Gratuitously Cruel and Unusual

 July 5, 2005.  Kirkwood, Missouri.  Police executing a search warrant.  Joseph Long, 12 years old, suffers a seizure and collapses to the floor..  Police stepped over him - repeatedly.  Failed to offer him help.  Refused to let his mother in the house to help him.  Joseph Long died.  Kevin Johnson, Long's older brother, stood by helplessly.

Two hours later,  two hours after Joseph Long died, police, including officer William McEntee, returned to the neighborhood after reports of fireworks.  It was McEntee's second visit that night as he'd been part of the search time.  Johnson, still and understandably distraught, saw him. "You killed my brother."

Then Johnson shot him.  Multiple times.

As you might imagine, Johnson being black and facing an all white jury for killing a cop, Johnson ended up on death row.  The good people of the State of Missouri plan to kill him next Tuesday.  Ho hum.  Shit happens.  Especially (but really not exclusively) to black guys caught up in the Missouri Criminal Justice System.  

OK, nothing new here.  The usual voices (mine is one, but you knew that if knew me or you'd been here before) oppose the execution for all the usual reasons - both the general ones about the death penalty in general and the specific ones about the facts and background of this case.  To date, they've had no effect.  The courts so far have all signed off on the killing, the governor is unmoved.  Unless something breaks, always a possibility with several days to go, they'll strap him down and kill him next week.

But see, there's something else.  Really, someone else: Kevin Johnson's daughter, Khorry Ramey.  She's 19 years old now.  Nineteen.  That's the same age her dad was 17 years ago when he watched his kid brother died and then killed Officer McEntee.  Johnson wants her to be there.  More importantly, she wants to be there.  Needs to be there.  To watch ti happen.  To say good-bye in the most intimate and personal way she can.  

To help her, somehow, this victim of the state's killing machine, deal with the trauma those good people of the State of Missouri are inflicting on her by killing her dad for the trauma he . . . . OK, you, know the drill.

Anyhow, here's the thing.  Missouri has a statute, Revised Code Section 546.740 saying who can watch when it kills someone:

546.740.  Execution, witnesses. — The chief administrative officer of the correctional center, or his duly appointed representative shall be present at the execution and the director of the department of corrections shall invite the presence of the attorney general of the state, and at least eight reputable citizens, to be selected by him; and he shall at the request of the defendant, permit such clergy or religious leaders, not exceeding two, as the defendant may name, and any person, other than another incarcerated offender, relatives or friends, not to exceed five, to be present at the execution, together with such peace officers as he may think expedient, to witness the execution; but no person under twenty-one years of age shall be allowed to witness the execution.

It's that last clause,"no person under twenty-one years of age," which Khorry Ramey being 19 and all, just doesn't qualify.  

And so Missouri said no.  And so Khorry Ramey sued.  And so, Missouri could have said to the court,"OK, in the interests of common decency and since we're already committed to a course that will certainly damage the kid maybe we can just let it slide and agree that, as applied to Johnson's kid this is unconstitutional."  And the court would have said, "Dandy.  Khorry wins.  Case dismissed.  Let's eat some leftover turkey."

It could have done that.  It would have been the decent thing to do.  It would have been fair and just and morally right.

Of course, that's not what happened.  Today, the Honorable Brian C. Wimes of the United States District Court for the Western District of Missouri, Central Division (let's make this as wordy as possible) issued his opinion.  Missouri wins.  Oh, sure, 

Plaintiff alleges she will suffer harm that is “real, palpable, and devastating,” and no remedy is available at law to compensate her for the emotional harm she will incur if she is barred from attending her father’s execution. (Doc. #8). The Court does not discount these allegations of emotional harm and does not dispute they are irreparable, both in a personal sense and a legal sense.

But tough noogies.  And fuck you.

Strictly speaking, it's not cruel and unusual punishment because it's not punishment at all.  But this is a blawg, not a court.  And what the prison system and the good people of the State of Missouri and the Honorable Wimes are doing is sure cruel, and damn well ought to be unusual. And, oh yeah, gratuitous.

Put $284,000 in Small Unmarked Bills in a Paper Bag and Leave It Under the Big Rock near the Playground

It must be nice to have a slush fund.  Or you could think of it as not-so-petty cash.

