Death/Life/Death/????

"[T]he Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane." Ford v. Wainwright, 477 U.S. 399, 409-410, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). The prohibition applies despite a prisoner's earlier competency to be held responsible for committing a crime and to be tried for it. Prior findings of competency do not foreclose a prisoner from proving he is incompetent to be executed because of his present mental condition. Under Ford, once a prisoner makes the requisite preliminary showing that his current mental state would bar his execution, the Eighth Amendment, applicable to the States under the Due Process Clause of the Fourteenth Amendment, entitles him to an adjudication to determine his condition. These determinations are governed by the substantive federal baseline for competency set down in Ford.

That's the first paragraph of Justice Kennedy's opinion in Panetti v. Quarterman, and it's pretty much unexceptionable.  (Which is not to say that everyone agrees.  Nobody much thinks it's OK to kill people who are sufficiently insane, though there's disagreement about whether the prohibition is constitutionally based.)

The "substantive federal baseline" from Ford really comes from Justice Powell's concurring opinion in that case.

I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.

When you get past the quibbling, the idea is that if the about-to-be-killed person doesn't know or understand that he's being killed for doing something bad, then there's really no disguising the fact that killing him will be nothing more than revenge and blood lust.  And we hate admitting that.

Raising Ford claims is hard for all sorts of reasons, not least that the question is whether the person is incompetent to be executed at the time of the execution.  That is, it's basically a last minute claim, and courts hate those.

Which brings us to Danny Bedford.

As I type this, it's 1:19 in the morning on May 17.  Just under nine hours from now, at 10:00 a.m., the good people of the State of Ohio intend to murder him.  

His lawyers say he's Ford incompetent and they need a stay in order to prove it.

They've been arguing his mental problems for a while now.  They told the Parole Board he was too crazy to kill.  On April 13, the Parole Board said he should die.  They asked for a stay from the Ohio Supreme Court and tried to appeal lower court denials.  On May 13, the Governor said he should die.  On May 10, 11, 13, and 16, the Ohio Supreme Court refused to grant stays. (I'm not bothering with links, they're denials without comment.)

Like I say, it's a tough sell.

Around the state, everyone was getting ready.  Vigils were announced, guards were preparing.  Bedford was moved to the Southern Ohio Correctional Facility at Lucasville where the killings are done. He was offered a last meal.  He asked for a 2-liter bottle of Coke.

But Monday afternoon, with less than 24 hours to go, U.S. District Judge Algenon Marbley granted a stay.  Give Bedford a chance to make his showing.

Lots of sighs of relief, but no rest for Beford's lawyers.  The Attorney General appealed to the Sixth Circuit.  We have to kill, he argued.  Marbley shouldn't have stopped it, he said.

Sometime around 10:30 Monday night, the Sixth Circuit ruled.  Kill him.  Now.

Bedford's lawyers announced - to nobody's surprise - that they were going to the Supreme Court.  If the Circuit had agreed with Marbley, the state would have gone there.  It's been clear for a while that this would be their call, that they'd finally decide.

Justice Brennan, it's said, used to hold his hand up in front of his new law clerks.  "See this," he'd say waving around his fingers.  "Around here, with five votes you can do anything."  And if you can only muster four votes, there's not much you can do.

Scalia, Thomas, Alito, Roberts.  You know how they're going to vote.  You don't know with absolute certainty about the rest.  But I'll take a stab at it.  Bedford doesn't get more than 2 votes for life.  And he probably doesn't get 2.  Or I could be wrong.

Feel whipsawed?

Kill, kill, kill, kill, kill.
LIVE.
Kill.

Fortunately, there's nothing cruel or unusual in that (certainly not unusual, alas).

I assume the Court will decide sometime between 9 and 10 in the morning, 7 or 8 hours from now.  But I could be wrong about that.  I have no inside information, no secret sources.

All I can do is wait.  Check the news again and again.

* * * * *

Meanwhile, the plan to repeal the death penalty in Connecticut has ground to a temporary halt because Dr. Petit has convinced a couple of state senators that they shouldn't vote for repeal until after the second alleged killer of his family is convicted and sentenced to die.  Edith Prague, who, as Gideon explained,

was for the death penalty before she was against it, before she was for it again, but only for one man,

 offered her own explanation.

The death penalty is always wrong and should be abolished, but it would be a shame to deny Petit the right to his revenge so for his sake I'll support killing one itsy bitsy more person.  Then we can abolish it.
And did I mention that I'm a little bit pregnant?

OK, she didn't say that pregnant part.  And the rest of it is my words, not hers.  These are her words, as reported by Hugh McQuaid of CTNewsJunkie.com.

They should bypass the trial and take that second animal and hang him by his penis from a tree out in the middle of Main Street.

Uh, yeah.  Sure.

(Gideon has the details here and here.)

* * * * *

Probably 12 or 13 years ago, I was arguing an appeal.  The issue involved a statement by the judge indicating that he viewed the defendant as a monster and treated him at trial accordingly - not according to the law, but according to his view that the guy was a monster, with bias and prejudice.

