Wednesday, July 13, 2011

It's So Unappealing

From the moment Judge Frost granted the stay last Friday the question had been what the Sixth Circuit would do.
It was, after all, a given that the state would appeal.
This wasn't about Kenneth Smith, after all.  Oh, sure, it was his execution set for July 19 that Frost stopped.  But what he said has broad application.
It is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not. This is nonsense.
That's not just Kenneth Smith.  It's the whole charade.
Ohio’s execution policy now embraces a nearly unlimited capacity for deviation from the core or most critical execution procedures. No inference is required to reach this conclusion, much less the stacking of inference upon inference. Rather, as set forth below, simply paying attention to the hearing testimony mandates this conclusion. These core deviations are not mere cosmetic variations from an optional or even aspirational set of guidelines. Rather, the deviations are substantive departures from some of the most fundamental tenets of Ohio’s execution policy.
That's not just Kenneth Smith.  It's the whole charade.
The perplexing if not often shocking departures from the core components of the execution process that are set forth in the written protocol not only offend the Constitution based on irrationality but also disturb fundamental rights that the law bestows on every individual under the Constitution, regardless of the depraved nature of his or her crimes.
That's not just Kenneth Smith.  It's the whole charade.
A death warrant cannot trump the Constitution.
That's not just Kenneth Smith.  It's the whole charade.
Carefully, systematically, never straying from the stipulations and exhibits and testimony, Judge Frost dismantled Ohio's execution process, exposing it as "irrational" as "arbitrary and capricious" as "haphazard."
The opinion is, frankly, devastating.
And while it addresses Smith, it applies across the board.  Everyone set to be executed is likely to be a victim of this standardless, make-it-up-as-you-go-along process.  The Constitution may permit executions, Frost says.  It doesn't permit them by ad hoc procedure.
But if that's what we do, what we have done, what we will do, then not just Smith's but everyone's should be stopped.
So the question was plain.
What will the Sixth Circuit do?
Now we know the answer.  The court of appeals will do nothing because Ohio isn't asking them to step in.  Mike DeWine, our Attorney General, said he's not appealing.  From Alan Johnson in the Columbus Dispatch.
Ohio Attorney General Mike DeWine told The Dispatch that while he disagrees with U.S. District Court Judge Gregory L. Frost's decision, "the state is going to take that decision and follow it and make revisions and comply with it.
"Once that is done, I would anticipate that the state would go back to Judge Frost."
So they're going to take a protocol that they don't think is binding and that they ignore at whim and then revise it.  And then ask the Judge to say it's fine.
Or something like that.
I don't know how it will work.  But I know that there's a fair chance Brett Hartman won't actually be killed August 16.  And maybe not Billy Slagle in September or Joey Murphy in October.
Or maybe.
My track record at predicting when there'll be a stay and when it will hold up is marginally better than my record at predicting presidential elections (put your money on the guy I think will lose), but only marginally.
But if I can't tell you with confidence who will be killed when, I can tell you that Frost's decision will echo.  Because ultimately Ohio is no different from the other killing states.  We care more about getting it done than getting it right.  And if it's unconstitutionally random here, it's pretty certain to be there.
All they need is the evidence.
And a judge who'll follow the Rule of Law rather than the Law of Rule.

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