Friday, August 29, 2014

Ferguson and Spokeo

Rejecting the notion, floated by some so-called "progressives" and members of the Congressional Black Caucus that we need a Police Czar to prevent what happened to Michael Brown.  Or maybe what happened afterwards.  You know, to make the police friendly (just as the [war on] Drug Czar did such a fine job making the drug war genial and the Homeland Security Czar made TSA screenings warm and fuzzy and the Russian Czar made A FUCKING REVOLUTION), Scott Greenfield suggests that we already have the tools in place to reign in the police war on the citizenry.
But there is nothing sought for which there isn’t someone already responsible. The DoJ has an office of civil rights. The DoD doles out surplus military equipment under its 1033 program. You’ve got people paid to lead the police, oversee the police, fix the police, stop the police, then you can shake a stick at. And it’s amounted to a group of overarmed, undercaring, people with the power to subjugate upon command. So the answer is let’s add another layer with a cool Russian title?
Is there something progressive about the men and women we elected to national office, sometimes referred to as members of Congress, getting a free pass on their responsibilities? Or perhaps a Chief Executive who might use the fiat of his office to satisfy the needs of the citizenry. If only he had an Attorney General (which, If it makes people feel better, could be renamed to Attorney Czar) who was charged with seeing that the Constitution was honored by all who hoped to receive a government pension some day?
There is nothing here, nothing called for, that can’t be accomplished by the people already in place. They have the power and authority to control law enforcement. 
Don't hold your breath.

It is, after all, those elected officials (and the ones appointed by them and confirmed by them) who enthusiastically created this mess.  it is they who enthusiastically promoted the movement from 
 to

Oops.  Sorry.  Meant this

Of course, there are also the courts.  They, as Scott added, are the backup.
And to the extent some slimy bastards sneak through, we then have judges to fix their wagon.
Well, not so much.  As Erwin Chemerinsky pointed out in a Times Op Ed the other day, various sorts of Court-created immunity protect government and cops from being sued.  You have to make them pay, but the courts insist that we can't allow that.  Oh, sure we have the right not to have our rights violated. But nobody gives a rat's ass about that.

What some people do care about is a broader effort to shut the courthouse doors to people who've been wronged.  What makes it easy, and what purportedly justifies it, is how the Supremes have dealt with the provision of Article III of the Constitution (specifically, the first paragraph of Section 2 of Article III) that sets out the jurisdiction of the federal courts.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Which brings me to Spokeo.  That's Spokeo v. Robins, a case that the Supremes have been asked to hear this year.  

Spokeo asks the question of whether Congress has the authority to give people the right to go into federal courts and sue because their rights have been violated.  Technically the issue is much narrower than that, but the broad brush is suitable here.

This is the problem.  The Court has long held that those "Cases, in Law and Equity" coming from the Constitution, laws, and treaties, are only ones where somebody has suffered a specific and personal concrete injury.  Out some money, you can sue.  Be physically harmed, you can sue.  Just be pissed because your constitutional rights are being violated but not in any personal, concrete way - you haven't lost anything except a bit of your guaranteed freedom?  Nope.  Sorry.  The courts won't fix that.

As the Supremes said, back in 1979 (citation omitted, Rehnquist and Stewart dissented from the Court's decision, but pretty clearly not from what I'm quoting), explaining what that limitation to cases meant
In no event, however, may Congress abrogate the Art. III minima: A plaintiff must always have suffered "a distinct and palpable injury to himself" that is likely to be redressed if the requested relief is granted.
Why, if we actually said the courts were there to protect rights generally, to hold the government accountable for violating the Constitution?  It would surely be the end of the Republic.

Or not.

So Congress passed the Fair Credit Reporting Act and said that credit reporting agencies could be sued for willfully getting the information they reported wrong even if the person whose info was misreported hadn't suffered any actual harm from it.  (I'm oversimplifying like crazy.  Live with it.)  Spokeo said that Robins was better educated than he was, had more experience than he does, is married though he is not, and was better off financially than he is.  Robins sued for what he called a willful violation of the Act's requirements.  (Spokeo denies that it violated the Act, but that's irrelevant here.)  Ultimately, the 9th District said Robins could sue because he had an "injury in law" even if not an "injury in fact," and Congress said in the Fair Credit Reporting Act that an injury in law was enough.

