons to a one-drug protocol — the protocol used to put animals to sleep. Justice Scalia is concerned about setting a standard that says one method is unconstitutional if there is another method that is less painful — because lawyers for death-row inmates can always claim there is another better and less painful protocol. He likes the argument of the government that says “so long as the only risk comes from negligent application of the protocol, no comparison is required” with other possibly less painful methods.
How sweeping will the decision be? Only time will tell.
But Kentucky will win. That’s a foregone conclusion.
Thanks for summarizing the reasoning so succinctly, Patterico, for those of not inclined to do the same amount of research on the topic. You explained that very well and I think Scalia is on the right track; I’m relieved Kentucky’s position will carry the day, in your estimation.
Christoph (92b8f7) — 1/8/2008 @ 12:35 am“Lethal Injection Argument: Kentucky Will Win — But How Big Will the Victory Be?”
Patterico, I agree that the Court is likely to find that the specific means of death in his case is Constitutional.
But, what would you consider to be a “Big Victory” in this future decision? If the Court says that the Kentucky protocol at issue just barely meets the standards preventing cruel and unusual punishment, will you be disappointed? Will that be only a small victory?
What do you think a “Big Victory” will be? One that gives the State the greatest possible latitude arguable under the Constitution to make sure the condemned not only dies but does so under painful and humiliating circumstances?
I don’t mean to broach the bigger question of whether or not free people should grant a government the power to kill persons in the custody of the government. That has already been decided to be Constitutional.
I’m simply wondering, when you ask the question “how big will the victory be,” how big do you hope it will be? How big do you want it, and when does it become too much? Painful deadly chemicals coursing through the system seem to be on your list of big victories. If the Court goes beyond that and states that burning at the stake is Constitutional, will you call that a big victory? Is drawing and quartering a huge victory to you? What exactly do you hope happens with this decision? Are you hoping that the Court draws a clear line, or do you want it to keep the far edge of cruel and unusual open for future cases to decide?
Aplomb (3b4ca2) — 1/8/2008 @ 1:34 amGod bless capital punishment.
Christoph (92b8f7) — 1/8/2008 @ 2:52 amIn most states, the condemned have the opportunity to choose lethal injection, electrocution or the gas chamber. Most want lethal injection. Perhaps Kentucky should just take that off the table and replace it with hanging or the firing squad.
Personally, I do not see that a murderer has a right to a painless execution, when most of their victims did not have that right. There needs to be a measure of retribution in capital cases.
My cousin, his wife and ten year old son were murdered in an open and shut case in 1980. Their murderer’s execution did not happen until 2005. If we want to improve the system, let’s make the appeals process faster and eliminate all the political legal obstruction.
arch (4ad6bd) — 1/8/2008 @ 4:59 amDebra Saunders has a column in today’s Chronicle about this case:
Justice Antonin Scalia seemed to get it when he commented, “This is an execution, not surgery.” As the Washington Post reported, Scalia also asked where the Constitution says that “in the execution of a person, who has been convicted of killing people, we must choose the least painful method possible?”
aunursa (090908) — 1/8/2008 @ 6:32 amThere were so many elephants in the room, there was hardly space for the Court. For one, both Baze and Bowling, having been sentenced before 1998, had the option to choose death by electrocution under Kentucky’s statute. What happened to “standing” in this case? I wonder how many Justices will vote to dismiss the writ as improvidently granted.
nk (4bb3c1) — 1/8/2008 @ 6:34 amYou’re right — the Lithwick piece was very good, even the editorializing. And I’m a supporter of capital punishment. There’s a lot of official BS on both sides of the argument, which is why Scalia’s comment about execution, not surgery, sounds so shocking. It’s an execution, dammit. We can’t be barbaric about it, but it’s an execution.