A judge on the court of appeals asked me,

But wasn't the judge just telling the truth?

I suppose that the judge thought he was.  But our system insists that his personal view of the defendant's monstrousness wasn't a proper basis for his legal rulings.  He had to be impartial.  Of course, judges act on improper considerations all the time (by which I mean "frequently," not really "all the time").  Bias isn't all that unusual.  It's just mostly better hidden. I told the judge,

Some things, you aren't allowed to say.  He may have believed it, and may have acted on it, but the law doesn't allow it, so if he admitted it, he acknowledged that he wasn't following the law and was biased.  It's never acceptable.  This is just the rare case when we have hard evidence.

* * * * *

Edith Prague's idea of what to do with Joshua Komisarjevsky is an example of the blood lust and revenge that we're don't admit we want.

Danny Bedford will or won't be murdered later this morning.

Death by Default

May 17.

That's the day the good folk of the Buckeye State have set aside for the murder of Danny Bedford.

We're proving to be good at this killing business, getting it all done on time, keeping the syringes greased.  So far, we hold the national lead in official murder in 2011.  Three to date in Ohio.  Two each in Oklahoma and Alabama.  No more than one anywhere else.  (Yep, even Texas has only killed one so far this year.)  And there are no more murders scheduled this month, so we should hold pride of place for a while longer.

Go Buckeyes!

But I digress.

In 1984, Beford killed his former girlfriend Gwen Toepfert and her then-boyfriend John Smith.

Bedford suffers from dementia.  He has mild mental retardation.  He suffered from depression and was addicted to alcohol.  As a consequence of his mental impairments, he cannot actually recall killing Toepfert and Smith.  When Bedford was thirteen, his father was murdered by his girlfriend.  His mother died of cancer.  He has changed over the years he's spent on death row.   The prosecutor committed such serious misconduct during the penalty phase of the trial that three of the seven justices of the Ohio Supreme Court thought the death sentence should have been reversed.  (The court's opinion is here.)

Frankly, and sadly, there's little to distinguish those facts (except the number of dissenters) from the facts in many death penalty cases.

The crimes are typically ugly.  Those who commit them are likely to suffer mental illness and impairment.  They typically grew up in broken homes, amid chaos, uncertainty, and violence.  Prosecutorial misconduct often seems, I'm sorry to say, the norm rather than the exception.  (The particulars of the misconduct, and how pervasive it is, vary considerably.)  And of course, the people we kill aren't the ones who committed those crimes.  I'm not talking about factual innocence here, not about mistake.  I'm saying that people change.  The Danny Bedford of today is not the Danny Bedford of April 1984.

And so, and again typically, the Parole Board urged Kasich to get on with the killing.  (Board's report is here.)

You read enough of these reports and you strive to find something to set one apart from the next.  They are all identical in form.  They are mostly similar in substance.  Yet always there's something.

Because however similar, the men and the crimes and the cases are each unique.  As with everything in the law, no two are ever identical.

And so it is that the state argued to the Parole Board that it shouldn't be considering evidence that Bedford had mental retardation.  That claim, the state argued, should have been determined by a court.  The Parole Board agreed.  Of course, as the Board noted because it's nothing if not diligent in reporting arguments made, Bedford tried to make the case in court.

Attorney Barnhart assured the Board that they are not attempting to avoid judicial scrutiny and would,  in fact, welcome it, but the state has opposed their attempts.  She stated that the courts have no afforded Bedford the opportunity to litigate his claim of mental retardation which would make him ineligible for execution if substantiated.  In fact, on October 18, 2010, the trial court issued a final judgment denying Mr. Bedford's petition and gave no reason for that denial.  She stated that it is disingenuous of the state to oppose a hearing in court on the merits of the mental retardation claim, and at the same time argue that the information presented to the Board during the clemency hearing is better suited for the courts to decide.  The mental retardation information is being presented to the Board because Bedford has been unsuccessful in having it heard by the courts, and presentation to the Board is the only current option.

Anyone who does this sort of work knows that this kind of thing is the norm.  No, we're told.  You can't make that argument here, you must make it there.  And No, we're told when we make it there.  You should have made it in the first place where they refused to hear it.  The prosecutors urge that.  The courts accept it.  You must find the right time and place.  But there is no right time.  There is no right place.

If there was a right place, could he make the case?  Could he convince whoever had to be convinced that he had mental retardation?  I don't know.  Neither does anyone else.  He didn't convince the Parole Board, but the Board agreed that it "is not suited to make the determination of mental retardation."

Since they're not competent to decide, they figure death is the best option.

The default.

Agents of the state of Ohio will probably kill Danny Bedford next month.  It's what they do.

Is he the worst of the worst who committed the worst crime?  No, I don't think anyone who's paid attention and didn't have a personal ax to grind could say that with a straight face.

Is he so dangerous that he must be eliminated to protect fellow prisoners or prison guards?  Nobody even hints at that.

Is there any reason at all to kill him?

Might as well.

He'll be number four this year.  Six more scheduled.

We're Number 1!  We're Number 1!

Because why not.