Procedure Uber Alles

By this time tomorrow, William Garner will likely be dead.  He'll have been murdered by a team of prison guards at the Southern Ohio Correctional Facility in Lucasville.

There is, apparently, no question of whether he did, in fact, set the fire (or fires) that resulted in the deaths of five children.  He says he didn't intend their deaths (the state says otherwise), but he's lost that argument.  Either way, he bears responsibility for their deaths.

The question, though, is what sort of responsibility we're talking about.  And what's an apt response.

Maximum and death, says the state, of course.  That's why we're here today with another killing (the 6th as a consequence of the fire) intended (no question about that this time) for tomorrow morning at 10.

But you know, questions of responsibility and our response to the crime are worthy of serious consideration.

So here's what else is out there.  Garner is what they used to call "slow."  At the time of the crime, his lawyers claim and the state does not dispute, his mental age was, and remains today, around 14.  Now, we know that the Constitution prohibits the execution of those under 18.  (Roper v. Simmons.)  So does Ohio's death penalty statute.  (Ohio Revised Code Section 2929.02(A).)

The courts have interpreted both those provisions to refer exclusively to chronological age rather than mental age, but that's frankly senseless.  In fact, chronological age in this context is a proxy for mental age.  It's easier to check, surer to determine.  But we don't kill kids because it's wrong to hold those with insufficient maturity to control, understand, and appreciate fully responsible for their acts.  

Similarly immature adults should be treated the same.

Garner asks the Supreme Court of Ohio to agree.  At least, fairly to consider the question.

The state urges the court not to.  Why?  Two reasons:  The courts have never bought the argument before, and anyway, there's no proper procedure for the courts to decide the case.

You know, it gets tiresome.

Yes, there is a virtue to finality.  Things should be concluded.  Of course.  Enough is enough.  Yup.  Delay for the sake of delay.  Nah.

But there's finality and finality.  And there's nothing more final than what Ohio has planned for tomorrow morning.  Once that's over, it'll be too late to reconsider an ill-conceived rejection of the relevance of mental age, too late, at least, for Garner.

So why not pause and do it right, while there's still time?  Because procedure says he should be killed regardless of the merits of his claim.

When procedure becomes fetish that substitutes for good sense, fairness, and human decency, procedure becomes an outrage.  We saw it last week when the Ninth Circuit held in Lee v. Lampert that procedure trumps factual innocence.  Garner's case isn't about innocence, so maybe it's less stark.  But it's just as real.

Justice-to-be Kagan, in a rare moment of candor, acknowledged that being a judge sometimes involved judging things.  Being a justice on the Ohio Supreme Court, too.

Now's a chance guys.

Go for it.

UPDATE
To what I assume is nobody's great surprise, but to the deep disappointment of some of us, the Ohio Supreme Court has refused, without explanation, to hear Mr. Garner's appeal and argument.
One step closer to murder.