Tuesday, May 17, 2011


"[T]he Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane." Ford v. Wainwright, 477 U.S. 399, 409-410, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). The prohibition applies despite a prisoner's earlier competency to be held responsible for committing a crime and to be tried for it. Prior findings of competency do not foreclose a prisoner from proving he is incompetent to be executed because of his present mental condition. Under Ford, once a prisoner makes the requisite preliminary showing that his current mental state would bar his execution, the Eighth Amendment, applicable to the States under the Due Process Clause of the Fourteenth Amendment, entitles him to an adjudication to determine his condition. These determinations are governed by the substantive federal baseline for competency set down in Ford.
That's the first paragraph of Justice Kennedy's opinion in Panetti v. Quarterman, and it's pretty much unexceptionable.  (Which is not to say that everyone agrees.  Nobody much thinks it's OK to kill people who are sufficiently insane, though there's disagreement about whether the prohibition is constitutionally based.)
The "substantive federal baseline" from Ford really comes from Justice Powell's concurring opinion in that case.
I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.
When you get past the quibbling, the idea is that if the about-to-be-killed person doesn't know or understand that he's being killed for doing something bad, then there's really no disguising the fact that killing him will be nothing more than revenge and blood lust.  And we hate admitting that.
Raising Ford claims is hard for all sorts of reasons, not least that the question is whether the person is incompetent to be executed at the time of the execution.  That is, it's basically a last minute claim, and courts hate those.
Which brings us to Danny Bedford.
As I type this, it's 1:19 in the morning on May 17.  Just under nine hours from now, at 10:00 a.m., the good people of the State of Ohio intend to murder him.  
His lawyers say he's Ford incompetent and they need a stay in order to prove it.
They've been arguing his mental problems for a while now.  They told the Parole Board he was too crazy to kill.  On April 13, the Parole Board said he should die.  They asked for a stay from the Ohio Supreme Court and tried to appeal lower court denials.  On May 13, the Governor said he should die.  On May 10, 11, 13, and 16, the Ohio Supreme Court refused to grant stays. (I'm not bothering with links, they're denials without comment.)
Like I say, it's a tough sell.
Around the state, everyone was getting ready.  Vigils were announced, guards were preparing.  Bedford was moved to the Southern Ohio Correctional Facility at Lucasville where the killings are done. He was offered a last meal.  He asked for a 2-liter bottle of Coke.
But Monday afternoon, with less than 24 hours to go, U.S. District Judge Algenon Marbley granted a stay.  Give Bedford a chance to make his showing.
Lots of sighs of relief, but no rest for Beford's lawyers.  The Attorney General appealed to the Sixth Circuit.  We have to kill, he argued.  Marbley shouldn't have stopped it, he said.
Sometime around 10:30 Monday night, the Sixth Circuit ruled.  Kill him.  Now.
Bedford's lawyers announced - to nobody's surprise - that they were going to the Supreme Court.  If the Circuit had agreed with Marbley, the state would have gone there.  It's been clear for a while that this would be their call, that they'd finally decide.
Justice Brennan, it's said, used to hold his hand up in front of his new law clerks.  "See this," he'd say waving around his fingers.  "Around here, with five votes you can do anything."  And if you can only muster four votes, there's not much you can do.
Scalia, Thomas, Alito, Roberts.  You know how they're going to vote.  You don't know with absolute certainty about the rest.  But I'll take a stab at it.  Bedford doesn't get more than 2 votes for life.  And he probably doesn't get 2.  Or I could be wrong.
Feel whipsawed?
Kill, kill, kill, kill, kill.
Fortunately, there's nothing cruel or unusual in that (certainly not unusual, alas).
I assume the Court will decide sometime between 9 and 10 in the morning, 7 or 8 hours from now.  But I could be wrong about that.  I have no inside information, no secret sources.
All I can do is wait.  Check the news again and again.
* * * * *
Meanwhile, the plan to repeal the death penalty in Connecticut has ground to a temporary halt because Dr. Petit has convinced a couple of state senators that they shouldn't vote for repeal until after the second alleged killer of his family is convicted and sentenced to die.  Edith Prague, who, as Gideon explained,
was for the death penalty before she was against it, before she was for it again, but only for one man,
 offered her own explanation.
The death penalty is always wrong and should be abolished, but it would be a shame to deny Petit the right to his revenge so for his sake I'll support killing one itsy bitsy more person.  Then we can abolish it.
And did I mention that I'm a little bit pregnant?
OK, she didn't say that pregnant part.  And the rest of it is my words, not hers.  These are her words, as reported by Hugh McQuaid of CTNewsJunkie.com.
They should bypass the trial and take that second animal and hang him by his penis from a tree out in the middle of Main Street.
Uh, yeah.  Sure.
(Gideon has the details here and here.)
* * * * *
Probably 12 or 13 years ago, I was arguing an appeal.  The issue involved a statement by the judge indicating that he viewed the defendant as a monster and treated him at trial accordingly - not according to the law, but according to his view that the guy was a monster, with bias and prejudice.
A judge on the court of appeals asked me,
But wasn't the judge just telling the truth?
I suppose that the judge thought he was.  But our system insists that his personal view of the defendant's monstrousness wasn't a proper basis for his legal rulings.  He had to be impartial.  Of course, judges act on improper considerations all the time (by which I mean "frequently," not really "all the time").  Bias isn't all that unusual.  It's just mostly better hidden. I told the judge,
Some things, you aren't allowed to say.  He may have believed it, and may have acted on it, but the law doesn't allow it, so if he admitted it, he acknowledged that he wasn't following the law and was biased.  It's never acceptable.  This is just the rare case when we have hard evidence.
* * * * *
Edith Prague's idea of what to do with Joshua Komisarjevsky is an example of the blood lust and revenge that we're don't admit we want.
Danny Bedford will or won't be murdered later this morning.

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