Have the anti-death penalty folks been hung by their own petard?

For my money, the Fault Lines section of Mimesis Law provides some of the most hard-hitting commentary on the legal issues of the day available on this medium. I check it daily.

While I cannot comment on death penalty issues because I have three death penalty cases, there is noting improper in my highlighting fascinating and well-written articles on the subject. It is in that vein that urge you to read Tamara Tabo’s provocative article entitled Alito’s payback in the “Guerilla War” over executions, Mimesis Law (June 1, 2015).

The essential thrust of the article, at least as I read it, is this: The anti-death penalty machine has made execution drugs that minimize pain hard to get and Justice Alito and some of his colleagues are fed up with the strategy of “having your cake and eating it too.”

Ms. Tabo writes:

At oral arguments for Glossip, Justice Samuel Alito posed what I considered at the time to be the decisive question.

Now, this Court has held that the death penalty is constitutional. It’s controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They’re free to ask this Court to overrule the death penalty.

But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain? And so the States are reduced to using drugs like this one which give rise to disputes about whether, in fact, every possibility of pain is eliminated.

In Justice Alito’s majority opinion in Glossip, Alito answered his own question. By insisting that the inmates bore the burden of providing an alternative to midazolam, the Court forced onto anti-death penalty abolitionists the consequences of guerrilla war. In war, there are casualties. In war, there is collateral damage. In war, there are strategies that backfire.

In short, an anti-death penalty lawyer will not be permitted to whine about the pain his or her killer might suffer when lashed to a gurney and snuffed given the real world fact that death penalty opponents actively participated in an effort to eliminate the availability of drugs that would eliminate pain.

Here is the opinion in Glossip v. Gross. I particularly direct your attention to slip op. pages 4 through 6 of Justice Alito’s majority opinion. Among other things, the Justice observes that “a practical obstacle soon emerged, as anti-death-penalty advocates pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences.”

The Justice then wrote:

Our first ground for affirmance is based on petitioners’ failure to satisfy their burden of establishing that any risk of harm was substantial when compared to a known and
available alternative method of execution. In their amended complaint, petitioners proffered that the State could use sodium thiopental as part of a single-drug protocol. They have since suggested that it might also be constitutional for Oklahoma to use pentobarbital. But the District Court found that both sodium thiopental and pentobarbital are now unavailable to Oklahoma’s Department of Corrections. The Court of Appeals affirmed that finding, and it is not clearly erroneous. On the contrary, the record shows that Oklahoma has been unable to procure those drugs despite a good-faith effort to do so.

Petitioners do not seriously contest this factual finding, and they have not identified any available drug or drugs that could be used in place of those that Oklahoma is now unable to obtain. Nor have they shown a risk of pain so great that other acceptable, available methods must be used. Instead, they argue that they need not identify a known and available method of execution that presents less risk. But this argument is inconsistent with the controlling opinion in Baze, 553 U. S., at 61, which imposed a requirement that the Court now follows.

Id. at slip op. pp. 13-14.

What’s your take on Ms. Tabo’s point that the anti-death penalty folks have been hung by their own petard?

Credit: "Petardsketch2" by unknown, possibly Italian - Library of Congress. The drawing depicts a petard, from a seventeenth-century manuscript of military designs.

Credit: “Petardsketch2” by unknown, possibly Italian – Library of Congress. The drawing depicts a petard from a seventeenth-century manuscript of military designs.



32 responses

  1. Nothing directly on Ms Tabo’s argument, but a historically current note. There was a time when many executions were carried out by firing squad. Then there was a move toward more humane means of execution, of which drugs were a major part. Now, with the difficulty of getting otherwise readily available drugs when the purpose is to use them for execution, at least one state is looking into firing squads as the new (old) means of execution.

    Eric Hines

  2. Mr. Hines (it is, Mr., yes?) comment is interesting. In Utah, which for many years permitted the condemned to choose between a firing squad or hanging, almost all of those faced with that awful choice opted for the firing squad, even though hanging is much less likely to involve substantial or extended pain (at least as far as we know). There is something dignified about a firing squad that is missing from going up the long ladder and down the short rope.

    I was struck by this in Glossip: The first line of the court’s summary is, “Because the death penalty is constitutional, there must be a constitutional means of carrying it out.” Huh? That’s bass-ackwards.

