Paroline, Haugen, Maharaj - Catching Up on the News

We here at Gamso For the Defense (that's the Royal we, since I'm the only one here) struggle to stay atop the news and to keep tabs on stories.  Occasionally we even succeed.  As it happens, there are developments of a sort in two of the things about which I've written before.

So while we wait to find out how SCOTUS will parse the language of the Mandatory Restitution for Sexual Exploitation of Children Act -- Oh, I guess I'd better explain.

In 1994, Congress passed this law that said anyone convicted of federal crimes of sexually exploiting children must pay restitution to the identified victims of those crimes.  (There are a bunch of preliminary hoops that folks have to jump through - not least of which is identifying the victims.)  One child, known as Amy Unknown, was raped by her uncle when she was 8 and 9.  

She's 21 now, but her life has, apparently been a complete mess ever since she learned some years later that her uncle took pictures of the rape and they've been circulated widely on the internet.  (Don't go looking for them.  That's a serious federal crime.)  The damages she suffered and will continue to suffer from the knowledge that the pictures of her rape are being viewed by folks have been calculated at 3.4 million dollars.   To date she's been paid some 1.7 million in restitution.  Which means she's still owed 1.7 million.  The question is who should pay.  And how much.

That question made it to the Supreme Court this morning for oral argument in Doyle Randall Paroline v. United States.  (Transcript here.)  Paroline was discovered to have thousands of pictures of child pornography on his computer.  Two were of Amy.  He's been ordered to pay Amy 3.4 million for the harm he caused her by looking at her pictures.  Oh, nobody thinks he personally caused all 3.4 million in harm.  But he caused part of her harm by looking at the pictures of her being raped.  He's to pay what he can. After all, she's harmed whenever she learns that someone looked at her pictures.  

But should he really be stuck with the whole bill since he didn't cause the whole harm?  Maybe he should only have to pay restitution for the portion of the 3.4 million harm caused by his looking at those two pictures.  And how do you calculate that?  That's what the Court will try to work out in his case.

But hang on a second.  So he looked at Amy's pictures.  That doesn't harm her unless she knows, right? How is it that she knows?  How did she learn that Paroline had those 2 pictures?  Good questions.  The answer:  Our government told her.  Congress says the children in these pictures, if they can be identified, have to be told every time someone's caught looking at their pictures.  Which harms them. But the government isn't liable for the harm, even though it's actually the immediate cause of it.  That issue wasn't before the Court.

Did I mention that this is really fucked up?

Anyway

ALSO IN THE SUPREME COURT

Or maybe it would be better to say not in the Supreme Court, is Gary Haugen.  You remember Gary. He's the guy on death row in Oregon who was due to be executed when Governor Kitzhaber granted a reprieve explaining that he would not allow any executions as long as he's governor. Haugen was pissed, wanted to be killed.  He sued the Governor claiming that Oregon law makes a reprieve something like a contract and it has to be accepted or it doesn't count.  Since he didn't accept it, it didn't count and he could be killed.  The Oregon trial court agreed, grudgingly.  The Oregon Supreme Court said no. 

So Haugen went to the U.S. Supreme Court.  Which on Tuesday told him to go away

. They wouldn't hear his case.  Damn.  Now if he wants to die he has to kill himself.  Or wait till Kitzhaber's no longer governor and hope that the next guy is more bloodthirsty.  

The good news from Haugen's point of view is that Kitzhaber only has another year in his term.  The bad news is that he he just announced he's running for another term.  If he wins, that's 5 more years of reprieve.  Shit.

Oh, and there's this.  Jason Brumwell, Haugen's co-defendant is also on death row.  Same song, second verse.  Two weeks ago. Brumwell announced that he wants to be killed and will sue the Governor if he's granted a reprieve.  

Maybe it's something in the water.

WHILE IN FLORIDA

It was November 2012 when I reviewed Clive Stafford Smith's The Injustice System which told the story of Kris Maharaj, how he ended up in prison in Florida, first on death row, then just for decades, for the 1986 murders of Derrick and Duane Moo Young in a Miami hotel room.  A pair of murders he almost certainly did not commit.  He's 74 years old and confined to a wheelchair.  He's served some 27 years so far.  He'll first be eligible for parole in another 27 years, when he's 101. If he lives that long.  

Clive's been on the case for close to 20 years now, struggling to free him.

Just maybe.  