Turns out that Missouri pays cash for executions.  Chris McDaniel for Buzzfeed news:

Shortly before each execution in Missouri, a high-ranking corrections official takes envelopes filled with thousands of dollars in cash to the state’s executioners. The cash limits the paper trail — and helps keep the identities of the executioners hidden.
Most of the envelopes are filled with hundred-dollar bills. And on the outside, the envelopes carry instructions: They aren’t to be opened until “completion of services rendered.”
The executioners are given pseudonyms to protect their identities: M2, the nurse, gets $2,400, while M3, the anesthesiologist, gets the envelope marked $3,000. M7, the drug supplier, gets the most, an envelope filled with $7,178.88.

It adds up.  

Missouri Director of Adult Institutions David Dormire has handed out nearly a hundred envelopes filled with cash since November 2013. Over that span of time, Dormire delivered $284,551.84 in cash to the small group of individuals who help the state carry out the death penalty, according to a BuzzFeed News review of receipts, an audit of the payments, a spreadsheet showing cash withdrawals, and memos marked “confidential” in which the payments were discussed.

I kind of get it.  Giving out cash avoids a paper trail.  Records just get you in trouble.  You know, subpoena them.  Bring them to court.  Or file public records requests.  All that stuff.  Better to keep it quiet.

In fact, it's really better to keep it completely secret.  Especially from IRS.  Which might want to collect taxes.  Of course, maybe the folks taking the money under the table are reporting it.  Sure they are.  What we know is that Missouri isn't reporting it. 

Sure, the law requires that Missouri give the good-guy killers of bad-guy killers 1099 forms.  Which they also have to file with IRS.  But they don't.  Because those good-guy killers, it seems, won't kill on command if IRS is told about it.  At least, that's what George Lombardini, director of the Missouri Department of Corrections explained at a budget hearing Monday.  Danny Wicentowski of Riverfront Times was there.

“It is my understanding that giving 1099s to these individuals would reveal who they were, and would mean the end of the death penalty, because these individuals wouldn’t do it,” Lombardi said, responding to questions from State Representative Rep. Jeremy LaFaver (D-Kansas City).

Of course, being good guys

Lombardi added that his staff counsels executioners to report their cash payments to the IRS.

No doubt.  And surely, they all do.  Being good-guy killers.

LaFaver had other questions.  Why, he asked Dormire, aren't the cash payments listed in the Corrections Department budget?

We don't include a whole lot of things that are expenses; we try to hit the highlights of the major items.

You know, maybe they don't budget for donuts.  Donuts and killing.  Yeah.  But ooops.  It appears that donuts are a budget item.  

Questioned further, Dormire couldn't identify another example of an expense not included in the budget.

So it's just killing.

Which didn't much please LaFaver.

"I respectfully submit and request that executing somebody, it's a big deal," LaFaver shot back. "If we're going to spend money to do that, I think it should be included in the description, that this is the area of the budget where money goes in envelopes in cash to kill people. Maybe worded differently, I understand you probably would. I probably wouldn't."

Really, though.  It's just about balance.  On the one hand, Missouri by god wants to be killing folks. Have to violate the law in order to do it?  What's more important, anyway? Executing bad guys or paying taxes.

Right.

They call it the Show-Me State.

Show me the money. 

Exemplary Behavioer

You've been a good father. You've been a good husband. You've been a good taxpaying citizen of the state of Missouri. That leads me to believe that you are a good and a changed man.

That's Mississippi County Associate Circuit Judge Terry Lynn Brown explaining why he was cutting Cornealius "Mike" Anderson loose.  Not putting him on parole.  Just giving him credit for time served for the 4,704 days between his conviction and his arrest. That's enough credit, enough days, to send him home.  At once.  

Which the judge did.

I told Anderson's story a month ago.  With my usual degree of snark and cynicism. He'd been convicted of armed robbery, sentenced to 13 years in prison.  But Missouri forget to tell him to turn himself in, forgot to come get him. So instead of going to prison and learning to be a competent criminal, he went and rehabilitated himself.  He started 3 businesses.  He paid taxes.  He got married.  He coached football.  He became, that is, a productive member of society.

Until Missouri remembered and sent a SWAT team to his home to arrest him while he was feeding breakfast to his three-year old.

Last month, I wrote this.

The right thing, the decent thing, the sensible thing, the humane thing, is for Missouri to say,

Gee, Anderson.  We're sorry.  We fucked up.  You've spent 13 years with a cloud hanging over your head, everyday knowing that your life could be totally fucked up in a moment.  Yet never trying to hide or escape.  You've demonstrated in that time that rehabilitation works.  You've become the sort of person we can be proud to have around.  Now, go back to your family and your life.  

