Jeffrey Landrigan was just executed by the state of Arizona.* His offense involved a murder committed after he escaped from prison while serving a sentence for second degree murder. Underlining how even the small class of "easy cases" has problems, the Supreme Court rejected a claim 5-4 that he was denied a necessary hearing to determine if there was the proper degree of guilt. [I add this next part via a NYT op-ed, the dissent a bit opaque on first reading.] As would later be the case, the Supreme Court ignored lower court opinion on the matter:
I find this troubling. Yes, the appeals have been going on for some time, which is fairly normal. It is likely a delaying tactic. So? The overall purpose is to ensure that the system as a whole is secure, which includes providing judges who were state and federal prosecutors in the very state involved enough information to assure them specially obtained drugs to execute people are acceptable. Having the U.S. Supreme Court, 5-4, step in to interfere with lower court fact-finding sends a bad message and is generally a bad idea. What is the problem with dotting the Is and crossing the Ts in a case of this sort? At least, let the hearing go forward.
A regular contributor to certain blogs was quoted by the NYT:
The shortage of drugs suggests that the Supreme Court reached out here at least in part to close up a potential area of delay in upcoming cases. But, even there, waiting a month (if that) for the evidence hearing could be as useful to close up a certain loophole. The route for a defense attorney now is to obtain more evidence that the source of the drug is tainted. A hearing could have determined what rule would be followed there. The alternative taken here is that there is one more reason to distrust the system, 5-4 likely to rush to judgment the next time some problem is flagged, not giving former state/federal prosecutors some deference.
I dissent.
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* Another Arizona case in the news is a partial override of a state voting law, the concern being that it was pre-empted by federal law. It was a 2-1 ruling, Sandra Day O'Connor sitting by designation in her still quite active judicial role. Judge Kozinski strongly dissented. The tie breaker clerked for both of them.
The court’s whitewash highlights the arbitrariness of Mr. Landrigan’s execution. Cheryl Hendrix, the retired Arizona judge who presided over his trial, recently said, “Mr. Landrigan would not have been sentenced to death” if she had been given the medical evidence of the defendant’s brain damage and other factors. Mr. Landrigan’s inept trial lawyer didn’t submit the evidence.The same split, the replacements following their roles (so it's Kagan's first significant vote), overturned a recent stay. After "a day full of delays" (oh no!), the Supreme Court overturned a district court stay that was upheld by the court of appeals. The district court judge had a respectable resume, including:
She no longer had the power to alter his fate, but, in an affidavit for the Arizona Board of Executive Clemency, Ms. Hendrix supported his plea to have his death sentence commuted to life. “Since the courts have not corrected this injustice,” she stated, “I am compelled to submit this declaration on Mr. Landrigan’s behalf.”
# Assistant state attorney general, Arizona, 1984-1986Her concern? The state was not willing to openly provide information about the origins of an execution drug obtained overseas, the special supply necessary since there is a growing nationwide shortage. [I see by that link that this is not the only challenge over novel sources of drugs.] There is a state law protecting the source, intended to protect providers from harassment and the like. The judge held that there was a federal constitutional right to avoid "significant risk of suffering serious harm," pursuant to a recent Supreme Court ruling on drug protocols. Without the information, how could she tell? The Supreme Court, 5-4, looked at it the other way -- there is no evidence now of problems, so we can't assume otherwise. The temporary stay for an evidence hearing was lifted.
# Assistant U.S. attorney, District of Arizona, 1980-1984, 1986-1994
# Chief of criminal division, 1989-1994
I find this troubling. Yes, the appeals have been going on for some time, which is fairly normal. It is likely a delaying tactic. So? The overall purpose is to ensure that the system as a whole is secure, which includes providing judges who were state and federal prosecutors in the very state involved enough information to assure them specially obtained drugs to execute people are acceptable. Having the U.S. Supreme Court, 5-4, step in to interfere with lower court fact-finding sends a bad message and is generally a bad idea. What is the problem with dotting the Is and crossing the Ts in a case of this sort? At least, let the hearing go forward.
A regular contributor to certain blogs was quoted by the NYT:
Kent Scheidegger, legal director for the Criminal Justice Legal Foundation, a group that supports the death penalty, said that arguing over the safety of a drug for executions is “absurd.”Nope. "Safe" in this case is that the anesthetic works before the person is paralyzed and a third drug in administered in a way to cause "a conscious inmate to suffer excruciating pain." We are supposed to be overly concerned (see Bush years) of willingly obtaining cheaper drugs from Canada and so forth, but in a different context, the foreign drugs are assumed safe. The proof is on the side of the person executed. Seems a tad bit backward. Repeated problems with executing protocols underlines that this overall area is not a trivial concern. The physical pain from punishment is if anything the core concern of the Eighth Amendment. State refusal here underlines this is not merely a chance occurrence, the state not actively involved in the risks involved.
“As long as it’s a real drug manufacturer and not mixed up in somebody’s garage, it doesn’t matter where it came from,” Mr. Scheidegger said. While the Food and Drug Administration is supposed to determine whether drugs are safe and effective, he said, “in this case, safe and effective are opposites.”
The shortage of drugs suggests that the Supreme Court reached out here at least in part to close up a potential area of delay in upcoming cases. But, even there, waiting a month (if that) for the evidence hearing could be as useful to close up a certain loophole. The route for a defense attorney now is to obtain more evidence that the source of the drug is tainted. A hearing could have determined what rule would be followed there. The alternative taken here is that there is one more reason to distrust the system, 5-4 likely to rush to judgment the next time some problem is flagged, not giving former state/federal prosecutors some deference.
I dissent.
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* Another Arizona case in the news is a partial override of a state voting law, the concern being that it was pre-empted by federal law. It was a 2-1 ruling, Sandra Day O'Connor sitting by designation in her still quite active judicial role. Judge Kozinski strongly dissented. The tie breaker clerked for both of them.