The evidence Clive presented in the book suggests that the actual killers may be from Columbian drug cartels.  There's more evidence now, including witnesses who can say that Pablo Escobar personally ordered the murders and that Maharaj had nothing to do with them.  And there are the fingerprints in the room which can be matched, maybe, to the actual killers.  If Florida would just let the examination be done.

But why would Florida do that?  Why would they want to find out?  Oh.  Right. 

What I say about the DNA in other cases, I say about the prints in this one.

TEST THE FUCKING FINGERPRINTS.

I mean, there are three possibilities.  Either they'll strongly corroborate the claim that Kris didn't do it and that a couple of Columbian drug cartel types did.  Or they'll show nothing of the sort.  Why wouldn't they want to know. 

There's supposed to have been a hearing earlier today.  I haven't found a news report.  

But when I do.

* * * * *

Just another day in the trenches.

Can't Win for Losing (Or Is That Lose for Winning?)

It would seem to be over.

Those whose job it is to have the last word have had it.

The condemned man loses again.

Sorry, guy.  And may God have mercy. . . .

Wait.  Cancel that last sentence.  I mean, maybe.  God might yet have mercy, but the court won't. The governor won't.  It's all over but the hand wringing and the wailing of the condemned man as he's led back to his cell.

His name is Gary Haugen, and he can't win for losing.  Which he did, Thursday, in the Supreme Court of the State of Oregon which unanimously said that he has no right to die.  More precisely, they said he has no right to be executed.  More precisely still, they said he has no right to insist on having his death sentence carried out despite the Governor having granted him a reprieve.

A brief review of the plot (which you can follow in more detail by reading through prior posts here) seems in order.

Haugen was sent to prison for life for the murder of his girlfriend's mother.  While he was in prison, he killed another inmate and was sentenced to death.  He refused to appeal and as the date of his execution came closer, Governor Kitzhaber granted him a reprieve to last as long as Kitzhaber remained in office. To which Haugen said something like,

Thank you, but I decline your kind offer.

or maybe it sounded more like

Fuck you and the horse you rode in on.  I ain't taking no fucking reprieve.  And you can't make me.

Which, Oregon being part of the good ol' US of A, naturally meant litigation.  Haugen won the first round, the judge declaring that although he wasn't particularly happy to rule that way, the governor can't just grant a reprieve.  All he can do is offer one.  If he does, the prisoner can accept or reject it.  And so the Governor appealed and now the Ohio Supemes have spoken  And they told Haugen to shut up.  Oregon's constitution gives the prisoner no say in whether to accept a reprieve.  The governor can just do it.  And he did.

As for Haugen's claim that the uncertainty of what will happen next is cruel and unusual punishment, well, you can pretty much guess how that came out. "We do not doubt," wrote Chief Justice Balmer,

that being on death row, awaiting possible execution and facing uncertainty as to if, and when, that sentence might be carried out, exacts a toll on people.

But the toll is not so great as to violate the Constitution. Besides, the Eighth Amendment prohibits imposing punishment.  Suspending a punishment isn't imposing one.

So Kitzhaber wins.  Reprieve remains.

Haugen is undaunted.  Per Helen Jung in the Oregonian.

In a phone interview, Haugen vowed to keep fighting, although he acknowledged the chances of success are slim.
But it is important to keep challenging Kitzhaber, Haugen said, questioning why the governor has not convened a committee to examine the death penalty or taken other action to change Oregon's capital punishment system since issuing the reprieve. 

Of course, had Kitzhaber done that, the reprieve might have turned into a permanent commutation. And then where would Haugen be?

Oh, yeah.  He'd be off death row.  Wouldn't that be a bitch.

  Haugen v. Kitzhaber by jmgamso

Withering Away - The News of the Week

When you don't get around to blogging for a week, you miss a lot.

I'd like to have written about how the Senate in Maryland voted to abolish the state's death penalty.  It seems a certainty that the House will follow suit.  (The Senate was less sure.)  Then Governor O'Malley - who's been pushing this - will happily sign the bill.  Maryland will then be the sixth state in six years to become abolitionist.  

There are efforts, with varying degrees of plausibility, in Washington State and Colorado and New Hampshire (where a former governor vetoed abolition legislation a few years ago, but the current governor is willing to sign it) and probably a few other places be next in line.   Of course, there are also efforts to bring back the death penalty in places like Iowa.  But we're clearly gaining more ground on this than we're losing.