Sorry for the arcana, but there was no other way.

So the question the Court can now answer if it's so inclined (the Court is set to consider whether actually to hear Spokeo at it's "long conference" on September 29) is whether there are circumstances when you can sue even if you haven't been hurt except that some right has been violated.  If the Court says yes (and I'm not putting good money on that), it's not only a victory for Robins and many other litigants, it's also a crack in the machinery that keeps the courthouse doors locked.

And once the doors are open even a little bit, then we can try to drive the trucks through.

The rules for closing the courthouse to people like Robins are supposedly based on the actual language of the Constitution.  The rules that say that cops are mostly immune to suit, that prosecutors are absolutely immune, that government is mostly immune, those rules have no grounding in the Constitution at all.  They were made up because the Divine Right of Kings and besides, if prosecutors and cops can be sued for riding roughshod over the innocent and guilty alike, they might exercise restraint - and then where would we be.

None of that would do much to hold Ferguson or Officer Wilson liable for what happened to Michael Brown.  And it doesn't directly address
But it'd be a start.


Sunday, August 17, 2014

Because He's Not Above or Below the Law

What should he do if it's true?  If he actually beat his wife?

That's what Judge Kopf asks at his blog, Hercules and the Umpire.  He's asking about Mark Fuller. That's The Honorable Mark Fuller, Judge of the United States District Court for the Middle District of Alabama.  

Jay Reeves in the Montgomery Advertiser.
Atlanta police arrested Fuller, 55, early Sunday and charged him with misdemeanor battery after his wife called 911 from a hotel and said he was beating her. Mark Fuller told police that his wife became violent as she confronted him with allegations of cheating.
Judge Fuller, of course, isn't the only judge to find himself facing criminal charges.

Here in Cuyahoga County, Judge Harry Jacob is waiting for the verdict on the charges of tampering with evidence and with records. (They dropped the far more salacious charges including promoting prostitution.) And Judge Lance Mason is out on $65,000 bond on charges of felonious assault against his wife.

None of this is, or should be, startling.  We might like to think that judges (especially federal, I suppose since they're appointed for life, but state and local, too) should be, like Caesar's wife, above reproach. The reality is that judges are no different than the rest of us.  Most are generally honest but probably break the speed limit on a regular basis, sometimes drink too much, maybe blow a little weed now and again, and probably take home a government issued pen or paper clip now and again for personal rather than official use.

Others likely cheat at cards and on their taxes.  They take hard drugs.  Maybe deal them.  They cheat on their wives and husbands, take bribes, extort campaign contributions and fix everything from parking tickets to rape charges.  And yeah, they beat their spouses.

They're also rude, intemperate, egomaniacal, power mad.  Some of them.

What to do?  What should they do?

Let's start with the obvious.  They should obey the law.  They should be ethical and honest.  If their impartiality could fairly be questioned in a case, or in all cases, they should recuse themselves.  If they can't do the job properly, they should resign.

But all that rather misses the point, and I think Judge Kopf's point.

Does the judge, any judge, have some special obligation to disavow himself of the protections of our criminal justice, or "(in)justice" as Paul Kennedy would say, system?  Is he ethically bound to plead guilty if he is factually guilty where the rest of the world is ethically free (and often wise) to make the prosecutor provide proof beyond a reasonable doubt of every element of the offense?  If convicted, does the judge have some obligation to refuse to appeal?

Must the judge who has committed any crime step down from the bench?  If the crime is malum in se rather than malum prohibitum (bad in itself rather than bad simply because some legislature declared it so), does that change the calculus?  Is the judge who isn't perfect fit to judge the imperfections of others?

Or do we actually honor the equal justice principles we ostensibly espouse?  Do we believe in paying one's debt and moving on, or are we committed to the scarlet letter and eternal punishment?