Attila (Pillage Idiot) (96a8a6) — 1/8/2008 @ 6:48 amI constantly wonder whether the death penalty really amounts to the easy way out for these monsters. Question to arch: in the case of your cousin and his family, would you not rather have seen the murderer spend the rest of his days in solitary confinement to rot in a cell, alone, deprived of all rights? It seems that would be the worst punishment.
gpm (b80551) — 1/8/2008 @ 6:53 amSpeaking for myself, and not for arch, but I’d rather I’d be allowed to pull the switch myself…
Scott Jacobs (425810) — 1/8/2008 @ 6:57 amSorry, but I find all arguments that LI executions are painful b.s.
tired (6a7a53) — 1/8/2008 @ 7:10 amI can’t speak for arch either, but I want to make sure such murderers never kill again.
Yesterday we had noted an actual case where Ehrlich Anthony Coker was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment. Each judgment specified that the sentences it imposed were to run consecutively, rather than concurrently. He later escaped and raped again. In some cases imprisonment is not enough. And if a death-penalty is commuted to life-sentence, then there’ll be plenty of people who will turn around and agitate for that to be reduced.
LarryD (feb78b) — 1/8/2008 @ 7:32 amYep. Next on the hit list is lwop.
tired (6a7a53) — 1/8/2008 @ 7:36 amAplomb,
I think a good decision would say that an execution protocol is not unconstitutional unless the protocol, if reasonably followed, is substantially likely to result in a wanton infliction of severe pain. The fact that less risky/painful procedures may exist should be declared irrelevant unless this standard is first met.
Patterico (dc444c) — 1/8/2008 @ 7:54 amI can’t help but find it ironic that one justification for executions is, as #11 puts it, to “make sure the killer never kills again.”
So, we’re willing to risk killing innocent people ourselves, through a wrongful conviction, just to make sure “the killer doesn’t kill again?”
Of course, with the ever-present risk of executing the wrong person, the death penalty really doesn’t make sure that killers won’t kill again. It just makes sure that someone else dies in addition to the original victim.
And another death is what the death-penalty proponents really want — not justice or safety. The death penalty only creates the opposite of safety and justice, but they want it anyway. Nothing else will quench their thirst.
Phil (6d9f2f) — 1/8/2008 @ 8:02 amspeaking for myself and not arch, i’d want to stake him to an anthill in the hot desert sun with honey smeared on his genitals.
assistant devil's advocate (1e0d99) — 1/8/2008 @ 8:08 amThat risk is not ever-present, and in those instances where it is present, I don’t support the use of the DP (Troy Davis comes to mind). That said, there are plentiful cases where there is no doubt that the condemned is the killer. In such cases the death penalty most definitely assures that the killer will not kill again. Because he’ll be dead.
Pablo (99243e) — 1/8/2008 @ 8:16 amI would prefer the decision to be something like “Death is often painful. Any method of execution that is not intended to inflict pain as additional punishment is constitutional.”
But apparently we decided, somewhere along the line, that states needed to avoid incidental pain. Why is that? Why is hanging or a firing squad “cruel and unusual”? Seems to be neither (although I’ll accept that the electric chair is both, not to mention gruesome).
Kevin Murphy (0b2493) — 1/8/2008 @ 8:18 amYep. Next on the hit list is lwop.
The European Union is already there and maybe beyond. The death penalty has been abolished in all EU countries for about twenty years now, and recently the EU Court ruled that sentences that give no hope to the prisoner that he will ever be free reflect a desire for retribution, and not deterrence or rehabilitation, and therefore are in violation of the EU constitution.
nk (4bb3c1) — 1/8/2008 @ 8:23 amAplomb, are you at all familiar with the 3 drug protocol? The first drug administered is Sodium thiopental which is neither painful nor deadly. On the contrary, it’s a short acting general anaesthetic, used to take the possibility of pain out of the process. Properly administered, it’s very effective. Its use is a testament to our collective humanity.
Are you at all serious or just demagoguing?
Pablo (99243e) — 1/8/2008 @ 8:24 amPablo, that risk is ever-present in any death penalty policy. While I agree that one can convince oneself that in a particular situation the risk does not exist, I have yet to see any death penalty policy that effectively applied the death penalty only in cases where guilt was absolutely uncontroverted.