    I am no expert in death-penalty law; I’ve never had the courage to represent someone who has faced the possibility of execution. That being said, I agree with Justice Breyer that the death penalty almost certainly violates the constitution. The Eighth Amendment is the most obvious source of that conclusion, but the shortcomings of the process also likely violate the Due Process Clause. To me, the greatest cruelty is likely not the execution itself, but lies in telling the condemned the date and hour of his death. That is a burden that few if any murderers visit on their victims. How many of us dread the possibility of sitting down and having a doctor tell us that we have a fatal disease (other than life itself), and that we shall expire in six months, a year or whatever? And even in those cases, we can tell ourselves that we’ll beat the odds, or that perhaps medicine will come up with a new treatment before we leave this mortal coil. Sometimes, that even happens.

    In saying this, I acknowledge that there are cases in which I would gladly pull the switch. But that is my personal feeling, and should not represent what society does. Individually, we may be prepared to get down to the level of the killer, but we as a people do not need to show that we can be as cruel as the worst of us.

  3. I had thought the news coverage of the oral argument made clear the majorities’ position on this issue. I think that Freud would be a better source for understanding Alito’s views, he, Thomas, and Scalia skate close to perversion in their delight in the death penalty .

  4. The military hasn’t executed anyone since the early ’60s; although six are currently sitting on the military’s death row awaiting execution by…drugs.

    Most of the executions actually done were by hanging; although there were a dozen firing squad executions in the end game of WWII, or very shortly thereafter.

    Or so Wikipedia says.

    Eric Hines

  5. The plurality opinion in Baze and to some extent the evolving standard of decency both set up the inevitable conclusion that inmates who object to the current execution protocol in their state must propose an alternative protocol.

    Baze talks about a substantial risk of unnecessary pain. (I might have that inverted). The unnecessary part requires determining what is necessary to carry out the execution. If the current method is the less painful available, then any pain in the process is necessary to the execution as is any risk of pain.

    Assuming that the evolving standard of decency permits execution, the restriction on certain methods of execution flows from the existence of a more decent mode of execution. If the proposed mode of execution is the most decent available, then it is not unconstitutional.

    The burden is now on the opponents of capital punishment. If the inmates (through counsel) are merely opposing the means of execution (which in reality they are not), then they get to propose how they would prefer to be executed. If the challenges to lethal injection are a mere stalking horse for challenges to the sentence itself, the inmates (and their counsels) now have a clear direction to move to the main issue.

  6. If the opponents of particular means of execution are really trying to bring down the whole rickety death-penalty structure, they are in that respect similar (thought I suspect it’s not a comparison they will like) to those in Texas and other states who proclaim loudly that they want to make abortions safer by forcing doctors performing them to have admitting privileges at nearby hospitals, and for clinics to have follow the same requirements as out-patient surgery centers that do procedures that are far more complex and dangerous.

  7. It is “Mr;” it’s Eric, not Erica. Oh, wait, you were asking after titles [/smartass]. I’m unlettered beyond a scattering of Master’s degrees; “Mr” is fine. So is “Eric.” Golly, I’ve even been addressed as “right-wing extremist.”

    …the death penalty almost certainly violates the constitution. … To me, the greatest cruelty is likely not the execution itself, but lies in telling the condemned the date and hour of his death.

    But isn’t cruel a societal thing? And how to get around the cruelty of knowing the hour? (I disagree with that as cruel, by the way. Certainly, the shock of the learning is present, but then there is the peace that comes both from the certainty, the recognition that now is the time to get one’s affairs in order, and the having done that or made substantial progress in it. Or so I saw with my grandmothers, both of whom knew the time frames of their dying from the diagnoses of their cancers. That’s not going to be universal, but neither is the permanence of the fear of knowing the hour.)

    How to get around the knowing of the hour? “You’ll know when we’re going to execute you from the poison in your meal that you’ve just eaten?” “You’ll know the hour from the somnolence you suddenly feel from the injection?”

    To me, the cruelty lies in the time spent on death row through years of appeals. And I don’t have a good answer to that either, beyond requiring both the government and the defense to batch up their appeal points as best they can and present them all at once rather than stringing them out one by one.

    But there’s that “as best they can….”

    Certainly we don’t need to stoop to the criminal’s level, but some folks need to die. We achieve the not stooping by not executing in the same manner in which the executee carried out his capital crime: we’re at pains to be as humane as possible in our own killing.

    Eric Hines

  8. I find Tabo’s point entirely unconvincing to the extent that the shortage of the required drugs is a product of anti-death penalty nations (mostly European) refusing to provide the drugs (see http://www.vox.com/2015/3/27/8301357/death-penalty-lethal-injection). Surely the American guerrilla warriors should not be made to suffer for a strategy over which they have no control (even if they agree with the actions these nations are taking). That is, they are being hoisted on someone else’s petard.

