Wednesday, March 28, 2012

Obeying the Law

This is sort of about the Rule of Law trumping the Law of Rule.  I mean, yeah, that's what happened.  But really, this is about a court just saying that the law means what it says.  Which is no small thing.

I've observed before that executions in Ohio are, quite literally, criminal acts.  To carry out an execution is to cause the death of another purposely and with prior calculation and design, which is exactly the offense of Aggravated Murder as defined in our statutes.  (See here.)  I'm told that some states specifically add language to their murder statutes saying something like "without privilege to do so" or do something else to exempt from the criminal offense those who act under the authority of a court order.  That may or may not be true of some states.  It's emphatically not true of Ohio.

So our executioners are factually guilty of Aggravated Murder.

They're not legally guilty of it, of course.  That could only happen if they were prosecuted and found guilty.  It's just about inconceivable (not quite, since the ability to imagine the virtually unimaginable is boundless), of course, that the executioners would actually be prosecuted and found guilty for carrying out an execution, but that's not because the act is lawful.  It's just that those who run the legal system don't mind that particular illegality (and no jury in Scioto County would be inclined to convict even if some rogue prosecutor decided to indict and somehow convinced a grand jury to return that indictment.

All of which is kind of an introductory digression - but kind of not.
Another subject I've written about with some frequency is thiopental sodium, the traditional first drug in the three-drug sequence with which state murder by injection has mostly been performed.  I'm not going to bother with the links here, but for a quick recap, the drug sequence was a barbiturate anesthetic (thiopental), a muscle-relaxing paralytic (pancuronium bromide), and a heart-stopping salt (potassium chloride).
Thiopental was manufactured for sale in this country only by the pharmaceutical manufacturer Hospira.  And Hospira decided that it didn't really want to be in the killing business.  And its supply of a key ingredient in the manufacture dried up.  So there was no more.
Into the breach stepped Dream Pharma, a drug distributor working out of the back of the Elgone Driving Academy in London. 
Dream Pharma was happy to export supplies of thiopental to the US so that the killing could proceed.  The problem is that they weren't licensed to do that and the thiopental they had wasn't tested and approved by the FDA. Nor was thiopental that was smuggled imported from elsewhere.
Killings ensued, but so did raids by the DEA.
'Twas a mess.
And of course there were lawsuits.
Which is what brings me to where I began. That this is sort of about the Rule of Law trumping (for a change) the Law of Rule, but that it's really about a court just saying that the law means what it says.
The court is the United States District Court for the District of Columbia. The case is Beaty v. FDA.  What happened is this.
The plaintiffs (death row inmates from Arizona, California, and Tennessee) said that the FDA
acted contrary to law, in an arbitrary and capricious manner, and in abuse of their discretion when they allowed shipments of the misbranded and unapproved new drug thiopental to be imported into the U.S., and [asked for] a permanent injunction prohibiting the FDA from releasing any future shipments of unapproved foreign drugs into interstate commerce.
The FDA and the other government defendants didn't dispute that the thiopental was a "misbranded and unapproved new drug" under the Federal Food, Drug, and Cosmetic Act.  But they said they were exercising their discretion to ignore violations of the law because, well, why the hell not?  They were just killing bad guys.  In effect, the government said there was a death-penalty exception, an execution exception, to the law.
Enter the Honorable Richard J. Leon, who concluded - and really I hate to say this is shocking, but it is -
Thus, defendants have acted arbitrarily and capriciously, and have abused their discretion both by departing from FDA's own regulations and longstanding policies and by undermining the purpose of the FDCA.
Beaty v FDA 3-27-12 DCT Memo
Which is well and good, but tends to leave you saying, "So what?"  I mean, OK they did a bad.  Now what?
Beaty v FDA 3-27-12 Order
Look, it's a little less than meets the eye.  Arizona has joined the growing ranks of states that no longer use thiopental.  Tennessee has, according to news reports, already turned over its smuggled imported supply of the drug to the feds.  And California - well, they don't actually kill anyone out there and god knows what system they'll use if they ever actually get back to it.
So it's not really the confiscation from those states.  It is, instead, the permanent "knock it off" order and the court-ordered return of supplies from any state that's got them.  And it's the recognition that the law means what it says. Even in capital cases.  Even when it's the death penalty.  Because there is no execution exception.
That is, of course, the Rule of Law.  As it should be.


  1. They wouldn't have that problem with the firing squad.

    You know, I have no use for someone who can sit on a bench and sentence a criminal to death, but who doesn't have the brass to get his own hands bloody. I'd make a lousy judge. I tend to be somewhat vindictive, I'm temperamental and I'd refuse to go along with most plea bargains. If I didn't agree with a jury's verdict, I'd overturn it in a heartbeat and give the jury a dressing down that they'd never, ever forget. I believe in self-defense, and about the third time the persecution brought me some poor woman who dinged her old man because this was the third time in as many days he came home drunk and beat her up, maybe they'd start getting the idea - don't swing your fist at another man's nose and expect to get anything less than you deserve.

    Where was I?

    But! If I sentenced someone to death, I would personally be willing to serve on the firing squad and send the no good SOB straight to perdition where he belongs.

    This namby-pamby crap about FDA approval and import - export law is stable dressing, and it's being used because we the people can't find ten men who make noise when they walk down at old cap city, and who are willing to look at the results of what happens when you actually kill someone. They haven't got the stomach for it, and so have no business being involved in it in any way at all.

    This is our government in action, and it's worse than working with a bunch of women.

  2. Considering the incredible inability of superior courts to get this right, let alone the gape mouthed numb nuts on so many juries, making murderers out of prison employees seems lacking in any moral justification.