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.



Why the City of Charming always got along with the Sons of Anarchy


This last weekend Joan and I engaged in a guilty pleasure.

We binge watched the last season of the Sons of Anarchy. That’s the one where almost everyone in the mythical biker gang dies a violent and bloody death. It was great and glorious fun.

It reminded me of the time I spent with the Hells Angels, the bug in the bathroom and the shy kindness displayed to me by the “biker chicks” in the elevator as we rode together up to the big courtroom on the ninth floor of the old Omaha federal building. See here. But, I digress, sorta.

Tamara Tabo, an excellent writer and a very smart and interesting lawyer and law teacher, has a new post over at Mimesis Law entitled The Mess in Waco: How Prosecuting Almost 200 Bikers Crushes the System & Costs Taxpayers Big Time (June 11, 2015). It is a fascinating read, especially if you are a legal realist.

The screwed up situation in Waco brings to mind the City of Charming in Sons of Anarchy. In movie life, the City had reached detente with the bikers because to do otherwise would be both stupid and too expensive on a whole number of fronts. Whoever decided in Waco to go after all the bikers because of the deadly brawl instead of being selective simply did not understand that when you overwhelm a judicial system it is the poor goof in the cul-de-sac who ends of up paying through the nose. And then there is that bitchy question of justice. As someone once said, if you can’t afford justice you don’t deserve it–and that’s where Waco finds itself now.



“Always acknowledge a fault frankly. This will throw those in authority off their guard and give you opportunity to commit more.” Mark Twain

Golden Lady Justice, Bruges, Belgium

Scott Greenfield has announced the beginnings of “Fault Lines” a collaboration of criminal law experts to write about what really goes on in the criminal justice system. See Scott Greenfield, Meet Fault Lines, And Show It Some Love, Simple Justice (June 1, 2015).

Here is Scott’s description:

Meet Fault Lines, the new criminal law and justice section at Mimesis Law. If you like what you read here (or hate it, we’re not picky about who reads), take a quick trip to Fault Lines, where you will get more pie than ever before.

The good news is that there will be posts from me, as well as Cristian Farias and Tamara Tabo, our inaugural team of writers. Expect more writers as well, the primary criteria being that they be knowledgeable and honest. We hope to have people writing from varying perspectives, challenging bias and each other. We look forward to making this as real as it gets when it comes to criminal justice issues.

The better news is that there will be no moderation of comments, except for spam. So if your comments failed to meet the threshold for thoughtfulness here, there is a soapbox for you at Fault Lines.

If done right, this endeavor could be a very big deal. It could become a super productive hybrid of the highly regarded Volokh Conspiracy and the equally highly regarded Sentencing Law and Policy, but with a different orientation. That is, a blog written by smart, knowledgable and frank people about the criminal law in general while also addressing specific issues that confront those who toil in the mine fields as practitioners. It is likely to appeal to practitioners and judges and even academics, but also to those in the laity who are fascinated by such things.

I urge the two or three people who read Hercules to make Fault Lines a regular read. I hope and trust it will be very much worth your time.


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