January 12, 2017 - By Means Unknown

Peter Copas died on September 10, 1997. He was in prison. He'd been moved into the cell of one James Galen Hanna, who didn't want him there. Copas was, Hanna said, a pain Get him out of here, Hanna said. Before that could happen, Hanna stabbed him and smashed his head in.

For killing Copas, Hanna was sentenced to be killed himself. Let the punishment fit be the crime.

Life for life, Eye for eye, tooth for tooth, hand for hand, foot for foot, Burning for burning, wound for wound, stripe for stripe

Exodus 21: 23-25.

Of course, we don't do that - except for life.

Sixteen months ago, October 22, 2103, Hanna's case having worked its way through the legal system, the Warren County prosecutor asked the Ohio Supremes to set an execution date. Of course, we had a backlog. And then they fucked up the murder of Dennis McGuire. And Oklahoma botched the killing of Clayton Lockett. And Arizona mangled Joseph Wood's.

And so none of the folks scheduled to be killed here in 2014 (except McGuire) actually got killed. And then Kasich rescheduled the 2015 folks to 2016. Where they're set to fall like dominoes, one a month, January through November. (Though nobody in December - Thanksgiving, sure; Christmas, no.)

Which means that when the supremes (O'Neill dissenting 'cause he thinks it's unconstitutional for the state to kill) set a date this morning for James Hanna to be murdered, they didn't schedule it until 23 months from now. January 12, 2017.

Of course, it's not all that clear how they're going to kill him. And it may not be. Maybe not even afterward. Tuesday, Judge Frost dismissed Phillips v. DeWine, a lawsuit by 4 guys on the row challenging the constitutionality of Ohio's execution secrecy law.*  Pared to its essentials, the judge said that the law is grossly unfair, unreasonable, and mean spirited. But it's not, at least as to those 4, unconstitutional.

     This Court is cognizant that the harsh result that follows today’s holding is a matter of some unease. Dismissal unquestionably handicaps Plaintiffs’ pursuit of their protocol challenge in related litigation. Accordingly, even if the outcome and consequences dictated by the foregoing analysis do not defy the logic of the law, some would argue that they certainly defy common sense. Fore example, a judge who concurred in judgment in Wellons wrote separately to “highlight the disturbing circularity problem created by Georgia’s secrecy law regarding methods of execution in light of . . . circuit precedent.” Wellons, 754 F.3d 1260, 1267 (Wilson, J., concurring in judgment).
     [lengthy quote deleted]
     In execution protocol challenges, the law tells death-sentenced inmates to bring evidence into the courtroom while concurrently upholding a scheme that places the bulk of select evidence outside the reach of the inmates. The necessary is also the withheld: you must give us that which you cannot have to give. In order to challenge the use of a drug that will be used to execute them, inmates must explain why use of that drug presents a risk of substantial harm. But the inmates are not allowed to know from where the drug came, how specifically it was manufactured, or who was involved in the creation of the drug. This means the inmates can attempt to complain about the reliability of the drug without being afforded the information that would place the drug into a context in which the inmates and by extension the courts can evaluate the reliability based on more than impermissible speculation or perhaps unwarranted assumptions.
     A proponent of Kafkaesque absurdity might be proud of such a byzantine method for pursuing the protection of a constitutional right, even if the drafters of the United States Constitution might not. A right bereft of an effective, meaningful means to protect that right is arguably nothing more than an illusion to appease a society that conveniently and comfortingly seeks to tell itself that it kills with fairness. Society may or may not achieve that laudatory goal, but it would make sense to come to a conclusion on that issue based on something as likely helpful as actual facts. But the issue pervading this action is not whether a different approach in the atypical context of lethal injection might be better, but whether a different approach is compelled. Under the limited rights afforded all citizens under the Constitution, it is not, and Plaintiffs’ claims based on pursuit of such a different approach warrant dismissal. 

Terry Lenamon wrote the other day that, however, it may look at a glance, "The Death Penalty Is Alive and Well in 2015."  

Alive, well, and living in a cave where it can't be seen - even if it must be inflicted.  Just ask James Hanna who's got almost two years to contemplate the fact that he knows when he's to be murdered even if they won't tell him how.

  Phillips v. DeWine

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*Disclosure: I was not counsel in the case, but I consulted with them on some of the arguments they made.