Meanwhile, in Oregon, the state Supreme Court is getting set to hear oral argument on Thursday on whether Gary Haugen's lawsuit against Governor Kitzhaber.  Haugen claims that he has a right to, and wants to, refuse Kitzhaber's reprieve of his death sentence.  Haugen wants to die.  Kitzhaber doesn't want to kill him but hasn't actually commuted his death sentence.  Haugen won a less-than-enthusiastic victory in the Oregon trial court.  One of his claims is that a life sentence (which would be the alternative if he's never executed, although the reprieve is actually only through the end of Kitzhaber's term, so the next gov could feel free to kill Haugen) would be cruel and unusual punishment in violation of the 8th Amendment.  Hmmm.

SCOTUS is getting set for oral arguments on same sex marriage.

Leading up to passover, there's a plague of locusts in Egypt.

The blawgosphere (or at least the corner of it I follow), is all atwitter (and maybe a-tweeting, but since I don't, I don't know) over jurors asking questions (see Turk and Greenfield and Gideon and Matt Brown).  Here in Ohio we've got some experience with juror questioning since the Ohio Supremes endorsed it (at the discretion of the trial judge) a number of years ago.

The criminal lawyers who've experienced the process (lots of judges just won't do it - or won't if anyone objects, so it's very far from a universal practice) are split.  Some think it helps them.  Some think it hurts.  The judicial proponents of it say it enhances the goal of trials being a "search for truth" and that anything advancing that goal is a positive.  We who do criminal defense, know that the search for truth (gee, what actually happened that afternoon?) is rarely a bonus for our clients.  Hell, if all you want to know is what happened, why bother with things like the rules of privilege?  (Ooops, don't mean to make any suggestions here.)

Also, it makes jurors happy with the judge.  And our judges are elected.

My view, argued in court, in appellate briefs, in a cert petition, and in public forums with one of the judges who spearheaded the drive in Ohio, is that ours is an adversary system where the issue is what the government manages to prove.  Jurors getting to satisfy their curiosity is at odds with that.  They don't get to investigate the facts on their own.  And they don't get to question.  Or at least they shouldn't.  (Neither, by the way, should judges, I don't think, though that's an even tougher sell.)  And it carries, always, the risk that they'll ask the question that helps the government make its case.
 
And a judge in New York called a halt to Mayor Bloomberg's ruling that sugared soft drinks can't be bigger than 16 ounces.

But none of that is what I want to write about.  What I want to write about is what's happened in the Old Dominion State.  Here are some numbers:

• 110
• 2
• 57
• 8
• 3
• 1
• 0
• 1
• 2
• 0

Here's what they mean.  From the top:  Virginia has executed 110 men since executions resumed in 1976.  That's number 2 in the nation, after Texas.  In 1995, there were 57 folks on death row there.  Right now there are 8.  And it's not just 'cause they've been killing their way to a smaller row.  In 2010, there were 3 executions.  There was 1 in 2011.  None at all last year.  One so far this year.  In the past five years, they've put only 2 people on the row.  None at all last year.

It's quite extraordinary.  Some of it's court decisions.  Some of it is in fact killing.  Some is changing attitudes.  But here's the bottom line from David Bruck, one of our great capital defense lawyers and director of the Virginia Capital Case Clearinghouse at Washington and Lee University School of Law, as quoted by AP.

The process has largely ground to a halt. That is a huge development.

There have been just 4 executions in the US of A this year.  One each in Virginia, Texas, Georgia, and Ohio.  There are lots of reasons, and the pace is likely, I suppose, to pick up a bit, but that's tiny compared to what we've seen in past years.

The process has largely ground to a halt.

That's what I wanted to write about.

Of course, that all may prove to be trivia for us here in the good ol' USA if Dennis Rodman's good buddy Kim Jung-Nuts carries out his threat of a first-strike nuclear attack on us.

Praise the Lord and Pass the Condoms

Here are some of the things I haven't written about lately but would have if actually practicing law hadn't got in the way.

