Thursday, April 5, 2012

The Valley of the Shadow of Death

Once more into the breach, dear friends.
Or maybe it should be
Third time's the charm.
Judge Frost today said that Ohio gets another chance.  He began with history.
“Ohio has been in a dubious cycle of defending often indefensible conduct, subsequently reforming its protocol when called on that conduct, and then failing to follow through on its own reforms.” In re Ohio Execution Protocol Litig. (Lorraine), No. 2:11-cv-1016, 2012 WL 84548, at *1 (S.D. Ohio Jan. 11, 2012). Ohio has now come forward with yet another set of reforms to its practices that it assures this Court will remedy the state’s unconstitutional conduct.
He acknowledged he was dubious.
The Court is admittedly skeptical about Ohio’s ability to following through on its latest reforms. At the heart of these reforms is Ohio’s promise that newly implemented chain-of-command and documenting procedures and a renewed if not newfound commitment to conducting constitutional executions finally mean that the state can carry out executions in a constitutional manner.
And so it was death or moratorium.
Thus, the question before the Court is whether it should believe Ohio’s latest round of promises. If this Court cannot, then the end result is a stay of the Wiles execution based on analysis that will likely lead to a court-ordered moratorium on executions in Ohio. If this Court does believe Ohio, then the state can proceed to execute Wiles and this Court will soon learn whether it erred in believing Ohio once again and perhaps one time too many.
One more time, and I've talked about this repeatedly, Ohio has an execution protocol that Frost thinks is constitutionally adequate.  Not perfect, but adequate.  It was written by the Department of Rehabilitation and Correction, the same people who carry it out.  If they did what they claim they'd do, if they obeyed the procedures they developed and wrote down, he'd have had no problem letting the killings go forward.
But they don't obey, or at least they haven't.
And the failures - random, arbitrary, unpredictable - failures because all they care about is getting the guy dead - they turn a constitutional protocol into an unconstitutional practice.
So Judge Frost decided in July 2011.  And we had no killings for few months while the state figured out how to convince him that it would, in the future, do what it said it would do.
By November, they'd done it.  New protocol.  Promises of seriousness.  
We've learned our lesson.  No more fucking around.  See, we even wrote in safeguards.
Go forth then, the Judge said.  You may kill Reginald Brooks.  Which they did.
Defendants were now saying that they got the message that it mattered that their actions matched their words. Trust us, Defendants said, we will not deviate from the core components of the protocol. This Court accepted that contention. Trust us, Defendants continued, we will let only the Director decide whether to allow any potentially permissible deviation from the non-core components of the protocol. This Court also accepted that statement.
Frost wrote that in January.  In light of the Brooks killing.  Before the scheduled murder of Charles Lorraine.  Which he stopped.  The judge explained.
As set forth below, Defendants have once again fooled the Court. 
So we didn't kill Charles Lorraine in January or Michael Webb in February.  And for some reason there never was a scheduled murder in March.
And now. 
See, they've redone the protocol again.  New safeguards and double checks.  They've even practiced the safeguards (though they screwed some of them up).  And they've promised.  
Really, we mean it this time.
Oh, sure, they're defense was stupid.
Fairly characterized, Defendants’ reasoning amounts to “because we consistently act inconsistently in regards to the protocol, we cannot be regarded as intentionally treating any specific capital inmate differently from others similarly situated.” In other words, Defendants argue that overarching ineptness in applying the protocol provides a shield against the challenge that Ohio fails to apply its own protocol. This is the epitome of close enough for government
work. The extant question is whether such a disappointing approach is good enough for the Constitution.
Frost never answers that question, which is probably for the best.  But he thinks maybe they really can be trusted this time.  Or at least, Mark Wiles hasn't proved they can't.
The answer . . . turns on the burden involved. Wiles has the burden
of convincing this Court that Ohio cannot be trusted, even in light of the new facts presented to the Court. Because he has failed to meet that burden, with the evidence nearly if not completely equally balanced on whether this Court can trust Ohio, Ohio can proceed to fulfill its lawful duty to execute Wiles.
The murder is scheduled for 10 AM on April 18th.  The Parole Board signed off on it.  Governor Kasich is likely to do the same.
And then? Frost isn't exactly brimming with confidence.
            This Court is therefore willing to trust Ohio, just enough to permit the scheduled execution.
            The Court reaches this conclusion with some trepidation, given Ohio’s history of telling this Court what Defendants think they need to say in order to conduct executions (or in convincing themselves that things are fine enough when they are not) and then not following through on promised reforms.
There's another scheduled break in May.  That'll give Frost time to reconsider, yet again, before the planned murder of Abdul Awkal on June 6. 

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