If Judge Fuller beat his wife, must he  be sent to the leper colony?  Does it matter why?  Does it matter how badly?  Does it matter if he was drunk or stoned or suffering a psychotic breakdown?  If she was?

Must the punishment be eternal banishment?  Should it be greater because he's a judge? Will that send a message?  Will the next person who's drunk or stoned or just out of control or just a mean SOB decide not to throw that punch because he'd heard a judge was stripped of his robe or sent to Siberia or locked up for a few days?  Weeks?  Months? Years?  

Or is the shame enough?  Most people charged with domestic violence crimes don't get their picture in the paper for it.  Most won't make news when their cases are resolved.  But the shame here.  Surely that's punishment enough.  Surely he's learned his lesson.  Hell, do we even need a trial.  Everyone already knows that he's guilty, regardless of whether he is.  He'll always be known as the judge who beat his wife, as a punk a brutalizer.  Reputation ruined.  No shot now at the court of appeals.  No chance he'll get any gold stars.  

So Judge Kopf asks,
What, if anything, should the judge do if he is guilty of assaulting his wife?
Right now, if there's a chance he's going to be found guilty, and there is (truth be damned), he should probably be getting into some anger management programs. 

Perhaps he should recuse himself from domestic violence cases, though as a federal judge they'd rarely work their way before him, and in any event, he's now been relieved of his entire docket.

Then he should do what any citizen should do when accused of a crime.  He should get a lawyer.  And he should see what happens.  Maybe he should go to trial.  Maybe not.  Maybe he should go to jail or prison.  Or spend 100 hours wearing a jump suit and cleaning rubbish from the side of the interstate under the watchful gaze of a Deputy Sheriff.  Or maybe he should behave himself on probation.  

Whatever should happen to anyone else who did what he did with a sentence based on the specific and individualized circumstances of the crime and of the criminal.

No more.  And no less.

And then he should, and should  be allowed to, get on with his life.


Friday, August 15, 2014

On Drug Dogs, Rafael Montero, Thalidomide, and Florida v. Harris

The Mets are going nowhere fast.  Terry Collins, the manager, said the other day that he expects them to be in the post-season.  Either he was either lying or he's delusional.  The team (and I'm trying to be gentle about this) sucks.

Their superstar hitter, David Wright, is slugging an anemic .384.  He's got a 13-game hitting streak going, but during the streak he's managed only once to hit for extra bases.  That was a double.  Still, and with more than a few glitches along the way, their pitching - especially their starting pitching - has been pretty good these last couple of months.  One of those glitches has been Rafael Montero.

Back in May, when Jenrry Mejia went on the DL, the Mets called up Montero from AAA Las Vegas where he'd been, as he had in the minors the year before, pitching brilliantly.  He bombed.  In 4 games he threw 20 innings, gave up 5 home runs, 13 runs altogether. He gave up 21 hits and walked 11. They sent him back down.

And he pitched brilliantly.  So when Jacob deGrom went on the DL, last week, they recalled him. 

He pitched 5 innings on Wednesday.  Gave up 7 hits.  Walked 2.  5 runs, three of them were homers.

Montero's still young, just 23.  It looks like he has all the talent you could want.  And maybe yet he'll prove to be the pitcher that he looks like he is when he's in the minors.  But maybe he's just what they call a AAAA player.  Too good for the minors, not good enough for the majors.   He wouldn't be the first.  

Take Brandon Wood.  Please.

In 2003, the Dodgers picked Wood in the first round of the draft.  After the 2005 minor league season where he hit a gaudy .321 with 43 homers, he was ranked the number 3 prospect in all of baseball.  Over 5 years in the big leagues, he amassed 272 at bats, a .186 average, and slugged .289.

Maybe these guys clutch.  Maybe they're just not as good as the signs suggest.  What we know that they don't perform when it really counts.

