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.



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.



The death penalty and the matter of factual innocence

“The truth is that many federal judges, and I would suppose many state judges as well, understand that the death penalty has and will continue to result in the innocent being put to death in some small percentage of the cases.” I wrote those words in a post yesterday and a thoughtful commentator responded that such a statement “merit[s] further exploration and discussion.” I agree, and endeavor to do so in this response.

Here goes:

  • Although I have written an opinion for the Eighth Circuit affirming the death penalty in a case involving an especially horrible murder of a child, see here, this post flows exclusively from my perspective as a federal trial judge.
  • I now have several death penalty cases pending before me. Nothing I write here comments upon the merits of those cases or death penalty cases that I may take on in the future. For example, I express no opinion on whether “actual innocence” is or should be something more than a bridge to overcome procedural default. To be clear, I have not made up my mind about anything having to do with a real case whether it is pending now or comes down the pike later.
  • As a purely personal matter, I am agnostic about the death penalty. I can see it both ways.
  • As a judge, I strongly believe the death penalty is a matter of policy to be determined by the people through their elected representatives and as such deserves special respect from federal trial judges like me. I agree with the statement, if not the tone, of Mr. Justice Holmes when he said that “If my fellow citizens want to go to Hell I will help them. It’s my job.” That is terribly flip, but the statement is not as cavalier as it sounds. As Thomas Hobbes asserted in the Leviathan (1651), life in the state of nature is “nasty, brutish and short.” Thus, to escape from this chaotic and predatory jungle, we ban together and form a social contract between ourselves–all 300 plus million of us. Our social contract has produced a good and decent society premised primarily upon representative democracy. It is therefore almost always the job of the judge to honor and enforce that contract even when it rubs us wrong. We must understand that our federal judiciary is an anti-democratic institution in a fiercely and fundamentally democratic society. From the limited powers granted to the judiciary in the Constitution, to the Jeffersonian concern about the institution itself, to the precedents of the Supreme Court dating back hundreds of years, it is apparent that our federal judiciary is intended as a weak, small and seldom used brake on the passions of the electorate. It is the great challenge of the federal judiciary to decide when, and how often, to apply that brake. Our people are not stupid and they are basically good-hearted–both on the right and the left. Moreover, the huge majority of them believe deeply in electoral democracy. They also know that no legal system can be perfect but in many places they have consistently voted to enact the death penalty, while accepting the many limitations placed on that device by the federal courts. If our citizens, knowing the system is not perfect and thus may likely result in the unintentional killing of the innocent, elect to employ the death penalty, then the “least dangerous branch” (adopting the formulation of Alexander Bickel, one of my favorite modern legal thinkers) has no just reason to do away with the death penalty simply because it does not function perfectly. As Voltaire said, the “perfect is the enemy of good.” If the People want “good” rather than “perfect” most of the time it is the job of the federal trial judge to provide it.
Image credit: Isaac Fuller, oil on canvas

Image credit: Portrait of Thomas Hobbes by Isaac Fuller, oil on canvas

  • It is important to distinguish between what may be a immoral and what may be unjust. They are not the same. Depending upon your religious beliefs, it may be immoral for a judge to accept that an innocent man may die in order to maintain a system that protects society at large by executing a great number of malevolent and guilty killers. But, is the judge’s acceptance of that flawed system just? The positive law theorists (like Hobbes and Holmes*) would say “yes, it is just”–so long the judge acts pursuant to the law. To them (and probably me) there is no justice without law. Legal positivists believe (a) Justice and injustice are dependent on positive law; (b) Law itself is independent of justice; (c) Justice consists in conformity to positive law; (d) Justice, apart from legality, is merely a subjective [individual] norm; (e) Justice is obligatory ultimately only because of legal and political sanctions; and (f) The virtue of justice is identical with obedience. Otto A. Bird, The Idea of Justice, at p. 43, Concepts of Western Thought Series, Institute for Philosophical Research (1967, Federick A. Plaeger Publisher). As Professor Bird explains:

The “basic norm” of a society determines what is just and unjust: “A man is just if his behavior conforms to the norms of a social order supposed to be just.” But every society believes that its order is just. Justice then is relative to a given society and to the kind of constitution it has. A democratic society has “democratic justice”; an oligarchic society, “oligarchic justice”; a communist society, “communist justice.”