I would agree that the benefit of being “certain the killer would not kill again” exists in theory. I have yet to see a death penalty policy that actually makes that benefit a reality.
In fact, it seems that part of the purpose of killing an accused is so that they can’t later prove their innocence — one of the major complaints about the death penalty is that it takes so long because of all the appeals. “Why can’t we just kill them?”
At any rate, while it does exist, the marginal increased benefit of killing the killer vs. simply incarcerating the killer for life is rather small. Those who actually claim to be motivated by “making sure the killer won’t kill again” are making a dubious-at-best argument. Once again, the real motivation appears to be to simply kill someone.
Phil (6d9f2f) — 1/8/2008 @ 8:33 amPhil – Can you provide a list of innocent people that have been executed? If not, your concerns seems to be misplaced.
daleyrocks (906622) — 1/8/2008 @ 8:40 amThanks for not speaking for me. You make some excellent points and I understand your feelings, but personally, I favor execution. Here’s why:
The murder itself was brutal beyond belief. Paul was bludgeoned to death over an antique corvette while his wife and son watched. His wife, knowing she and her child were next, asked to go to the bathroom where she wrote the killers’ names in eyebrow pencil under the lid of the clothes hamper. They took her and her boy to a field, where they had already dug a hole. From her injuries, it was obvious the pair beat her son to death while she was trying to shield him. Then, they bludgeoned her. How must she have felt? How much pain did she endure?
There was zero doubt about guilt. The police arrested one of the men trying to sell the stolen car and the other in a motel nearby. Bloody clothing was found in their houses. A pair of blood stained boots matched foot prints in Paul’s living room. One of the two pleaded guilty in exchange for a life sentence without parole.
When a criminal commits murder, he doesn’t just kill the people he murdered. My uncle, a highly successful, multi-millionaire businessman, stopped going to work. He sat in his chair on the sun porch for days at a time without speaking. His wife Rose, who found the bloody crime scene at her youngest son’s house, was never right again. Paul’s siblings suffered through the trial and a seemingly endless series of frivolous appeals. Paul’s parents and his wife’s mother died before Will Peoples was executed.
The criminal justice system is not a game. Why should we allow the brutal killer of a ten year old boy to live another 25 years? These criminals are far beyond sympathy.
arch (4ad6bd) — 1/8/2008 @ 8:43 amAdding to daleyrocks: can any death penalty opponents show that no innocent man was ever convicted and subsequently died in prison?
The fact is, the possibility of irreversible error exists no matter what punishment is chosen. Why should we be willing to accept the possibiilty of irreversible error in life imprisonment but not accept it in the death penalty?
I’m all for a long appeals process to catch any errors that might have been made. I’m all for doing all humanly possible to insure that we don’t execute the wrong person. But to say that the death penalty must be absolutely perfect when we accept lethal imperfection from other penalties is wrong-headed.
Steverino (e00589) — 1/8/2008 @ 8:50 amJohn Evander Couey. Richard Allen Davis. John Wayne Gacy. Michael Allen Durocher. Richard Trenton Chase. Ted Bundy. Timothy McVeigh.
Please, tell us how guilt in these cases is anything less than absolutely certain.
Please, tell us how a dead man might rise to kill again. In theory.
Are you feeling OK, Phil? It sounds like you might be running a fever(ed imagination).
Please state the basis on which you’ve decided that appearance exists. please tell us how you’ve determined that the desire is simply to kill someone (anyone?), guilt or innocence of the condemned notwithstanding. Please, for instance, tell me how and why you think Mark Klass just wants somebody to die without any concern whether it’s the man who raped and murdered his daughter. Ditto Mark Lunsford.
Pablo (99243e) — 1/8/2008 @ 8:51 amWell, in theory, there’s always zombies and other forms of the undead… 🙂
Scott Jacobs (425810) — 1/8/2008 @ 9:05 amPlease, tell us how a dead man might rise to kill again. In theory.
In Chicago they seem to do it around the time of every election, moreso if an election is tight. I’m not sure how it works though, because as AJL is fond of pointing out, there is no such thing as in person voter fraud.
daleyrocks (906622) — 1/8/2008 @ 9:16 amIn fact, it seems that part of the purpose of killing an accused is so that they can’t later prove their innocence . . .