Or, of course, Missouri can say,

OK Anderson.  We don't give a flying fuck about any of that shit.  Sure you're a fine guy now, but the asshole stuff you did 13 years ago requires that we treat you like pond scum, ruin your life and your family's, and learn that all we care about is pain and vengeance. Ain't no room for human decency here. This is about inflicting justice.  Bend over and spread 'em.

My bet, the smart money I thought, was on the second of those alternatives.  I admit, happily, that I was wrong.  Missouri, in the person of Judge Brown, chose door number 1. 

Apparently the AG won't object.  He issued a statement.

From the outset, I have proposed a solution that balances the seriousness of Mr. Anderson's crime with the mistake made by the criminal justice system and Mr. Anderson's lack of a criminal record over the past 13 years. Today's outcome appears to appropriately balance the facts as we understand them.

Missouri's got its problems.  But this one they did right.

Inflicting Justice

Yesterday, Gideon told the story of Cornelius "Mike" Anderson, currently spending 13 years in the embrace of the Missouri Department of Corrections for an armed robbery he participated in back in August 1999.  He was convicted and sentenced in 2000, so he should have gotten out a bit ago except for one thing.  An oopsie.

Missouri lost him.  As in, they didn't bother to come and get him, so he decided to turn his life around. Gideon tells the story.

Anderson, who filed appeals and remained out on bond, was never taken into custody to start serving his sentence when all his appeals were denied. In an interview with ‘This American Life‘, he says:

he saw it as a sign from God, so he decided to transform his life. He went to school, became a master carpenter, got married, built his home, opened several small businesses and had four children. Anderson volunteered at his church and coached his son’s football team.
. . .
Nine years went by, however, and no one ever put the pieces together. Meanwhile, Anderson remained in St. Louis, never changed his name, registered three businesses through the state, paid taxes, maintained a Missouri driver’s license, and got married at the courthouse. He did not attempt to hide his presence in any manner.

Ironically, the DOC only realized he wasn’t actually in custody when they started planning his release from said custody.

It was, of course, a total cock-up.  Jessica Lussenhop in the Riverfront Times last month.

As part of Anderson's final appeal in 2004, an attorney named Michael Gross appeared on Anderson's behalf in Judge Rauch's court. They were joined by prosecutor James Gregory to update her on the status of the case — Gross had just filed the brief with the first line that read, "Movant is not presently incarcerated."
"[Gross] said the prosecuting attorney jumped up in court and said, 'Oh no, Mr. Anderson. We checked this morning. He's in Fulton Correctional Facility,'" recalls Anderson. "And so my lawyer thought that I had been arrested then. A day or two later, I called him up to see how court went, and he was like, 'Wait a minute, you're not in custody?' And I said, 'No!'"
Gross declined to discuss Anderson's case in depth but confirmed that Gregory "popped up" in court claiming Anderson was already in prison.
"At the time I assumed that he had more current information than I did, because it had been several days since I talked to Cornealious," remembers Gross. "That didn't prove to be the case."

So there you have it.  Missouri is incompetent.  Anderson is not just rehabilitated, he's a valuable, functioning, responsible,  asset, to society.  Who they're locking up for the next 13 years because . . . .

Because he owes them those years, that chunk of his life.  Because he did a bad thing 13 years ago, and he has to be made to suffer.  After all, how else will he rehabilitate himself?  Oh, wait, the prisons in Missouri are run by the Department of corrections.

So let me take you now from Missouri to Ohio where our prisons are run not by the Department of Corrections  but by the Department of Rehabilitation and Corrections.   Which sounds pretty good, although our legislature has made plain that we have no interest in rehabilitation.  Here's section 2929.11 of the Ohio Revised Code, captioned "Purposes of felony sentencing."

(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
(B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.
(C) A court that imposes a sentence upon an offender for a felony shall not base the sentence upon the race, ethnic background, gender, or religion of the offender.

Notice that there's not one word about rehabilitation in there.  Oh, sure.  The vast majority of the people we lock up will eventually be released to again prey on suddenly become productive members of society - because that's what people just naturally become after years of.  Well consider the surprise of Warden Albert Gunderson of New York's Woodbourne Correctional Facility as reported in The Onion.

It just doesn’t seem possible that an inmate could live for a decade and a half in a completely dehumanizing environment in which violent felons were constantly on the verge of attacking or even killing him and not emerge an emotionally stable, productive member of society.

What's that you say?  The Onion is satire?  They make the news up?  Shit.