Id. at p. 49 (Emphasis added by Kopf)

  • To sum up the two long paragraphs that precede this one, since ours is an aggressively democratic society, Holmes and Hobbes (and probably me) would argue that judges ought generally to fulfill the will of the electorate when it comes to the death penalty even if the unintentional sacrifice of a small number of innocents is the cost of maintaining a system that the people have intentionally selected despite their knowledge of the risk.
  • When I was a lawyer, I represented a murder serving a long prison term for repeatedly sticking a knife into the heart of another young man in a bar fight. Because of a sentencing error, I got his time cut in half which resulted in his immediate release. See here. I came to like, and, in many ways, respect this killer. Oddly, I also came to think of him as a basically good person. Later, he gave me a briefcase made in prison bearing the words “R.G. Kopf” and the scales of justice carved into the leather. It hangs on the coat rack in my office in prominent view. Each day as I enter the courtroom that lurid case reminds me that I am dealing with a human being seated in the defense chair. That realization is there also when I deal with death penalty cases. How could it be otherwise?
  • I adhere to no religion privately or otherwise. I accept no other person’s definition of morality. Since I have become a judge, I have never voted. I have given up my Nebraska law license. I cherish the independence given to me by Article III of the Constitution, and I avoid influences that might interfere psychologically or otherwise with that independence.
  • I have never had a death penalty case where I believed the defendant was factually innocent. Not one. The following summary I provided in one of those death penalty cases best characterizes my experience:

The Nebraska courts, and five (or more) zealous defense lawyers, have expended much sweat and treasure insuring that Lotter received a fair trial, a just sentence, a searching appeal and repeated postconviction examinations. A jury of twelve people found beyond a reasonable doubt that Lotter was guilty. A panel of three judges thoughtfully considered whether Lotter should receive the ultimate penalty, and they decided that he should. Seven thoroughly conscientious Justices of the Nebraska Supreme Court scrutinized the conviction and sentence in a direct appeal and they found nothing that justified relief. After that, trial judges and appellate judges patiently examined and denied Lotter’s numerous claims asserted in several postconviction actions brought during the ensuing decade.

Following careful consideration of the record developed in the Nebraska courts and despite the superb work of federal postconviction counsel, I find and conclude that Lotter is not entitled to relief. Legally speaking, if Nebraska carries out the sentence, there need be no “second thoughts.”

Lotter v. Houston, 771 F.Supp.2d 1074 (D. Neb. 2011) (this case involved the killing of Teena Brandon (Brandon Teena) and two others and these killings became the basis for the critically acclaimed movie “Boys Don’t Cry.”).

  • I have had one death penalty case when I was a magistrate judge where I recommended that the writ be granted for among other reasons because it was clear that the defendant unlawfully shot and killed a person but in a manner far more benign than characterized by the Nebraska Supreme Court. That decision was affirmed on appeal. Rust v. Hopkins, 984 F.2d 1486 (8th Cir. 1993). There was no question, however, that the petitioner was guilty of murder.
  • When I took my oath of office as a federal district judge in 1992, I knew that someday I might condemn an innocent man to die. I willing accepted that risk when I took that oath, and I willingly accept that risk now. I will have to live with my knowing choice if such a horror comes to pass. I will have no one to blame but myself. However, I am not unique. You would have to be a “suit on stilts” to become a federal trial judge in a district where the death penalty is practiced to believe that your experience or your state will be free from what happens every other place where citizens are put to death by the state. No, you know that you are signing onto the “machinery of death” and you further know that the machinery in some few cases unintentionally kills innocent people. What you hope is that you aren’t the one to preside over the “accident.”
  • Except as noted in the following three paragraphs, I do not know what I would do if I were confronted with a case where the petitioner was factually innocent of murder and I knew that the petitioner was factually innocent of murder but there was no federal legal remedy available to stop the execution. However, I do know this: I would move heaven and earth to stop the execution, but I would not play games with the law to do so.
  • Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that there was precedent that compelled such a result. For example, should the Supreme Court hold that factual innocence is not cognizable as a “stand alone” federal claim, I would follow that precedent.
  • Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that the petitioner could also resort to a fair and speedy pardon process prior to the execution.
  • Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that the petitioner had “sat on his rights” thus contributing to the absence of a legal remedy to address his factual innocence.

