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.




Petardsketch2A petard is not what you think it is. Well, to be more accurate, a petard is not what I thought it was. A petard is a small explosive device used to breach gates and the like as shown in the sketch reproduced above. The meaning of the word “petard” derives from taking the roots of the word in Middle French, Latin and Greek and making an analogy. That is, the small explosive character of the bomb is the equivalent of breaking intestinal wind. The phrase “hoisted by your own petard,” as used in Hamlet, means that one has blown oneself up. Hey, pay attention now, this is not a digression!

A year or so after Judge Ross dissented in Jones v. Clinton, I had my own run in with the Clinton whirlwind. Few people know it, but the First Lady is a government official for purposes of the attorney-client privilege. If you think about it, that makes sense. Anyway, Mrs. Clinton discovered some papers in the residence at the Whitehouse. Mrs. Clinton had a meeting with her personal lawyer and her White House counsel to decide what to do with the papers. They decided that the papers should be turned over to Kenneth Starr, the special prosecutor. That was not good enough for Starr, and he obtained a grand jury subpoena to get the lawyers’ notes of that meeting. Susan Webber Wright, the district judge, who is a really nice person and a great judge, said hell no. And that important matter of first impression came to the 8th Circuit, where I was sitting by designation.

The case is In Re Grand Jury Subpoena, 112 F.3d 910 (8th Cir.) (holding that the White House may not use the attorney-client privilege to avoid complying with the subpoena issued by a federal grand jury calling for lawyers’ notes and Mrs. Clinton’s reasonable belief that her conversations with White House lawyers were privileged was insufficient to prevent their disclosure), cert. denied, 117 S.Ct. 2482 (1997). Judge Bowman wrote the opinion for the court and Judge Wollman agreed. I dissented.

I vividly remember the oral arguments because they took place in a sealed courtroom in St. Louis. The proceedings were closed because the matter dealt with a grand jury matter. Anyway, as I saw it, the question was whether or not the White House had an attorney client privilege in a criminal case and whether Mrs. Clinton gave up her personal privilege by participating in a meeting with White House counsel.

Relying on Proposed Federal Rule of Evidence 503 and United States v. Nixon,  418 U.S. 683 (1974), I thought it plain that the White House had an attorney-client privilege and that the privilege could be overcome only as follows:

(1) The special prosecutor must make an initial threshold showing before the district court that the documents are: (a) specifically needed; (b) relevant; and (c) admissible [or would lead to the discovery of admissible evidence].

(2) Assuming such a showing has been made, the documents are first delivered to the district judge, who will examine the documents in chambers, to decide if in fact the documents are relevant and admissible, and irrelevant documents will be returned under seal to the White House.

I also reasoned that Mrs. Clinton did not forfeit her personal privilege because she had reasonably relied upon the existence of the governmental privilege in a matter of “common interest.” But, in the future, Mrs. Clinton could have no personal privilege under similar circumstances because under the Nixon balancing test the governmental privilege could be overcome in a criminal case in certain rare circumstances and thus she could not thereafter reasonably rely on the “common interest” proviso.

After the opinion was unsealed at the request of all parties and the matter hit the press, most everyone assumed the Supreme Court would take the case. After all, it was a matter of first impression and it involved the scope of the White House’s attorney-client privilege. But, as frequently happens, the Court fooled everyone. It let Judge Bowman’s opinion stand. Shortly thereafter Judge Ross called me. Our conversation was brief. He said simply, “Richard, my boy, we have been hoisted by our own petards.” And that was that.


P.S. To be perfectly clear, I do not mean to suggest in any way that Judge Bowman or Judge Wollman were motivated by politics. Moreover, as a district judge sitting by designation on an explosive case like the one mentioned, Judges Bowman and Wollman could not have been nicer or more helpful and that was so despite my dissent. They are true gentlemen.

Justice Scalia finds out that if you live by the sword, you die by the sword

gpk2F72Please read Callins v. Collins, Director, Texas Department of Criminal Justice, Institutional Division, 510 U.S. 1141 (1994) that denied cert. in a death penalty case. In that case, Justice Blackmun uttered these famous words, “From this day forward, I no longer shall tinker with the machinery of death.” That prompted Justice Scalia to skewer Blackmun with these words,

Convictions in opposition to the death penalty are often passionate and deeply held. That would be no excuse for reading them into a Constitution that does not contain them, even if they represented the convictions of a majority of Americans. Much less is there any excuse for using that course to thrust a minority’s views upon the people. Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us — the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which JUSTICE BLACKMUN did not select as the vehicle for his announcement that the death penalty is always unconstitutionalfor example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina, cert. pending, No. 93-7200. How enviable a quiet death by lethal injection compared with that! If the people conclude that such more brutal deaths may be deterred by capital punishment; indeed, if they merely conclude that justice requires such brutal deaths to be avenged by capital punishment; the creation of false, untextual, and unhistorical contradictions within “the Court’s Eighth Amendment jurisprudence” should not prevent them.

Id. (Emphasis added by Kopf).

The Supreme Court later denied cert. in the McCollum case relied upon by Justice Scalia to poke fun at Blackmun. McCollum v. North Carolina, 93-7200 (June 30, 1994). Now read State of Carolina v.  Henry Lee McCollum, General Court of Justice, Superior Court Division, Robeson Co. File No. 83 CRS506-07, et al (September 2, 2014) (releasing McCollum because DNA evidence established his innocence) (PDF will be generated).

With this preparation, next read Leonard Pitts, Jr.: What do you think of the death penalty now, Justice Scalia?, Miami Herald (June 13, 2015).* Put simply, Pitts guts Scalia.

The essay concludes this way:

The argument against the death penalty will never have the visceral, immediate emotionalism of the argument in favor. It does not satisfy that instinctive human need to make somebody pay — now! — when something bad has been done. Rather, it turns on quieter concerns, issues of inherent racial, class, geographic and gender bias, issues of corner-cutting cops and ineffective counsel, and issues of irrevocability, the fact that, once imposed, death cannot be undone.

Those issues were easy for you to ignore in mocking Blackmun. They are always easy to ignore, right up until the moment they are not.

This is one of those moments, sir, and it raises a simple and obvious question to which one would hope you feel honor-bound to respond. In 1994, you used this case as a symbol of why we need the death penalty.

What do you think it symbolizes now?

Considering the title to this post, and intending to mix my metaphors, Scalia has been hoisted by his own petard!


*I tip my hat again to the incredible resource that is How Appealing.


I did not write this post primarily to comment on the death penalty. On the contrary, I wrote this post as a comment about legal writing and legal argumentation. In my opinion, Justice Scalia’s concurrence blew poor Justice Blackmun’s fretful dissent out of the water, but Scalia went too far and that hubris has now come back to bite him in the butt. An argument constructed around an analogous set of facts can be very powerful, and it can also blow up in your face if the facts as you understood them later turn out to be wrong.



%d bloggers like this: