Tinker tinker

As reported in this local article, "unresolved concerns about the drugs used to execute Dennis McGuire last month prompted Gov. John Kasich yesterday to postpone the scheduled March 19 lethal injection of Gregory Lott."

The blog (see links there) has reported various issues involving the death penalty, including possible problems with drug protocols, the possibility of "volunteers"* and gender issues.  The author is wary about the death penalty, but basically deems it appropriate for certain extreme cases -- he to me seems to taunt "abolitionists" from time to time on how to explain why it is not warranted in such cases.   Sentencing Law and Policy Blog is one of my standard sites to check out the status of criminal law issues and has been useful of late to check on the status of this issue. 

From this day forward, I no longer shall tinker with the machinery of death.

A few years before Justice Blackmun wrote these words, he or his office was nice enough to respond to a letter that I sent to his chambers (I tried Stevens and did not get a reply).  My letter included a comment about my opposition to the death penalty (don't recall the wording ... probably praising him but noting this was one level of disagreement). The reply noted thanked me for writing and noted that people will disagree about certain things.  Well, he eventually decided to go the route of Brennan, Marshall, Powell (after retirement) and Stevens, though each did it somewhat differently.  Blackmun, as a sort of vale, rested on the failure to provide adequate fairness. Stevens** et. al. relied on more substantive grounds.  I think the problem both though perhaps the procedural issue is generally a more appropriate concern for the courts.

Society in general supports the death penalty, but in a fashion, a small subset of murderers (if allowed, an even smaller subset of rapists and perhaps others -- like drug kingpins -- would be covered here too) provide "atonement" or some such term (I admit the word might be too um honorable in context) for the rest.  Take Tennessee -- the blog notes that a big influx of execution dates just came in -- ten.  Since the mid-1970s, six executions occurred.  I looked into the matter. As noted in the comments, there were no (none) executions in the state from 1961-1999.  Ten or so occurred in the 1950s. A larger number, going by the records available, were performed from 1910-1949.

Still, I assume event then, it was but a small subset of murderers.  This is pretty much the norm. The numbers are higher is a few "death belt" states, it is true, but even there, it is a small portion of the murder rate. And, we are talking about only about ten or so states at best here with sizable numbers, especially in let's say our current President's lifetime.  Certain heinous crimes will make you more likely to be executed, but even there, only so much.  Also, it is true that there are more people on death row.  The theme, however, holds -- over our history, repeatedly, people sentenced to die in various ways were not executed.  It would require a serious uptick, a lot more than ten at once, to even clear a substantial percentage of those on death row.

The ability of a Republican governor like Kasich to delay with no apparent major complication as to public opinion underlines that the public does not want such an uptick. There will be from time to time some grumbling, but single digit (even over a span of a decade) executions will not appall the public at large.  This adds to my disdain when some make comments about "the left" or "judges" or "abolitionists" or "defense attorneys" blocking death sentences by any means necessary.  Ha. The people at large (including juries, who in most states have basically complete discretion to choose death when prosecutors give them the choice) have the ultimate responsibility here.  While judges, legislatures, governors and the rest "tinker" with death, they mostly look from the sidelines.

The whole process is somewhat depressing, but as long as it is deemed necessary to execute a few people -- via a system that ultimately is pretty arbitrary and is unconstitutional imho on that ground alone -- it will continue.  There will continue to be problems and enough concerns that there might be problems (the "reasonable doubt" standard highlights this -- you can be pretty sure someone is guilty and still worry that the conviction is sound; executions in effect are put to a higher test) for these sorts of things to continue.  Death will remain different enough that even executing heinous murderers will be seen as something we have to be really careful about.

That, imperfect as it is in practice, is somewhat reassuring. 


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* He has written in the past suggesting that the harshness of life on death row or even LWOP from what I gather very well might warrant a right in some cases to end one's life.  An intriguing idea that matches his usual reasonableness, including in the face of certain contributors there.

I find it questionable to give such people that right (to be blunt, there are unofficial ways to go), particularly as a matter of line drawing. I feel (a popular link relatively speaking) this way about "death penalty is easier" arguments generally.  That is, it very well might be easier to submit to execution than stay in prison for decades, perhaps in near solitary confinement. But, many non-capital criminals have very long sentences. Should it be "easier" for capital inmates? Where is the line?

And, I realize us "abolitionists" are supposed to be a bunch of softies, but honestly, I have little sympathy vis-a-vis some drug offender in for fifteen to twenty or something, about how hard some heinous murderer is finding prison life. They are human beings and deserve some minimum level of care, quite right, but I don't think the death penalty is appropriate to respond to murder ... nor, assisted suicide the solution in this case.\

** Stevens concurred in judgment (in a veiled shot at B/M) because "respect [of] precedents that remain a part of our law." One thing that was off about Stevens' concurrence was his argument that concern for the harshness of procedures of execution clashed with retribution aims (like many, he concluded if there is a sound reason for it as currently applied, that would be the only one really in place) of the death penalty.

On this matter, CJ Roberts was correct -- trying to make execution as painless as reasonably possible does not negate the retribution function -- you still are ending the life after all!  That to me sounds serious enough, if retribution remains a valid purpose in general, including (as noted in Gregg v. Georgia) as a way to satisfy vengeance demands of some segments of society that might wish for more cruel methods.