• Steven Hayes wants Connecticut to kill him now.
• Despite the best efforts of the good people in Florida, they didn't get to kill the Prince of God last night.
• Executions at a comparative snail's pace this year, despite strides in Oklahoma (4), Arizona (5), and Mississippi (6).  Texas has only managed to commit 10 murders this year.  Nationally, we're sitting at 32.  Of course, Texas has one planned for tonight, and there are more around the country to come.
• The Oregon Supreme Court has agreed to decide whether Governor Kitzhaber has the right to put off the execution of Gary Haugen even though Haugen doesn't want him to.  A lower court gave Haugen a grudging win on that issue a couple of months ago.
• It's not just a shame that scientists don't know when and where the next major earthquake will strike.  it's a crime.
• There may be fewer bayonets now than there were in 1917, but there's still a hell of a lot of them.

As I say, though, I've been busy practicing law.

But this is election season. The lies and half-lies, the misrepresentations. The I-stand-foresquare-and-permanently-for-whatever-position-today's-audience-favors The refusal of any major party candidate actually to address matters of civil liberties and criminal justice, of constitutional rights, of the Rule of Law or the Law of Rule.

So the death sentence and ensuing trial of Khalid Shaikh Mohammad.  (Yes, it is Wonderland:  ‘No, no!’ said the Queen. ‘Sentence first — verdict afterwards.')  It will be scrupulously fair, and we want the world to know it.  Which is why there are buttons in the courtroom that will turn off the microphones to prevent anyone from hearing evidence or argument the government wants to keep secret even if it's already been published in the press.  And why the defendant is prohibited from testifying about how he was tortured by the government.  And why the government will (I'm confident about this, though as with all prediction, it's at least theoretically possible I'll be proved wrong) absolutely reject the defense request to televise the trial live and worldwide.

And then there's rape and the Republican candidates for Senator.

First, Todd Akin who believes that legitimate rape victims have a secret something preventing pregnancy.  Even if he used the wrong word. Of course, maybe it's because doctors don't know about that secret legitimate-rape-contraceptive that they keep performing abortions on women who aren't pregnant.  (Which you might think wouldn't bother the anti-abortion crowd so much since, after all, what''s the harm in aborting a fetus that doesn't exist?)

Then there's Tom Smith who thinks getting pregnant without benefit of clergy is just like getting pregnant from a rape (although, of course, the latter may be gynecologically impossible).

Now, racing hard to catch up to his fellow senatorial the candidates from Missouri and Pennsylvania, comes Indiana's Richard Mourdock who explained last night that when a rape victim get's pregnant, it's a gift from God.  (He didn't say whether that's because only God can override the secret legitimate-rape-contraceptive.)  And, of course, since God's given her that pregnancy via rape, it follows that she should be grateful for the rape.  OK, Mourdock didn't say that last part.  And he says he opposes rape. But really, when it leads to the joy of being the mother of a rapist's baby - truly a special gift from God.  How could she not give thanks for being raped?

Bonus:
My friend Bob W. directed my attention to this (found at Turley)  from the Rev. Phil Snider of Brentwood Christian Church on providing protection for the LGBT community under Springfield, Missouri's anti-discrimination ordinance.  (Please, watch all the way to the end.)

Which gives me the excuse to reproduce Soggy Sweat's brilliant Whiskey Speech.  Soggy was serving his single term in the Mississippi legislature at the time (April 1952), and a hot topic was whether the Magnolia State should repeal prohibition.  Soggy took the question on at a banquet.

My friends,

I had not intended to discuss this controversial subject at this particular time. However, I want you to know that I do not shun controversy. On the contrary, I will take a stand on any issue at any time, regardless of how fraught with controversy it might be. You have asked me how I feel about whiskey. All right, here is how I feel about whiskey.

If when you say whiskey you mean the devil's brew, the poison scourge, the bloody monster, that defiles innocence, dethrones reason, destroys the home, creates misery and poverty, yea, literally takes the bread from the mouths of little children; if you mean the evil drink that topples the Christian man and woman from the pinnacle of righteous, gracious living into the bottomless pit of degradation, and despair, and shame and helplessness, and hopelessness, then certainly I am against it.

But;
 
If when you say whiskey you mean the oil of conversation, the philosophic wine, the ale that is consumed when good fellows get together, that puts a song in their hearts and laughter on their lips, and the warm glow of contentment in their eyes; if you mean Christmas cheer; if you mean the stimulating drink that puts the spring in the old gentleman's step on a frosty, crispy morning; if you mean the drink which enables a man to magnify his joy, and his happiness, and to forget, if only for a little while, life's great tragedies, and heartaches, and sorrows; if you mean that drink, the sale of which pours into our treasuries untold millions of dollars, which are used to provide tender care for our little crippled children, our blind, our deaf, our dumb, our pitiful aged and infirm; to build highways and hospitals and schools, then certainly I am for it.