As I keep saying, grace and mercy are about us, not them.  But even if you think they need to be earned.

The right thing, the decent thing, the sensible thing, the humane thing, is for Missouri to say,

Gee, Anderson.  We're sorry.  We fucked up.  You've spent 13 years with a cloud hanging over your head, everyday knowing that your life could be totally fucked up in a moment.  Yet never trying to hide or escape.  You've demonstrated in that time that rehabilitation works.  You've become the sort of person we can be proud to have around.  Now, go back to your family and your life.  

Or, of course, Missouri can say,

OK Anderson.  We don't give a flying fuck about any of that shit.  Sure you're a fine guy now, but the asshole stuff you did 13 years ago requires that we treat you like pond scum, ruin your life and your family's, and learn that all we care about is pain and vengeance. Ain't no room for human decency here. This is about inflicting justice.  Bend over and spread 'em.

Missouri?

But Then We'd Have To Kill You

It seems like every time they kill someone lately, it's a first.  Ever since supplies of thiopental started running out and Hospira got out of the business, it's been a struggle.  

There were the states like Georgia that imported it illegally only to have DEA seize the supply.  There was the stuff coming in from Dream Pharma located in the back of the Elgone Driving Academy in London.  And the three-drug sequence itself was problematic.  

Ohio led the way to a new system with a single massive dose of pentobarbital.  But Lundebck, the Danish manufacturer, didn't like that.   Missouri announced it would go with propofol, which successfully (if unintentionally) killed Michael Jackson.  But ooops.  Turns out that surgeons actually need the stuff for, you know, saving lives.  But that comes from Europe, too.  And it looked like if we started using it to kill they'd stop shipping it to the U.S. altogether.

Florida started off the new year with a single dose of Midazolam.  Ohio followed with an experimental combination of Midazolam and hydromorphone.  Ooops.  Ugly.  Maybe torture.  They were warned. Lawsuit.*

Other states, Texas naturally leading the way, are getting their drugs from compounding pharmacies which aren't particularly well-regulated and, well, who knows about quality.  But really, the idea is to get the person dead, and they seem to be achieving that.  (Well, except for Ohio and Rommell Broom, but that was back in the days when we actually had thiopental and anyhow Ohio has shown itself singularly incompetent at the business of killing its people - though there was that Kent State thing back in 1970.)

But gee, what's a poor state to do?  I mean, we have to kill these guys or the republic will crumble. Why don't they just understand that and go along with it.  Instead they keep throwing up roadblocks. Hell, every time we cook up some new idea the guys who are about to be killed go and file a lawsuit. And they want details.  Who? What? Where? How?  But see, we told them about thiopental and they went and got Hospira all huffy.  And then we said pentobarbital, and look what happened with Lundebeck.  

Fuck even down in Texas they had trouble when word got out about which compounding pharmacy was doing the compounding.  It recalled the damn drugs.  I mean, they were willing to aid and abet the killing, but only as they didn't get caught.

So Missouri, well, they're after keeping it all a secret.  Because, well, they said that it was a state secret - you know, like the shit Snowden revealed.  Well, no.  It's not that.  So maybe it's that everything and everyone is just secret.  Because if, say, the poor schmuck knew what doctor wrote the prescription for the drugs to kill him, and knew what pharmacy was doing the compounding, and what lab was actually testing the compounds to see if they were proper, well then, he might have the information he needs to tell the court that Missouri is planning to torture him to death.  (Or, of course, he might learn that he's going to get the best lethal injection anyone's ever had - though you'd think that if that's what he'd learn the Show Me State would be all about showing him.)

Anyway, the guys on the row filed suit in federal court and asked for the info and the state refused but the district court judge said to turn it over.  So the state brought this mandamus action to keep things secret.  And a three judge panel of the 8th Circuit said they could keep the name of the MD who prescribed the drugs secret, but they had to turn over the info about the pharmacy and the lab.  Which would, once again, end the republic.  Or at least end the prospect of executing anyone, which is about the same thing.  So the whole 8th Circuit took it up.  

And, you know, secrets. 

