Tuesday, October 6, 2009

PERSPECTIVE: The Killing (To Resume Soon?) State

What's next?

We've got a breather here, though it may not be much of one. Officially, it's two men long and lasts only until December 8 when Ken Biros is still supposed to be killed. Doug Berman's calling it a "mini-moratorium," and if it really only lasts that long it's hardly worthy even of that name.

Romell Broom's re-execution (a term you don't find many opportunities to use) is on hold until after Judge Frost rules after a hearing at the end of November. Ken Biros (scheduled to be killed in December) and, it now appears, Lawrence Reynolds (March 9 is his new execution date) are going to be part of that hearing, too, though only Broom will have the claims about trying to kill him twice.

While everyone prepares for those hearings and whatever comes out of them, litigation on other fronts is ongoing.

The Ohio Supreme Court today ordered the Attorney General to respond to Broom's petition for a writ of habeas corpus. Broom asked that court to prohibit further efforts to kill him. Don't hold your breath. On the other hand, we're in something very close to uncharted legal waters here. Remember, the only other time an execution failed so badly that they just gave up one day was 16-year-old Willie Francis in Louisiana in 1946. In that case, and after the Supreme Court gave the go-ahead, in a decision with no serious precedential value today, they killed him.

Then there's Lawrence Reynolds. The Sixth Circuit's 2-1 decision yesterday to order a stay and remand the case for a hearing before Judge Frost is only partially mooted by Strickland's reprieve. The reprieve effectively moots the stay unless Judge Frost takes till after March 9 to decide, which is possible but hardly the sort of thing anyone would be counting on. On the other hand, the remand for hearing before Judge Frost remains effective. So Reynolds is back - or is he?

Press reports indicate that before the Governor granted the reprieve, Attorney General Cordray had filed in the U.S. Supreme Court to lift the stay imposed by the Sixth Circuit. As of this writing, the Supreme Court website doesn't have any indication of that on its docket. But Law Dork, in this important post includes a link to the AG's filing. And according to the New York Times,
In a statement issued late Monday, Mr. Cordray said the appeal would continue despite the governor’s decision to postpone the executions.
Law Dork points out (here) that other comments by Cordray indicate that he's an enthusiastic supporter of executions whose main concern about the death penalty is that we don't kill enough people. So it seems he's pushing for broad authorization to shut down the whole LI debate in Ohio. What's interesting is that if the Court were to agree to hear some broad-based challenge it would probably grind executions in this state to a halt for a while. So maybe he just wants a quick ruling that the Sixth Circuit had no right to grant a stay, which would probably end other Sixth Circuit stays based on Broom, but might have no broader consequence.

In any case, and I should note that I have no particular track record on these predictions, it seems unlikely that SCOTUS will step in to declare unproper a stay which has been effectively mooted. In fact, it's not clear that the Court would really have the authority since there's no longer a case or controversy on that to resolve.

That's just what's readily going on in the courts.

Meanwhile, Alan Johnson has a story in the Columbus Dispatch on just what is cruel and unusual punishment in violation of the 8th Amendment in which he quotes a few of the comments to earlier stories. It's ugly out there.

And then, of course, there's the ongoing study by Ohio officials about how to do things differently. Well, maybe there's a study. Strickland says that DRC has been working diligently on a back up plan since they failed to kill Broom. There's absolutely no other evidence that it's true, and there's good reason to believe that they've done nothing. Certainly, they've been remarkably quiet about anything they have done. But let's consider.

The reprieves were obviously the right thing to do. It would be, at best, embarrassing to carry out executions while the courts are actually reviewing the question of whether the last execution was so badly screwed up that future executions would be unconstitutional. Of course, Strickland didn't say that was the reason for the reprieves (and maybe it wasn't). What he said is that DRC is trying to come up with a back up plan.

OK, every system should have a back up of some sort. According to Judge Sutton of the Sixth Circuit channeling Cordray's office, the Ohio protocol calls for stopping the execution if they can't make it work in two hours. In fact, the protocol calls for a huddle when and if they decide they're stuck. And it allows them to quit at that point. Essentially, the protocol says, "We'll cross that bridge when we come to it."

But this is a plan about killing. You know, when murder method A doesn't work, go on to murder method B. That's stark. And Strickland says they're making great progress in finding a method of lethal injection that doesn't involve lethal injection:
Since September 15, Department personnel have diligently researched a range of potential back-up or alternative procedures for lethal injection that would comply with Ohio law. Although they have made substantial progress in this regard, more research and evaluation of back-up or alternative procedures is necessary before one or more can be selected. In addition, the selection of a back-up or alternative procedure will require training and other preparation by the Department in order to incorporate it fully into the Department’s lethal injection protocol.
So it's hard to find and hard to implement, but they're making great progress - which I assume means they've decided that lethal injection by insertion of a urinary catheter is off the table as an option. At least I hope so.

In any event , there's now at least and at last there's some acknowledgment that our system needs help. But it needs it quickly. By insisting in his reprieve order that Biros should still be killed in December (Judge Frost may have something to say about that), Strickland has put a strict limit on how long they can take to find and implement a new method.

An AP report from this morning says that they're
considering using lethal injections into inmates' bone marrow or muscles.
The report also says "that everything is on the table," which pretty much means that nothing is. (Maybe they will result to the catheter.)

It keeps coming back to this: The desire to kill runs up against the difficulty in killing. I know I'm being naive here, but you gotta ask if it's worth the effort. In that context, it's important to note that some politicians are willing to jump into the fray and take a real position.

Jennifer Brunner, the Secretary of State who's running in the Democratic Primary against Lee Fischer in the hope she'll get to run for the Senate next year, published this piece in the Huffington Post right after the Broom fiasco. The death penalty should be ended, she says, and certainly we need a moratorium. In Massachusetts, Democrats running for Ted Kennedy's seat in the Senate are arguing about who's more sincerely committed to abolition.

And it's not just the Democrats. Travel down to Texas and you'll find Senator Kay Bailey Hutchison, running in the Republican primary for governor against Rick Perry, taking him on over effectively shutting down the commission that was about to hear and review the evidence that Cameron Todd Willingham, executed in 2004, was factually innocent:

I am a supporter of the death penalty, but I also believe that 100 percent of the people who also believe the death penalty is a deterrent think we need to have all of the evidence and all of the technology to assure that when such a punishment is given that we have all of the evidence and the capability to assure that the person is guilty.

I definitely disagree with the governor changing the commission just before the hearing that would perhaps lend some light on the technology that would determine whether arson was a factor.

It's another case where the governor is trying to maintain a loyalty to him but not to the responsibility person on the commission had taken to the people of Texas and our judicial system.

Ya think?

So maybe a tide is turning. Maybe it's time. A little political courage might go a long way right about now.

Start with this: It's not about equivalence. We're not willing to match what they did. Once we abandon that pretense, we can give up the whole killing thing. Murder is murder.

Sometimes it really is that simple.

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