  9. Actually, Stalin’s secret police answered your question. They would take the prisoner out of his cell with no explanation, on the way to interrogation or to another cell, and shoot him in the back of the head while walking down the corridor.

    When the French used the guillotine (at least after the last public execution in, I think, 1939), although the condemned knew the day of execution, they would try to reduce the brutality by having a group of guards burst into his cell in the early hours, when he was asleep or at least groggy, bind his hands with wire (the pain was supposed to distract from what was about to happen), hustle him to the guillotine, push him down violently, and pull the cord to release the blade as soon as the retainer above his neck was in place. That never sounded very humane to me, but how could it be?

  10. What is to stop Texas from making its own drugs? I mean, it’s not like it doesn’t have a $200 bn budget to work with.

    False dilemma.

  11. What I don’t get is the following: if electrocution, hanging, and firing squad do not violate the prohibition against cruel and unusual punishment, why would lethal injection with the alternative drugs being used violate the Eighth Amendment? I can’t believe that these drugs cause pain worse than being (a) fricasseed by high voltage electricity; (b) having ones neck snapped; and (c) shot by a high velocity bullet. I can’t imagine the gas chamber is a better alternative, yet that has not been ruled to violate the Eight Amendment. Honestly, some of these appeals taken by the Supreme Court just serve to waste time and paper.

  12. Ah, the knowledge. In “Reflections on the Guillotine,” Camus wrote,

    “What then is capital punishment but the most premeditated of murders, to which no criminal’s deed, however calculated it may be, can be compared? For there to be an equivalence, the death penalty would have to punish a criminal, who had warned his victim of the date at which he would inflict a horrible death on him, and who from that moment onward had confined him at his mercy for months. Such a monster is not encountered in private life.”

    I’ve quoted that passage several times in my blog. Then added something like this:

    Camus’s probably wrong about who you might meet in private life. I’ve had clients (capital and non) and know of others (capital and non) who did things that would curl your toenails. But it’s not supposed to be a sadism contest. We say we’re better than that.

  13. Tabo is right in the narrow sense that

    (1) abolitionists have cheered (and capital lawyers have certainly taken advantage of) Hospira’s and Lundebeck’s and the European Union’s (and Italy’s in particular) and the compounding pharmacist’s complicating the process of getting suitable drugs; and
    (2) Alito managed to convince four of his brethren (but none of his sistren, and not Breyer) that there not only needs to be a constitutional way of killing but that those about to be killed who complain that the government will be torturing them to death must give the gov a readily available way that they’d be happy to be killed. The proposition is absurd on its face, but since the law is whatever 5 of them say it is, there you have it.

    There are five votes on the Supreme Court for killing the folks on the row. They’ve pretty clearly said that they don’t care how.

    It’s perhaps telling that Ohio, which has a statute that actually requires execution by lethal injection to be effected “quickly and painlessly” (last time I checked, no other state had a comparable requirement, though Kansas required executions to be “humane”) also says that if quick and painless lethal injection is ever ruled unconstitutional, the state can execute by any other means it comes up with. Pain be damned (though it doesn’t say that part). Alito would be proud.

    Gibbet, anyone?

  14. From the TV show “Mad Men” via the character who was an aide to the NY Governor, “If you don’t have power, delay.”

  15. I was confused by your comments on the death penalty. They didn’t make sense until the comment that it was like the anti-abortion movement.

    You are viewing executions as a right. The state has the right to execute people – not that they may choose to execute people if they are able to do so “humanly”. The issue with the inability to purchase necessary supplies should trigger the question about cruelty. Instead it triggers the question of how else can we kill people – cruelty be damned. We have a right to kill them dammit.

    Another question that can be asked – are doctors hoisted on their own petard because they won’t participate in executions? See – it could be far more humane even with the problems sourcing drugs if only…

    There also seems to be missing a basic understanding of what the anti-execution movement wants. It is a comment on what we want the legal system to be, and how we want it to function. It is how we want mercy and justice to function. It’s not about the people whom the system now kills, except in so far as at least a small number are innocent, or are chosen because of skin colour. Each execution is a testimony to our cruelty and desire for revenge. Neither are items we wish in a legal system.

    There are people who are clearly deserving of death. The point is not that there aren’t, but that we want a legal system that recognizes it must spare those deserving of death because of it’s fallibility, because we can not tell who deserves mercy and who does not. Because we are human we need to recognize our own fallibility.

    Strategically, it is not all about the US. European countries are refusing to allow the supply of chemicals to the US. It is also making a statement about their justice systems and how they operate. That too is part of what is happening. It is not just the US. We have an obligation to not assist in immoral actions in other countries. This idea is something relatively new and well worth encouraging. That the US seems to respond by increasing the level of barbarism is not the fault of those who refuse to participate.