Poster boy for this was Roger Coleman . . . oops! Coleman had a prior brutal sex conviction, means, opportunity, motive, a hell of a lot of circumstantial evidence, a polygraph, and a dna test. His supporters always forgot to mention there was dna evidence against him. They wanted a more sophisticated dna test decades after his execution. Well, guess what happened.
tired (6a7a53) — 1/8/2008 @ 9:20 amPablo, read again the words “death penalty policy.” I’m not talking about a specific instance of application of a policy. By that logic, I could defend a policy of executing ALL lawbreakers based on the fact that Timothy McVeigh et all would be executed under such a policy.
Phil (6d9f2f) — 1/8/2008 @ 10:25 amBut Phil…
If you’re going to talk using only assumptions and generalities, you should at least have a couple of facts to fall back on.
Scott Jacobs (425810) — 1/8/2008 @ 10:32 amPablo, Mark Lunsford is a bit of a sicko. Not the best example, I’m afraid. But of course that case obviously warrants the death penalty.
And many other cases obviously warrant the death penalty. It’s perfect justice for that certain type of criminal for whom there’s no conceivable way he did not commit a horrible act.
Unfortunately, mistakes are made. People get framed for awful crimes. Children recant accusations. Cops screw up and lie about it, for example with DNA evidence. This stuff is all rare, but it definitely occurs. Sadly, it occurs to those who generally are the least prepared to fight it. We’ve learned that DNA analysis is often extremely flawed, and that a significant number of convicted rapists and murderers are innocent. It’s practically a weekly story.
The Death Penalty is perfect justice. We do not have the perfect justice system. Particularly, criminals generally have poor legal representation. Therefore we really shouldn’t mess around with it. It’s extremely expensive and slow, by the way, and I think we’d be wiser to spend those resources on quantity of convictions.
The problem with my argument is that we need something that is worse than life without parole, much worse, to bargain confessions out of criminals, who are often cowards who take the easy way out instead of fight. The death penalty’s #1 value is that it gets murderers to behind bars instead of walking free. I think one great punishment might be hard labor prisons that are made infamously unpleasant. Perhaps that’s not good enough.
Still, we know for a fact that we are executing innocent people. Anyone who challenges that assertion is not taking this matter seriously. A legitimate justice system is based on protecting the innocent. If we ever have the technology to read minds and determine guilt scientifically, I hope that puts criminal lawyers out of business. I’d be happy to do away with criminal procedure entirely and execute every single murderer, even painfully, if I knew these convictions were legit.
Jem (9e390b) — 1/8/2008 @ 10:36 amJem,
If we know it for a fact, name some.
Scott Jacobs (425810) — 1/8/2008 @ 10:40 amOK, then. Please tell us about a death penalty policy that effectively applied the death penalty only in cases where guilt was absolutely uncontroverted. Perhaps, once you’ve managed to unscrew the sentence, you can start with listing the innocent executed in each of the states that have the DP, as well as the federal government and the military.
Jem, does Lunsofrd want anyone but Couey executed for for doing anything other than raping and murdering Jessica Lunsford? And yes, please, name the innocents we’re executing.
Pablo (99243e) — 1/8/2008 @ 10:53 amI think there are many anti-dp lawyers who should be executed with their guilty clients. Some of the crap they throw against the legal wall to see what sticks is further crimes against the victims. I think there should be a 10 limit to appeals, then that is it. And, in my opinion, 10 years is too much extra time for some of these killers.
PCD (5c49b0) — 1/8/2008 @ 10:55 amJustice is depicted as blindfolded. One hand holds a scale. The other hand holds a sword. Sometimes, Justice has to swing the sword.
Techie (ed20d9) — 1/8/2008 @ 11:28 amIt has never been proven that an innocent man was executed in this country. So your assertion has no evidence to support it, and can be challenged by anyone who takes this matter seriously.