We all know people like that.  They look great until they actually have to do something.  Their test scores are terrific.  Great SAT's, LSAT's off the charts.  Top grades in law school.  Hopeless in the courtroom.  Nobody looked more like someone who should have been a Supreme Court Justice than Warren Burger.  And there was every reason to think that thalidomide was the ultimate cure for morning sickness.
In Florida v. Harris, the Supreme Court explained that for 4th Amendment purposes, what counts with a drug dog is whether he's properly trained or certified, not whether he proves competent in the real world.  Pass the tests in a controlled environment, Elena Kagan said, and he's reliable.  Fucks up all the time in the field?  Close to irrelevant.  The Florida Supreme Court had held otherwise, but they were, she said, wrong.  (Footnotes omitted, extra paragraph breaks added.)

Making matters worse, the decision below treats records of a dog's field performance as the gold standard in evidence, when in most cases they have relatively limited import. Errors may abound in such records.
If a dog on patrol fails to alert to a car containing drugs, the mistake usually will go undetected because the officer will not initiate a search. Field data thus may not capture a dog's false negatives. Conversely (and more relevant here), if the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all. The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate. Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver's person. Field data thus may markedly overstate a dog's real false positives.
By contrast, those inaccuracies — in either direction — do not taint records of a dog's performance in standard training and certification settings. There, the designers of an assessment know where drugs are hidden and where they are not — and so where a dog should alert and where he should not. The better measure of a dog's reliability thus comes away from the field, in controlled testing environments.
For that reason, evidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert. If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog's alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs. After all, law enforcement units have their own strong incentive to use effective training and certification programs, because only accurate drug-detection dogs enable officers to locate contraband without incurring unnecessary risks or wasting limited time and resources.
This is, of course, nonsense.  The best test of whether a drug dog is in fact reliable is whether the dog is in fact reliable.  

Before the Mets game Tuesday, General Manager Sandy Alderson said Montero was picked as the guy to fill deGrom's spot in the rotation was based on merit.  You know, he tests well.  Alderson thought so before, too.  Of course, baseball doesn't have a Supreme Court to explain that superstars are determined not be how well guys play in the majors but by whether they were great in the minors. 

Monday, August 11, 2014

Really, It Was the Other Guy

Whatever you think of the criminal justice system, it suffers from an unavoidable flaw.  It's operated by human beings.  That means it won't be perfect.

Whatever ought in some platonic sphere of ideal justice (whatever that might be), it won't always be what gets meted out.  Some folks will be treated more harshly than they should.  Others more leniently. Some number of factually guilty people will walk free because, for whatever reason, the jury didn't find the evidence sufficiently compelling.  Some number of factually innocent people will be convicted because, well, shit happens.

And that's with all the good will and honesty and integrity and competence and resources and . . . . You get the idea.  Because human beings are, well, human.  They're imperfect.  They're gonna fuck it up sometimes even when they do their best.

But, of course, it's not all good will and integrity and everyone doing the best they can.  Some of the folks involved - cops, witnesses, experts, prosecutors, defense counsel, judges, jurors - are dishonest.  Some are lazy.  Some are incompetent.  Some are just venal.

Sometimes there are no resources or no time.  There are political considerations even when they're denied.  There are prosecutors who cheat, judges who place their foot on the scales, incompetent defense counsel, and jurors who just by-God don't believe that innocent people can get charged with crimes. 

And there's simple human error.

All of which is why some number, and despite educated guesses nobody really knows what number, of factually innocent people end up on death row.  Some of them have been exonerated.  But there's no basis other than a fond wish for thinking that ll of them have, that we've found and corrected every mistake.  

Here's the math.  If we execute enough people, it's a statistical certainty that we'll sooner or later execute someone who just didn't do it.  Opinion polls make clear that most people think we've already done it, even if they don't have an instance they can point to.

Oh, we've got likely suspects.  There's Cameron Todd Willingham, of course.  And Ruben Cantu and, OK not Roger Coleman, but - you get the idea.  And then there's Carlos. 

February 4, 1983.  Wanda Jean Vargas Lopez was savagely attacked, stabbed to death, at a gas station/carry out in Corpus Christi, Texas. 


