Thursday, February 9, 2012

Can You Spell "Moratorium"?

Damned if I know what happens now.
Last July, the Honorable Gregory Frost, U.S. District Judge for the Southern District of Ohio, heard extensive evidence of how Ohio actually went about executing people.  The evidence revealed, as he said in the first paragraph of his opinion,
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.
It's also unconstitutional, he said, in violation of the Equal Protection Clause of the Fourteenth Amendment.  The state, he said, had to stop saying that its protocol was binding and actually treat it as binding.  It would, that is, have to start obeying its protocol.
More precisely, though he didn't say this, the state had to convince him that it would actually obey its protocol.
And he enjoined the execution of Kenneth Smith.
As I wrote at the time,
The Rule of Law, not the Law of Rule.
And, oh yeah.  The truth.
In response, the state cooked up a new protocol.
In November, after more hearings, Judge Frost concluded that the state had got religion.  The new protocol comported with the 8th Amendment, he said (as he thought the previous one also did), but it also had enough built in safeguards and assurances that, he thought, it would actually be obeyed.  Hell, it had a special procedure for deviations. And so the execution of Reginald Brooks went forward.
And the state disobeyed the protocol and ignored the special deviation procedure.
Ohio’s failure to stand by its representation that all possible deviations flow up to the Director means that, once again, “[i]t is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not. This [remains] nonsense.”
And he enjoined the execution of Charles Lorraine.
As I wrote at the time,
"Fool me once," the saying goes, "shame on you.  Fool me twice, shame on me."
Judge Frost has now been fooled twice.
This time, the state appealed.  It didn't argue that it had obeyed the protocol.  Too late for that.  Instead, it argued that it didn't have to obey the protocol in detail.
Close enough for government work.  Surely all that the government has to do is have a constitutional protocol.  It doesn't actually have to obey it.
Or maybe it does.
The 6th Circuit put it this way.
As the district court found, whether slight or significant deviations from the protocol occur, the State's ongoing conduct requires the federal courts to monitor every execution on an ad hoc basis, because the State cannot be trusted to fulfill its otherwise lawful duty to execute inmates sentenced to death.
Which is really quite an extraordinary statement.  But then judges don't take it well when they catch someone lying to them. 
And really, the state had a simple solution: Obey its own damn protocol.
As I wrote at the time,
Judge Frost said it was the state's own fault.  All they had to do was follow the rules they made up.  How hard can that be?
Of course, we know the answer.
They decided to appeal to the berobed ones in our nation's capital, ask them to life the stay so that Charles Lorraine can be killed.  But they decided to take their time, to hone their arguments.  So Lorraine didn't get killed, and they announced that this month's killing of Michael Webb would be halted, too.  While they came up with a perfect and perfectly constitutional protocol.
As I wrote at the time,
[Attorney General Mike] DeWine, of course, still claims that the protocol is constitutional.  And presumably he still has the judge's agreement.  Maybe now he understands that there's also a constitutional mandate to follow the protocol.  But I doubt it, since his claim remains that while they keep adjusting the protocol on the fly, in mid-murder as it were, they're doing that to make a terrific protocol into a perfect one and gee, the only question is whether the one they ignore is constitutional, which it is.
Well, they did go to the Supremes.
Tear down this wall, they said.
Oh, wait, that was Reagan talking to the Soviets.
Lift the stay, they said. We have a constitutional protocol.  It satisfies the 8th Amendment.  It doesn't matter whether we follow it.
Really, that's what they said. Here's the quote from their application to vacate the stay.
The State of Ohio and its execution team take seriously the duty to perform executions constitutionally and according to the protocol. The point, however, is that those two obligations—acting constitutionally and acting according to the protocol—are separate inquiries. The federal courts have authority to intervene only if the State fails on the first score.
And the Supremes refused, though they didn't say why and it's not particularly clear that the refusal means anything much.
SCOTUS on Lorraine Stay
Still, it leads me to where I began.
Damned if I know what happens now.
Mark Wiles is next.  he's supposed to be murdered on April 18.
And all the state has to do to make it happen is to convince Judge Frost that this time they'll obey the protocol.
They don't need a new one.  They don't need to refine.  They need to obey.
And they need to make Judge Frost believe that they'll obey.  Though having been fooled twice now, he's likely to be skeptical of the state's assurances.
But if they can't convince him, then it would seem that they can't kill.
My guess is that they'll reach some sort of accommodation within a few months, though it's hard to see just what they will be.
And I wouldn't bet the farm on it happening.

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