This is my stand. I will not retreat from it. I will not compromise.

All Power to the Condemned

I'm an atheist, but I've written a lot about mercy, which I sometimes call "an act of grace," in this blog.  That's OK.  Mercy doesn't require a deity.  Nor does grace.  They're gifts, things to be granted.

They're about the giver, not the recipient, I say.

They have nothing to do with desert, I say.

They can't be earned, I say.

And although I don't exactly say it often enough, though I maybe haven't precisely said it here at all, they ennoble those who give them.

I need to talk here about John Kitzhaber, about Timothy Alexander who mostly agrees with him, and with Gary Haugen who disagrees vehemently.

I need to talk about grace and mercy and, sadly, about the law (though maybe this time it's Law with the uppercase L).  And I need to talk about the Rule of Law and the Law of Rule and about who's in charge here.

None of these things are new to this blawg (except Timothy Alexander, and he's just a functionary really, though a vital one in this case, and one of a sort we see either too often or not often enough, depending on the day and on your point of view).

Let me begin with Kitzhaber and Haugen - two men about whom I've written before.  Here they are, Kitzhaber on the left for esthetic not political reasons.

They are, intertwined, inescapably bound together. Maybe the right image is of them holding hands and swaying in a macabre tango. Perhaps it's a tug of war, yanking ends not of a simple rope but of a noose. Really, I don't know that there's a need to get the imagery just right until it's time for the funeral elegy. Or the paean to life.

 

John Kitzhaber is the Governor of Oregon.  Gary Haugen is on death row there.  

Haugen was scheduled to be killed until Kitzhaber stepped in.  He'd overseen executions before but says he will not do it again.  Nobody, he says, will be executed here as long as I am Governor.  Our law sucks.  We only kill volunteers, which is insane.  I'm giving him a reprieve until I am no longer Governor.  In the meantime, maybe the legislature will fix this abomination. 

Haugen will have none of that.  He wants to be killed. Insists on being killed.  You can't keep me alive, dammit, he says.  I have rights.  I demand to be killed.  Now. And I have a right to be killed.  You want to give me a reprieve.  I refuse it.  I spit it out.  Fuck you.

As I say, I've written about this apache dance (I'm still working on the imagery) before.  (See here and here.) 

Naturally, they're now in court, have been for a bit.

Kitzhaber says he has an absolute right, under Oregon law, to grant a reprieve.  It's his call.  Haugen has no say.  Haugen says that's bullshit.  Kitzhaber can grant all he wants, but I have to accept before it counts, and I don't. 

And so we come to the functionary, the Honorable Timothy P. Alexander, Senior Circuit Judge sitting in the Circuit Court of the State of Oregon for the Third Judicial District.  (Can't find a picture for you of someone who's definitely he.)  Yesterday, he issued his decision.  It's an unenthusiastic but ringing endorsement of Haugen's right to make Oregon murder him.

The unenthusiastic part is dicta, the filler that judges toss into their opinions.  Technically, dicta is whatever in a court's opinion isn't a formal holding.  (This is the rule and here's how it is to be applied.) Sometimes it's important, has real legal or political or even practical consequence.  Other times it's blather.  Occasionally, it's the words of a judge bemoaning that messy obligation to obey the Law (uppercase) even if he hates it.  It's that last thing Alexander was doing when he wrote this.

I have been personally involved with death penalty litigation for more than 40 years, acting as prosecuting attorney, defense attorney, appellate attorney, and trial judge. My decision in this declaratory judgment case is not intended to be a criticism of Governor Kitzhaber or the views he has expressed in his statement accompanying the reprieve he has offered to Mr. Haugen. In fact, I agree with many of the concerns expressed by the governor, and share his hope that the legislature will be receptive to modifying and improving Oregon laws regarding sentencing for Aggravated Murder. Many Oregon judges with experience presiding over death penalty cases would concur that the current law requires spending extraordinary sums of tax dollars that could be better used for other purposes to enforce a system that rarely if ever results in executions.

However, consistent with the resolution of every other case, I am required to set aside my personal views and decide t his case on its merits and the law.

You know from that "however" at the beginning of the second paragraph I quoted how this is going to turn out.