Carlos DeLuna was tried, convicted, and on Pearl Harbor Day in 1989 he was executed for her murder. He always insisted that he didn't do it.  It was, he said, another Carlos, Carlos Hernandez, who murdered Lopez.  Prosecutors maintained there was no such person as Carlos Hernandez.  They maintained that, even after Carlos Hernandez was arrested for the vicious murder of Dahlia Sauceda.


There have been questions about the case for years.  In 2006, the Chicago Tribune published an exhaustive study which strongly suggested that it was Carlos Hernandez who killed Wanda Lopez. Now there's The Wrong Carlos: Anatomy of a Wrongful Execution,* and you can decide for yourself.  

Jim Liebman, a professor at Columbia Law School, along with the Columbia DeLuna Project (Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White, and Daniel Zharkovsky) have produced a stunningly detailed and documented study, written plainly,** and supported by a website containing documents, photographs, transcripts, timelines, you name it.  Here's the data.  Make of it what you will. 

And what you will, if you bring any objectivity to it all, is that the title is exactly right.  They killed the wrong Carlos.

Start with the cover.  That's Carlos DeLuna almost certainly innocent but still killed for the crime, on the left.  On the right is Carlos Hernandez, who's pretty clearly the one who murdered Wanda Jean Lopez.  And got away with it.

How did it happen?  Liebman and company tell that, too.  It's a tale of sloppy investigation, a rush to judgment, dishonest prosecutors, incompetent and overburdened trial counsel, a judge who denied time and resources, and terrible luck.  It is, in other words, a perfectly ordinary story.  Except for the thing of cheap fiction - a second Carlos who's almost a, er, dead ringer for the first.

It's the ordinariness that rivets.  The authors come close to saying that at one point in their Epilogue.
[A] book permits an anatomy of not only a single obscure murder, but also the ensuing criminal investigation, trial preparation, two-part capital trial, multilayered appeals and botched execution in a case whose very obscurity makes it a far better representation of what usually goes on in criminal cases than do the facts and proceedings in more notorious and idiosyncratic cases, such as those of Nicola Sacco and Bartolomeo Vanzetti, Julius and Ethel Rosenberg, O.J. Simpson, William Kennedy Smith, and George Zimmerman's self-defense acquittal after killing Trayvon Martin.
But there's more.  It's not just that this shows something of what's more typical than the cases that usually make the headlines.  It's that if it was this easy for them to get the wrong Carlos, convict him with what the courts like to call "overwhelming evidence," and then execute him - if they could so simply fuck it up and kill the wrong Carlos, how often do they do it.  

If this is typical, my god.

Of course, sloppy investigations, cheating prosecutors, lazy or incompetent defense counsel don't necessarily mean fundamental mistake.  It's a pretty safe bet (though there's no way of actually knowing the correct answer) that the vast majority of folks charged with capital crimes are factually guilty of something at least close to the crimes they're charged with.  But if there's no meaningful check on the system - and all too often there isn't -- then with the best will in the world, they're gonna get it wrong some of the time.

the Wrong Carlos is a powerful, fascinating story.  It's a helluva read.  And it oughta give you nightmares.



-----------------------
*My thanks to the good people at Columbia University Press who sent me a copy to review.

** That's important to say.  Anyone who's listened to Jim Liebman speak or dipped into his treatise on habeas corpus knows that he can be difficult to understand when he gets into LawProf mode.

Tuesday, July 29, 2014

It Seems Competence Isn't Enough

Turns out that it wasn't incompetence.  Which is maybe the bad news.  AP reports.
Intravenous lines were placed correctly during the execution of an Arizona inmate whose death with lethal drugs took more than 90 minutes, a medical examiner said Monday.
Incorrect placement of lines can inject drugs into soft tissue instead of the blood stream, but the drugs used to kill Joseph Wood went into the veins of his arms, said Gregory Hess of the Pima County Medical Examiner's Office.
That's happened before.  Most recently, apparently, in Oklahoma where the folks trying to kill Clayton Lockett missed the veins and pumped the drugs into his body tissue.  It didn't work, and, if the reports are accurate, he died of a heart attack after they gave up for the day the effort to kill him.  It's not all that surprising that they screw up that way.  The killers, after all, aren't medical professionals.  They aren't anesthesiologists.  They're prison guards.