I invite readers to comment on the foregoing. I do not expect nor necessarily desire gentle treatment.


*Holmes might more accurately be called a legal realist. There is a difference between legal positivists and legal realists, but I have always thought of them as “kissing cousins.” To avoid being even more pedantic than I have already been, I blend the two conceptually in this blog post. I no longer care about the academic rigor that used to be so important to me back when I hoped to wear tweed jackets the rest of my life. In any event, it is not necessary to explore those differences in this setting.

The death of innocence

If as a federal trial judge you handle habeas corpus cases involving the death penalty your sensibilities will never be the same. What do I mean? Take the beheadings in the middle east as an example. I have had death penalty cases that make those rather quick killings look merciful.

Let me be illustrative. Take a little girl. Rape her. Terrify her. Despoil her. Then kill her inflicting the most pain possible and pose her in an obscene position for the authorities to find. Leave that image forever burned into the memories of her parents. Beheadings? Child’s play. ISIS better up its game if it desires to remain competitive in the horror business. Advice: ISIS please read American law books, you will learn a lot from our monsters. We have the really good ones.

That brings me to satire. There are historical figures we should venerate because they wrote with the irony that shocks and illuminates and stays with us forever. Jonathan Swift comes to mind. Example: On Irish beggar children: “A young healthy child well nursed, is, at a year old, a most delicious nourishing and wholesome food, whether stewed, roasted, baked, or boiled; and I make no doubt that it will equally serve in a fricassee, or a ragout.”

And Swift takes me to the Onion and the death penalty.  A dear friend, a former law clerk, and a real lawyer who despite her gender spits on the idea of trigger warnings sent me this: Death Row Guard Has Always Had Soft Spot For The Innocent Ones. I hope you enjoy it as much as I did.

"Saying he’s seen 'a lot of people come through here in [his] day' and met prisoners of every type, longtime Louisiana State Penitentiary death row guard Dwayne McFadden confided Wednesday that he’s always had a bit of a soft spot for the innocent ones. . . . McFadden says he always goes a bit easier during cavity searches of inmates who didn’t commit capital offenses."

“Saying he’s seen ‘a lot of people come through here in [his] day’ and met prisoners of every type, longtime Louisiana State Penitentiary death row guard Dwayne McFadden confided Wednesday that he’s always had a bit of a soft spot for the innocent ones. . . . McFadden says he always goes a bit easier during cavity searches of inmates who didn’t commit capital offenses.”

Have a nice day!


Hat tip: Islamic State of Iraq and the Levant (داعش).


An article you must read about humanity and a real lawyer (who is also a prosecutor)

Luckily, I have never had to impose the death penalty.  But, I review death penalty habeas cases and, not infrequently, find no room to spare the defendant. It is not enjoyable work.

Now, imagine you are an elected state prosecutor in a small town, say in Texas (or Nebraska). You have to decide whether to seek the death penalty. What type of a person, what kind of lawyer, do you want to make that decision?  Before you answer, read this absolutely superb piece of writing by Maurice Chammah, To Kill? Or Not to Kill?As executions decline in Texas, a small-town prosecutor decides whether to seek the death penalty, Texas Observer (April 23, 2014).


PS. Great thanks to Southern Law Student (SLS) for the tip. By the way, I predict that SLS will become a really great lawyer, and a highly introspective one at that.

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