Here's the short of it.  Governors have absolute authority to grant mercy, short term as in reprieves or permanently as in commutations.  And the people to whom they grant that mercy have the absolute right to say 

Fuck no.  I ain't taking it.

And to make that stick.

Mercy, it seems (and it turns out that this used to be the position of the US Supreme Court on the constitutional power of the President, too, but it is no longer), is not so much a grant of grace but an offer of a contract.  Perhaps subject to negotiation.  That's Oregon Law, or at least it is until higher Oregon courts speak to it.  The Law in your jurisdiction (or mine) may vary.

So here we have a judge forcing himself to adhere to the Rule of Law and ignore his predilections.  Good for him.  That's what we want judges to do.

And what he concludes is that the Rule of Law, the rule that gives the Governor absolute authority to grant mercy, is actually trumped by the power to refuse it.  So that, in Oregon at least, mercy isn't about the giver at all.  It's about the willingness of the grantee.

That's not mercy as I understand it.  It's certainly not the heritage of the divine right of kings.  Nor is it any religious conception I'm aware of.

God:  Welcome to the Kingdom of Heaven.
Dead Guy: Fuck no.  I'm not staying and you can't make me.
God: Actually, I can.

Except in Oregon.

Where the inmate gets to choose his punishment.

And where the right to suicide by prison guard is, at least for the moment, inviolate.

Haugen v Kitzhaber 1st ruling

Murder Me Now

I've taken to calling it "Death in Prison," but whether it's called that or the psychologically wrenching "Life Without Hope" or the legalistic "Life Without the Possibility of Parole" or the acronym "LWOP" doesn't matter.  It's horrific.  For many folks it's worse than the death penalty.

It lingers forever.  World without end.  Pain everlasting.

Some, not all, maybe not most but some, say they'd prefer death.

Kill me now.

They're often called "volunteers," and they raise what are for some thorny issues.

When they're being sentenced, during their mitigation hearings, sometimes even from the moment of arrest, they demand death.

• Kill me, or I'll kill again.
• Kill me, I'm a monster.
• Kill me, I deserve it.

That's one sort of thing.  Try to force the issue.  But if the point of sentencing is punishment or retribution or deterrence or anything other than killing for its own sake - and in the killing fields of the U.S. we like at least to pretend there is, then there's a complicating subtext to those demands.

• Kill me, it's the choice I prefer.
• Kill me, it's the penalty I want.
• Kill me, it will make me happy.

And when the guy (it's almost always a guy) has been sitting on death row for god knows how long and festering in his own feces and maybe he's gone completely bonkers what with 23 hour/day lockdown isolation and not having seen natural light or felt a fresh breeze or whatever for maybe a decade or two and being told you'll die on Thursday and maybe even being led to the gurney before learning that some court just granted a stay as a sick joke and maybe that's happened more than once (depending, of course, on the state and the institution and the particular case).  And so he says,

Basta!
Enough!
Get it over with.
Hell, you're gonna kill me anyway sooner or later.
So do it now.
Please.
I beg you.

What then.

It's suicidal, of course, and that raises it's own issues.

Is suicide ever moral?

Is suicide ever the choice of a competent person.

Can death be a rational choice?

Can life ever be that bad?

And what of the killers?

Carrying out a punishment raises one set of moral questions.  The law in most states, in the federal system, in the military allows state murder in some cases.  Assisted suicide doesn't have that same broad legal approval.  Assuming, of course, that it's not the same as state murder.

Carol J. Williams writing in the Los Angeles Times.

Serial wife-killer Jerry Stanley wants to die.

Imprisoned on death row for the past 28 years, Stanley insists he deserves execution for the cold-blooded killing of his fourth wife in 1980 and for shooting to death his second wife five years earlier in front of their two children.

Despairing of the isolation and monotony of San Quentin's rooftop fortress for the purportedly doomed, Stanley earlier this year stepped up his campaign for a date with the executioner by offering to solve the cold case of his third wife's disappearance 31 years ago — by disclosing where he buried her body.

When bartering failed to secure him a death warrant, he offered himself up as the test case for resuming the three-drug lethal injections, which had been suspended for six years and remain under judicial review.

"I am willing to be the experimental guy to see whether or not they work," Stanley, 66 and ailing, said in a statement to The Times. "Assuming I can't get lethal injection because of the injunction on the chemicals, I am willing to accept the gas chamber. I understand the gas chamber is available and I insist on getting a date."

Well, that calls the question.

