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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, April 19, 2008

Lethal Injection Ruling

And Also: The Federalist Papers underlined the sometimes forgotten principle that systems themselves can provide important protections, individual rights and privileges in effect there because men and systems aren't angels. This is underlined in the latest fiscal news of chicanery both locally and nationally, prime examples of the legislative budget process not running properly. You can oppose any number of actions, but when the procedure is crooked, you really are in trouble. BTW, following last time, Hawkins had a bad game yesterday.


Bottom line, the lethal injection ruling was probably as good as might be expected. The chance that the protocol as applied or in general would be ruled unconstitutional was a long shot at best, but surely the case when Breyer sounded dubious about the claims during oral argument. In fact, even Stevens sounded like he was concerned about the procedure as a whole, but thought only a much weaker as applied standard would be the focus of the ruling. Thus, a concurring in part ruling seemed quite possible. Souter seemed most concerned, but counting to five here was rather easy -- for the state.

The most one realistically hoped for was a narrow ruling and some good concurring/dissenting opinions. Well, we did get five concurring opinions, and a dissent. The numerous opinions suggests a fractured Court, and in effect there was, but the basic holding can be expressed fairly easily: if a means of execution is constitutional when "the alternative procedure is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain," it is a "cruel and unusual" punishment. There is a loophole, of unclear breadth, mentioned in passing -- if there is a "legitimate penological justification" purpose for using such a risk, it might be appropriate.

Only a plurality of three (led by CJ Roberts; Alito joined but wrote a concurrence to appeal to death penalty supporters who thought it unworkable in practice) joined, but as the lowest common denominator, it is clearly the holding of the Court.* And, it did a basic job of the Supreme Court -- not to supply individual judgment on a case by case basis like a district or even (lower level) appellate court, but to put forth guidelines for others to follow. There has been some in respect to treatment of prisoner cases, but in the realm of execution procedures as such, no case (surely of recent vintage) really addressed the matter directly. So, the case is valuable in that sense, the test seems okay enough, supplying some teeth to checks to abuses in this area.

I'd add that it also appears to be well written, the opinion smoothly addressing some of the concerns of the other opinions, and summarizing in fairly quick fashion the various factors involved in the ruling. This professionalism is appreciated, even if I will find various substantive results for which it will be used dubious at best. Also, there is an ability to smoothly elide past dubious judgments made such as the justifications for use of a paralyzing agent that provides a risk of substantial pain [when such pain is clearly foreseeable, there has to be some blame supplied the state, some sense that it was intentional ... Scalia/Thomas' arguments notwithstanding]. An ability that in some sense makes Roberts/Alito more dangerous. As to this issue, Stevens says it well:
The plurality believes that preventing involuntary movement is a legitimate justification for using pancuronium bromide because “[t]he Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress.” Ante, at 19. This is a woefully inadequate justification. Whatever minimal interest there may be in ensuring that a condemned inmate dies a dignified death, and that witnesses to the execution are not made uncomfortable by an incorrect belief (which could easily be corrected) that the inmate is in pain, is vastly outweighed by the risk that the inmate is actually experiencing excruciating pain that no one can detect.

This all makes Stevens' concurrence a bit curious -- in effect, in ipse dixit form, he says the factual basis provided does not warrant declaring the procedure unconstitutional. Stevens didn't join Breyer's concurrence, which provided some basis on why this is so. In the long run, it doesn't really matter, and in effect gives his anti-death penalty ruling added cachet. Unlike Brennan/Marshall, and to some lesser degree Blackmun (whose obvious limited days on the Court factored in), Stevens stays loyal to the current case law allowing the penalty at issue. Linda Greenhouse, who I guess still is doing some work for the NYT, had a very good article on the strategic genius shown here.

Getting on the back of Justice White -- without referencing his post-Furman turnaround -- is particularly creative (and a bit too tricky ... which pops up with Stevens at times too). All the same, as applied here, he clearly doubts the use of pancuronium bromide, suggesting that its a risky move open to very credible litigation. Likewise, he finds per Ginburg/Souter, "[s]tates may also be well advised to reconsider the sufficiency of their procedures for checking the inmate’s consciousness." So, though I find his opinion on the whole very good, I wonder about this aspect. I'd add that the fact he is one voice raising concerns (one that concurred in judgment!) adds to the injustice of Scalia's tired claim that the opinion was just another push for a judicial power grab.

[I will remain somewhat agnostic about the specific application of the protocol in part because I did not research its particulars but my rule of thumb is to put the weight on the side of protecting against error. I am thus inclined to join the dissent and Stevens' suspicions in this respect, but will leave things somewhat open. My basic concern throughout was that there was some valid concerns here, the lower courts probably could use some guidance in applying a proper rule in this area and examination of such issues would rightly remind the complications in this area. I rejected those on both sides who implied this was a makeweight argument and had concerns beyond the legitimacy of the death penalty as a whole. But, yes "death is different," so any risks here are that much worse.]

Likewise, I'm with the plurality on one thing -- the fact society supports more humane executions does not really denigrate its overall support of the penalty on retribution grounds. Nothing is pure in that respect. [See my comment here among others.] OTOH, he does address [final footnote] the argument that somehow the death penalty can never be unconstitutional because the Double Jeopardy and Due Process Clauses have the word "life" in them. The latter case is easier, since there are numerous ways the state can deprive a person of life, including shooting prisoners doing a riot. As to double jeopardy, it is but one provision of one amendment. If the only way to execute is to do so cruelly or without due process, it is still unconstitutional.

Sorry, this is not rocket science, and the continual citation of the word "life" is honestly just a tad bit lame. This is so even when those more sympathetic (see comments too) than Scalia and Thomas makes it. As a whole, the ruling was okay ("okay" will have to be enough for years to come, thanks to 2000; it also does not translate as "what it should be"), and also showed the charm of Stevens and Souter (and Ginsburg, who wrote the dissent), plus why Breyer is just not the liberal knee-jerk type some claim him to be.

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* As I discuss here, I find the argument that Justice White's opinion in Coker v. Georgia is but a plurality that did not obtain support of a majority of the Court bogus at best. This was raised during the orals for the execution for rape of a child case, based on the sentiment that Brennan/Marshall joined because of their total opposition on constitutional grounds to the death penalty. But, they obviously agreed with the lesser point, a matter
clearly understood in later cases (including Tison v. Arizona). I also address the claim that Coker was just some sexist ruling, which also is a stretch.

Thomas/Scalia wanted a "pain for pain's sake" sort of test, the former doing his usual best in selectively using originalism/precedents to make the case. Breyer supported a stronger test put forth by Ginsburg/Souter (who as a whole thought the procedure in this case not secure enough), but disagreed that it was violated. Stevens thought further factual grounds might call into question the use of the paralyzing agent, but as is, neither the plurality or the Ginsburg tests were violated. Still, he found the death penalty as a whole constitutionally dubious, which Scalia/Thomas disputed.