    I don’t see any reason for the anti-execution movement to change directions, any more than I see a need for doctors to change directions and make executions more humane, or for that matter participating in state sponsored torture to make sure fewer torture victims die.

  16. Do the veterinarians inflict terrible pain when pets needs be euthanized? The next question should be obvious.

  17. Actually, Stalin’s secret police answered your question. They would take the prisoner out of his cell with no explanation, on the way to interrogation or to another cell, and shoot him in the back of the head while walking down the corridor.
    When the French used the guillotine….

    But where is the cruelty in the three situations? In the prisoner existing, more or less, in the hell of a Stalinist or an 18th century French prison, never knowing when his hell will come to an end, in the (relative) comfort of a modern American prison, with a date certain for the end of the American prisoner’s existence (date certain, at least until the late-ish stay comes through), in…?

    Yet taking the saw literally,and giving the prisoner a speedy trial and a prompt [execution] is counterproductive. Some criminals need killin’, and we usually correctly identify them. But science is letting us reach ever farther into the past with ever greater specificity to see who really was present at the scene and who was not, as DNA evidence does on occasion, and that mitigates against the prompt hanging. We can always kill the guy tomorrow, but it’s difficult to unkill the one we did today.

    It may be that the death penalty needs to be a thing of the past. I’m not there, yet–some guys need killin’, and those are going to experience the pain of dying, no matter what we do–but of more importance to me is fixing that “usually” part.

    Eric Hines

  18. The argument is invalid. Supposing the only alternative were boiling in oil, or some other horrific alternative, how can that affect the question here, which is whether the method proposed is cruel and unusual? Your constitution prohibits cruel and unusual punishment.

    Also embarrassing here is that Glossip was convicted solely on the testimony of the killer, who had been threatened with death if he did not implicate Glossip. Many commentators have asserted that Glossip was wrongly convicted. Anyone who is confident Glossip is guilty as charged is a fool.

    The US legal system has lost it’s way in the last few decades. I highly recommend reading this analysis by judge Kozinski : http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf

    I suggest it’s time to change course.

  19. I was not aware of that wrinkle in Glossip’s conviction. If you are accurate, it is truly horrifying. Only slightly less horrifying is the idea that someone may be prevented from asserting actual innocence as an argument in a capital case. (It ought to be rejected in any case, but we have to have rules! Sure.)

  20. In 1993-1994, I challenged Maryland’s use of lethal gas as its then exclusive means of execution. http://www.nytimes.com/1994/03/25/us/given-a-push-maryland-alters-its-death-penalty.html I testified in favor of lethal injection before the Maryland General Assembly because I thought it was a less painful means of execution and if the state was going to execute people, it should do so by the least painful means. The primary problem with lethal injection or other medical-type means of execution is that the medical profession has prohibited physicians from participating in executions and, thus, the task has been left to people who do not have the knowledge or training to do it properly. http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion206.page?

  21. Jon, but the opponents of abortion do propose a mechanism by which an individual can still have an abortion. If the Supreme Court agrees that those alternative mechanisms would effectively prevent a woman from having an abortion in Texas, then the Supreme Court will likely strike down that statute. For the purposes of this argument, it is enough that the Texas Legislature has proposed a mechanism by which abortion is theoretically available. The burden then shift to the supporters of a different set of rules to demonstrate that the method is not realistically available. Other than flipping the parties, the pleading requirements are the same — each side proposes a set of rules governing the procedure — only difference is that government has the advantage of the presumption that its rules are valid and the other side bears burden of proof.

  22. Methods of execution are best decided by those who are the closest to the people’s emotions for such an emotional topic: their state’s representatives.

    That’s probably all I can say on that without getting blasted. Even that is probably too much.


  23. K,
    Assuming all your points are correct, wouldn’t it be correct that the state legislatures decide this to properly reflect society’s attitude towards the justice system instead of the courts? The courts (particularly life-time tenured appellate judges) are in a poor position to decide society’s attitudes about anything.


  24. The execution date has been set for August 5th.

    Sister Helen Prejean writes:
    “Following the Supreme Court’s decision to allow the continued use of Midazolam in executions, the State of Oklahoma has rushed to set new execution dates for Richard Glossip, John Grant and Benjamin Cole. Richard is first in line with a new execution date of August 5. I will be visiting with him in about a week and then again in August. I truly believe Richard is innocent and, like Richard himself, I have not given up hope. His dedicated legal team is working desperately to save his life.”