And all too often they demonstrate, as they did in Oklahoma in April, and as they have several times in Ohio, that they're incompetent.

But not in Arizona.  Not this time, anyway.  Not for Joseph Wood last week  Nor for Dennis McGuire in Ohio back in January.

They did what they were supposed to do.  Followed orders to stick needles in the veins and pump them full of drugs that will kill.  And yet.
Hess also told The Associated Press that he found no unexplained injuries or anything else out of the ordinary when he examined the body of Wood, who gasped and snorted Wednesday more than 600 times before he was pronounced dead.
An Ohio inmate gasped in similar fashion for nearly 30 minutes in January.
So what happened?  What is it that led to the cock ups in Ohio and Arizona? 

I mean, this shit is supposed to work.  That's the promise, after all.  No, we're not experimenting with new murder techniques.  We're using top medical advice for clinical executions.  Sure we can't use the drugs we want because nobody'll sell them to us.  (And what's wrong with those drug manufacturers that want their drugs to be used for healing not killing?)  But these are supposed to be just as good. Midazolam followed by hydromorphone.  The combo in Ohio and Arizona.  

And see, there's the answer.  Because if it isn't incompetence, then it's the drugs.   Which are, after all, third string.  Plan C, as it were.

Tennessee's bringing back the chair which states stopped using because it was sure as hell looking like the courts were all going to start finding the chair to violate the 8th Amendment's prohibition against cruel and unusual punishment.  

Other states are talking about the firing squad or maybe hanging.  Maybe it's time to return to drawing and quartering?  Or crucifixion.

Because if the horrors of what happened to Joseph Wood and Dennis McGuire weren't due to incompetence, then there's a bigger problem.  

Even when we know what we're doing, it doesn't work. 

One Here, None There

The story in today's Times begins this way.
Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts.
It's a powerful story of a federal judge in Brooklyn (John Gleeson) committed to doing something about an absurdly harsh sentence he was forced by law to impose, the lawyer he appointed (Harlan J. Protass) to represent Holloway finding a couple of similar situations in Montana, and a US Attorney (Loretta E. Lynch) who bowed (one senses grudgingly) to decency.

What happened is that Holloway was charged with three carjackings over the space of several hours.  In each case, his co-defendant had a gun.  Because he went to trial and got convicted rather than cut a deal and plead guilty, those guns in the co-defendant's hands ended up costing him decades.  As mandated by Congress.  

Mr. Holloway’s 57-year term was more than twice the average sentence in the district for murder in 1996, the year he was sentenced.
Anyway, Judge Gleason did some strong arming, the prosecutor agreed to vacating a couple of the carjackings, and Holloway will be sentenced today to time served and released to the custody of the New York State prisons where he'll be eligible for parole in about 9 months.

It's a good thing.  And I don't really want to sound grudging about a case where everyone did the right thing.  But you know

Here's the thing.  There are hundreds, probably thousands of men and women (mostly men) in state and federal prisons serving sentences that are, by any rational standard (as distinct from, say, the Otis/Scheidegger standard) absurdly long.  There are thousands of men and women who've had their lives ruined, who've lost their families (and functionally their lives), whose families have been torn apart because we've chosen to make everything a crime and to lock up as many people as possible for as long as we can possibly lock them up.  There are thousands of men and women we release on the street, denied an opportunity to get an education or housing or employment, but ordered to become productive members of society or go back into the slammer.

Judge Gleason is a fine judge who's done good things before and surely will again, but really there isn't much he can do except in individual cases.  Harlan Protass may be a great lawyer, but really there isn't much he can do except in individual cases. And then there's Loretta Lynch, about whom I know absolutely nothing but that in this one case she was pushed and shoved and finally did a truly decent thing she didn't have to do.