Steverino (e00589) — 1/8/2008 @ 11:59 amIf these jerks dont want to be sitting on death row then they shouldnt have commited the murder so why should they be whinning?
krazy kagu (9b4d22) — 1/8/2008 @ 12:26 pmIn my cousin’s case an appeal was filed because Paul’s family was financially able to hire a private attorney and an investigator to support the state. Nothing was done wrong by these private firms, in fact, part of their job was to ensure that no mistakes were made that might result in dismissal or a retrial. The pro bono NY City law firm actually boasted about this baseless defense appeal.
BTW, in this Alabama case there was no racial difference. Victims and defendant were all white.
arch (4ad6bd) — 1/8/2008 @ 2:13 pmZig or zag?
On the zag side, Roberts seems to like to find a twig upon which to base a not-so-sweeping, yet sweeping opinion. Zag (Kentucky) wins.
However, the notion that it’s “obvious” that Kentucky will win, makes me want to zig instead of zag. This is a product of my high school track team’s mile relay: each leg was great for 330 yds, but died in the stretch. I think that Kentucky will “lose”, ie, it will be sent back to the lower court for more hand-wringing. And thumb-twiddling.
It’s beyond me to hope for anything more.
Viktor (6c107f) — 1/8/2008 @ 6:03 pmWe should kill them with black powder muskets. Give them the option for a blindfold and a smoke.
If it wasn’t “cruel and unusual” 225 years ago, then it sure as hell isn’t so now.
The fact that we have turned into a bunch of snivilling wussies matters not.
martin (1db7ea) — 1/8/2008 @ 6:17 pmWould someone please explain this to me? I realized that I am not as smart as some here, but I fail to see how killing the people who committed violent crimes deemed worthy of the death penalty could do other than enhance the safety of the community. The criminal is now removed from the community permanently so can no longer pose a threat to the safety and security of that community. And the idea that it is somehow not “just” to punish a criminal for their crimes against society baffles me. So, can someone point me to a resource that can clearly explain the position quoted above?
Jay Curtis (8f6541) — 1/8/2008 @ 7:20 pmJay Curtis…
Another Drew (8018ee) — 1/8/2008 @ 7:33 pmDon’t hold your breath.
It is a non-sensical argument that is very difficult, if not impossible, to justify in an honest, intellectual manner.
As Dennis Prager would say, only a university educated person could attempt to make such a leap from common sense.
Phil,
Some people say that the death penalty does not deter murder. I believe that that is true if there aren’t executions. Engram has put together a number of charts that show that around 40 executions a year actually deters murder by up to 2,100 a year! I think that’s a big benefit for killing the killer. Many people seem to be worried about the mythical innocent person who might be executed. I’m willing to live with that risk if it means 2,100 less murders a year.
Engram is a professor at a research university, a registered Democrat and has a number of interesting posts on the death penalty.
Tanny O'Haley (54659c) — 1/8/2008 @ 8:05 pmThere have been a number of studies released this past year that confirm that the death penalty does at as a deterrence. Several of these studies were conducted by, gasp, liberal think tanks. However, deterrence is not my primary concern.
It is just, that a man who knows how to kill should learn how to die. — Charlemagne.
tired (6a7a53) — 1/8/2008 @ 8:51 pmThere is much discussion above of the “innocent” receiving the death penalty. However, I would like to point out, that in order to be convicted and sentenced to death, they must first be a suspect. In order to be a suspect, there must be a reason for that individual to be a suspect, such as prior behavior, prior convictions, etc. While not saying it never happened, it is extremely rare that a “truly innocent” individual became a suspect much less executed.
joe - dallas (138e46) — 1/9/2008 @ 6:19 amPut it this way: Even if 100% assured that the condemned is guilty of the heinous crime they are convicted of, the anti-dp proponents don’t give a damn. This entire “we may execute an innocent man” is a ruse.
tired (b7e74a) — 1/9/2008 @ 6:22 amPhil’s been awfully quiet…I guess he’s conceding the argument.
Steverino (af57bc) — 1/9/2008 @ 6:34 pm