So does this from the Statesman Journal.

Death-row inmate Gary Haugen ripped Gov. John Kitzhaber on Friday for blocking his scheduled Dec. 6 execution.In a telephone interview with the Statesman Journal, Haugen mocked Kitzhaber for not having the guts to carry out the execution.
"I feel he's a paper cowboy," he said. "He couldn't pull the trigger."
The 49-year-old, twice-convicted murderer said he plans to consult with attorneys about possible legal action to fight the temporary reprieve issued Tuesday by the governor.
"I'm going to have to get with some serious legal experts and figure out really if he can do this," Haugen said. "I think there's got to be some constitutional violations. Man, this is definitely cruel and unusual punishment. You don't bring a guy to the table twice and then just stop it."

Some folks on death row commit suicide.

Whatever the moral or legal standing of the act, they do it themselves.

Others try to commit suicide and fail.  They get patched up and returned to the row - or in odder cases almost directly to the murder chamber.

Maybe they're competent to make the decision they do.  Maybe not.  But it implicates nobody.

Volunteers are different. They implicate everyone:

• The killers.
• The lawyers who support their efforts.
• The lawyers who oppose their efforts.
• The psychologists on both sides.
• The judges.
• The prosecutors.
• Maybe the jurors.

And those who stand on the sidelines cheering or crying.

After reproducing a chunk of the Williams article about Stanley, Doug Berman asked one of the relevant questions.

If one is eager to torture (psychologically and physically) a condemned murderer by denying him the opportunity to end his LWOP suffering, I suppose it makes sense not to honor his wish to die.  But is there a truly humane reason to refuse such a request to end LWOP suffering if the condemned murderer has no reasonable basis to hope for any eventual freedom from harsh imprisonment?

But it's only one of the questions, and really, it's the wrong one.

Because the request isn't, not ever,

Go away and let me die.

These folks aren't saying

Give me some pills and leave me in peace.

They aren't the one's slitting their wrists with their fingernails or fashioning nooses out of prison jumpsuits or smashing their heads into the wall repeatedly in the hope of breaking it open.  As I say, there are suicides and attempted suicides on death row.  Allowing them to act, unimpeded, may or may not be humane.  But it's not what we're talking about.

We're talking about the ones who are asking us to kill them.

Not, I want to kill myself, but I want you to kill me.

Which is something very different.

"I Refuse To Be a Part of This Compromised and Inequitable System Any Longer"

[W]e have done nothing. We have avoided the question.

John Kitzhaber, Governor of Oregon

What question?

Here's a hint: In Oregon you have to volunteer.

Enough.  I don't want to be coy.  That's from a statement issued by Governor Kitzhaber explaining why it is that he is imposing a moratorium on executions in his state for the remained of his time in office.  There have, he said, been a total of two executions there in the last 49 years.  Both in the 1990s.  Both while he was Governor.  Both volunteers.

Now there is another. Gary Haugen, Oregon's third volunteer.  And he had a death warrant, a date with the Reaper.  And now he doesn't.

It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury. The only factor that determines whether someone sentenced to death in Oregon is actually executed is that they volunteer. The hard truth is that in the 27 years since Oregonians reinstated the death penalty, it has only been carried out on two volunteers who waived their rights to appeal.
In the years since those executions, many judges, district attorneys, legislators, death penalty proponents and opponents, and victims and their families have agreed that Oregon’s system is broken.

What to do.

It is time for Oregon to consider a different approach. I refuse to be a part of this compromised and inequitable system any longer; and I will not allow further executions while I am Governor.
. . .

Fourteen years ago, I struggled with the decision to allow an execution to proceed.  Over the years I have thought if faced with the same set of circumstances I would make a different decision.  That time has come.

Kitzhaber is very clear.  He's not commuting the sentences of the men on the row (though he observes that he could).  He's not saying Oregon can't have a death penalty.  He's saying he won't kill.  The goal offends, but it's the law.  He thinks it should be changed.  He's calling on the legislature to change it.  In the meantime, the system is irredeemably broken.  And just wrong.

And he? He won't be complicit. William Yardley in the Times:

Governor Kitzhaber said his decision was rooted in policy and personal views. He noted he had taken an oath as a physician to “never do harm.” Asked with whom he had consulted, he said, “Mostly myself.”

Which was enough to ensure that the question would no longer be avoided.

Amen.

Kitzhaber's Moratorium Statement