  25. I don’t believe anyone has been hoisted on their own petard at all. I believe that the ruling clearly shows the depths of depravity we are willing to stoop to in order to execute someone. If a state wants to execute someone that is their constitutional right. But stripping the condemned of their constitutional right not to suffer cruel and unusual punishment in carrying out that execution seems particularly twisted. People appear more concerned with scoring ideological points than they are ensuring that justice is carried out without undue or extended suffering.

  26. Just a thought:

    Regardless of whether the death penalty is or is not cruel, it is certainly unusual – even singular – in one regard. It is the only possible penalty, if inappropriately imposed, in which the improperly-punished cannot be compensated in any way, by any method, for its improper imposition. In other words, even a person who spends 30 years in solitary, only to be proven _innocent_, can be compensated in some small way. True, society cannot give back that 30 years, but it can do something to compensate for its mistake. But to paraphrase, “you can’t fix dead.”

    Here’s another:

    If ISIS (or ISIL or whatever) were executing people (“innocent” to non-ISIS members but guilty to ISIS members) with the “cocktail” that Oklahoma cannot get (or the one that Alito and Co. allow as OK), would “we” (i.e., the civilized world) say, “Oh, well, as long as you’re not hacking off heads or burning people alive, then that’s alright..”?

    I guess, for me, the answer is this: if you are gonna execute someone, you best be one sure mofo about what it is you are doing – even if God doesn’t get pissed about it, “karma” can be a bitch…

  27. I don’t see how this kind of reasoning isn’t an obvious failure of the court to carry out their constitutional duty.

    The only issue on the table is whether a given protocol violates the convict’s constitutional rights. Surely the court isn’t suggesting that those rights are somehow contingent on the behavior of people who would like to prevent the convict’s execution. The only reason for bringing the tactics of anti-death penalty crusaders into the decision is because the justices are willing to let their sympathies in a cultural fight influence their legal decision.

    One might try to give a more charitable reading. Perhaps, the justices are suggesting that the condemned man may have a constitutional interest in not being exposed to excessive pain during execution. If excessive is understood as being relative to what is practically achievable then you might interpret this passage as suggesting that when a protocol becomes impractical for the state to administer because of an inability to acquire medication, then other protocols which involve more pain may no longer inflict excessive pain.

    This doesn’t really fly for two reasons. First, if this was the intended reading there would be no need to mention death penalty foes.

    Secondly, and more problematically, the only reason that perfectly painless alternatives are not available for executions is US drug laws. The US could easily change the law to permit opiates to be used for executions and there would be no problem of supply. Thus, if we understand this passage to say anything but “it’s ok to cause more pain when those darn death-penalty abolitionists take away our drugs,” this reasoning would allow the government to artificially engineer circumstances requiring a more painful execution by outlawing the use of pain free alternatives in executions.

    If they were going to insist on going down this path I would have preferred SCOTUS to simply rule that the compelling interest in pain free executions compelled an exception to the restriction on the use of opiates in executions per the constitutional avoidance canon.

  28. One thing I don’t understand. If there is something like a war over the death penalty, why should anybody think that the Supreme Court is a combatant in that war?

    To be sure there are arguments pro and con about the legality of the death penalty, but attempting to prevent drug manufacturers to make drugs available for executions is not part of that debate. It does not require a refutation or retort.

  29. Having worked in medicine for over 15 years (trauma/surgery/field) I have always been mystified as to why using pre-surgical drugs were being used in such an inappropriate manner. These drugs are commonly short acting, require high dosages for overdose, and are considered “safe” in a very touchy situation. The drug OK uses is far from deadly, even as a precursor. Who decided that this medicine was the best route? They surely were not a poison specialist or as the usual bureaucracy happens, they took a bad recommendation and said “sure!”.

    Being said, isn’t there so many other methods that can be used that fall within the decree? The firing squad is of little assurance for “cruel and unusual” as it can take up to 90 seconds to lose conscience from a shot to the heart. So that is out the door. Granted, that is minimal to the horrific predatory rhetoric that many have been put on death row for. Keeping in the poisons track just is not consistent. Everyone responds differently to medication. There is no “general tranquilizer” like we use on lions and tigers and bears, oh my! Could it be we go back to basics. Helium or Nitrogen chambers cause loss of conscience and death within 6 minutes. Guaranteed to work. They won’t even know that the oxygen is being displaced. No fancy table and straps, no stress to workers to find a vein.

    Not a legal beagle, but if you’re going to do it, don’t bring anything into the mix with death that you use to preserve life. Just a thought

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