The immediate prospect of being hanged

I'm back. After nearly a week of concentrated brief writing that left little time for sleep and none at all for the blog.

Things have calmed down now with the Broom execution on hold for a few months. The TRO has been extended, at Broom's request and without objection, until November 30. Even if it's lifted that day, Ohio will be unable to go forward with the execution until the Ohio Supreme Court sets a new execution date. This gives us time to step back and gain some perspective. But it also raises serious questions for Lawrence Reynolds and Darryl Durr.

Reynolds and Durr are the guys Ohio plans to kill next. The aggravated murder of Reynolds is scheduled for October 8. Durr's murder is to occur November 10.* That means, if the state has its way with them, that both will be dead before there's a ruling from Judge Frost.

So what? Some would ask. At Crime and Consequences, Kent Scheidegger calls the"pinpricks" Broom experienced a "preposterous basis for further delay." He'd wondered earlier if the arguments against trying again to kill Broom was "the worst argument ever made to a court of law."

Yet it's got legs. Whatever Scheidegger might think, the court seems to be taking it seriously, as does the state. And Ohio's Secretary of State - and candidate for the Senate in 2010 - just published a long commentary that rambles almost as much as some of my blog posts (though mostly without the asides, if you don't count the stuff about her daughter) taking off from the Broom botch to assail the death penalty itself.

And then there's Reynolds and Durr.

Imagine you're Reynolds. You've been told the date you are to die. You've been told how.

Sit there in that cell and wait. You're fine. It's payback time. Two months now. Remember. Six weeks. We'll be watching you. Five weeks. Then we kill you. Kill. Like a dog. Four weeks. We're gonna get you. You'll get yours. Three weeks.

Oh, but hey, it's OK because it'll be painless. We'll see to that. Quick and painless. We know how to do that. We're good killers. And we'll give you a double cheeseburger the night before. Two weeks. October 8.

You half believe and half don't. You're trying to make sense out of this. But you've heard the tales. You know there have been problems. Hell, you've been trying to get some traction on your lethal injection litigation for years. But now this. Now you face the prospect that it's a massive, unintended joke. That they'll put you through it multiple times. That each will be more painful than the last.

While you wait.

In that cell.

The punishment isn't just death, after all. It's the wait and the knowledge, the certainty and the uncertainty. Albert Camus wrote:

What then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? For there to be an equivalence, the death penalty would have to punish a criminal, who had warned his victim of the date at which he would inflict a horrible death on him, and who from that moment onward had confined him at his mercy for months. Such a monster is not encountered in private life.

He's probably wrong about who you might meet in private life. I've had clients and know of others who did things that would curl your toenails. But it's not supposed to be a sadism contest. We say we're better than that.

It's even worse for Broom, of course than it is for Reynolds or Durr. But he's got a break for a bit. It was Samuel Johnson who observed that "the immediate prospect of being hanged concentrates the mind wonderfully."

Or terribly.

And so, if you're Reynolds, you wait.

And nobody's talking about you.

And you're in that cell.

And they promise it will be painless. And quick.

But how can you believe them?

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*Yes, I know it seems a harsh thing to use the word "murder." But it's exactly right. Ohio Revised Code Section 2903.01 defines the offense of Aggravated Murder (Ohio's only capital offense). There are a number of different ways to commit that offense, but here's the statute's first prohibition:

No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another’s pregnancy.

Well, when they strap you to a table, stick needles in your arms, and inject you with drugs with the specific intent that you will die, that's purposely and with prior calculation and design causing the death of another. And that's Aggravated Murder.