I have no reason to doubt Lynch's basic decency and sense of fairness.  But I have to notice that just as our clients are all better than the worst things they've done, so Ms. Lynch is probably nowhere near as noble as the best things she's done.  The judge, as I say, can really only act in individual cases.  Defense counsel can only act in individual cases.  The prosecutor, though, she gets to set (yes, within bounds and with some constraints, but nevertheless) policy.

So Good for Francois Holloway.  And good for it working out.  But he's just one guy.  Of the thousands. And thousands.  

Loretta Lynch could change office policy.  Congress could act.

One can hope.  

Hope, of course, is the thing with feathers.  As, it appears, were the dinosaurs.

Friday, July 25, 2014

Is It Really Botched If He Ends Up Dead?

An hour and 57 minutes.

He gasped some 650 times for all but the last 17 minutes or so.

They gave him the fucking drugs a second time because, well, who knew if he'd ever die.

It was torture said John McCain who knows a thing or two about torture.

Smooth sailing said Jan Brewer and the AG and Kent Scheidegger and a spokesman for Arizona's DOC who all declared, with the certainty of the ignorant, that he was sound asleep through the whole thing and felt absolutely no pain or discomfort even if it took longer than they'd expected.

The family of his victims complained that it wasn't nearly ugly enough, and how dare people wish it were easier on him.

What if the federal judge had ordered it stopped and him revived?  Could they have done it? Apparently, they could have.  And could they then have tried to kill him again?  Nina Totenberg pointed to Ohio where the Supreme Court has agreed to answer that question in Romell Broom's case.

Like Ohio, and like Oklahoma, and like every other state where lethal injections go horribly wrong despite repeated declarations that it was all cool, they'll investigate and review.  And like all those states, they'll guarantee that the investigation will be independent because it will be conducted by the same people who ordered and carried out the killing.  Inspector, investigate yourself.

And like those states, and Missouri and Georgia and Texas and Louisiana and everywhere else, they'll explain that it's vital that they kill and insist that the who and how and where they get the drugs must be secret.  Because the people demand killin' but would stop it if they knew who was involved.

We once executed at high noon.  In the town square.  So the people could see the consequences and learn.  The killing was to be as John Bunyan says in a different context in Pilgrim's Progress, both "caution and example."  But of course the people partied.  And the pickpockets thrived.  

So they moved it inside.  Hidden away.  Did it at midnight.  Away from the throng, which just wouldn't learn.  And then earlier in the day, because why pay overtime or force the killers to miss time with the wife and kids afterwards?

I've said before that if we're going to do this, we should own up to it, give up the pretense of gentle killing and necessary murder.  Forget the ban on cruel and unusual punishment.  Admit that it's by God murder.  Have them tied down and gnawed to death by rats in Yankee Stadium. Put it on pay per view. Then we'd have to allow that it's no more than revenge.  Really just blood sport.  

Alex Kozinski, Chief Judge of the Ninth Circuit, dissenting from that court's refusing en banc review of a decision of a panel of that court staying the execution so that Wood could get information about the drugs Arizona was going to use and where they came from and like that so he could determine whether his killing would likely prove to be torture (citation deleted, emphasis added). 
Whatever happens to Wood, the attacks will not stop and for a simple reason: The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. See  But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.
If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply. And nobody can argue that the weapons are put to a purpose for which they were not intended: firearms have no purpose other than destroying their targets. Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn't be carrying out executions at all.
He's OK with that splatter.  I'm not.  But then, I'm opposed to the whole enterprise.  We're better than that.  Or we're supposed to be.  That's why we hide it.  Why we pretend to medicalize.  Why it's supposed to be kinder and gentler.  Really, this is for your own good.

Which is, of course, bullshit.

His name was Joseph Wood.  He was murdered by the State of Arizona.  It took an hour and 57 minutes.  He gasped some 150 times during all but the last 17 or so of those minutes.  They had to drug him a second time.  They said it all went really well.  They lied.