In addition to these arguments on the merits, the Director asserts that no other adequate means is available to attain the requested relief. He argues that if discovery proceeds and an appeal is allowed only after judgment, then it is likely that active investigation of the physician, pharmacy, and laboratory will lead to further disclosure of the identities. These disclosures, he contends, would trigger collateral consequences that would prevent the Director from obtaining the lethal chemicals necessary to carry out the capital punishment laws of the State. He cites, as an example, a letter dated October 2013 from a compounding pharmacy in Texas that demanded the Texas Department of Criminal Justice return a supply of compounded pentobarbital sold for use in executions, because of a “firestorm,” including “constant inquiries from the press, the hate mail and messages,” that resulted from publication of the pharmacy’s identity. R. Doc. 189-1, at 6-7. See Landrigan v. Brewer, 625 F.3d 1132, 1143 (9th Cir. 2010) (Kozinski, C.J., dissenting from denial of rehearing en banc) (“Certainly Arizona has a legitimate interest in avoiding a public attack on its private drug manufacturing sources . . . .”). 

And so the court said it's all secret and can't be revealed and don't go there.  And the state said

Whew.

And wiped it's brow.  Forgetting about Edward Snowden - which in this case is Chris McDaniel of St. Louis Public Radio. Because shit gets out.  (Which, as a complete aside, is why I don't believe the grand conspiracy theories about the Kennedy assassination.  I mean, the Warren Commission report always seemed to me to smell of cover up, the desperate need to declare that Oswald acted alone which struck me then and still does as far fetched.  But all the grand conspiracy theories collapse under their own weight on my inability to believe that so many people - and we're talking about an enormous number - would have managed to keep it a secret all these years.) 

And so we pretty much know that the drugs came from the Apothecary Shop in Oklahoma.  And as McDaniel tells us,

The quality of compounded drugs, unlike manufactured drugs, varies from batch to batch. Inspections by the Missouri Board of Pharmacy have found that about one out of every five drugs made by compounding pharmacies fails to meet standards. Lawyers representing death row inmates argue that the identity is important, so they can find out if the pharmacy has been cited for shoddy practices or is even properly licensed.
The state has offered reassurances that the drug is pure and potent by having a testing lab examine it. However, the testing lab is a controversial one. Analytical Research Laboratories (ARL),  in Oklahoma City, OK, approved a batch of steroids for commercial use that ended up killing dozens in 2012. The deaths sparked debate over the regulatory practices for compounding pharmacies, which aren't regulated by the Food and Drug Administration like drug manufacturers are.
The inmate's pharmacy expert also points out the lab report found an unknown substance in the drug, but the lab still approved it.

Which probably isn't making Herbert Smulls feel confident as he prepares for the people of the state of Missouri to kill him Wednesday.

  In re George A. Lombardi

--------------

*I'm not putting in links to this background stuff except for the lawsuit, filed Friday, and the link is to the Columbus-Dispatch-posted pre-filing version of the complaint, which I assume is the same as the actual filed version.  I've written about most of this.  It's been in all the news.  You can look it up.  

Supremacy Clause? What Supremacy Clause? We Don't Need No Supremacy Clause.

It's known as the Supremacy Clause.  You'll find it in the Constitution.  Article VI, Paragraph 2.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Among those who are passionately committed to forcing the federal government to adhere to the Constitution, every jot and tittle of it, well, maybe not that part.  Because, you know.

Welcome to the Show Me State where, according to John Schwartz in the Times, they aren't just nibbling around the edges.

Unless a handful of wavering Democrats change their minds, the Republican-controlled Missouri legislature is expected to enact a statute next month nullifying all federal gun laws in the state and making it a crime for federal agents to enforce them here. A Missourian arrested under federal firearm statutes would even be able to sue the arresting officer.

That's different from Colorado and Washington making possession of marijuana legal.  They didn't say that federal drug laws can't be enforced there.  They didn't say that federal agents who try to enforce federal law will be arrested and criminally charged.  They just said that state law will allow possession.  There's a hope that the feds will leave them alone, but they didn't try to require it.  

Because, you know, the Supremacy Clause. 


But in Missouri?  Well, maybe.  The law passed in both houses of the legislature.  The Governor, Jay Nixon, vetoed it.  Because, it was unconstitutional.  You know, the Supremacy Clause.  He laid it out, with full legal analysis. (It's reproduced at the bottom of this post.)  But the bottom line, really, is in the sentences that begin the last 2 paragraphs on page 2.

Of course, an individual state is not empowered to determine which federal laws it will comply with, nor is it empowered to declare a federal act to be unconstitutional. . . .

The doctrine of supremacy is as logically sound as it is legally well-established.

You know, the Supremacy Clause.
 
But the Missouri legislature?  They believe in gun rights and the Constitution.  Except, you know, The Supremacy Clause.  And unless a couple of people switch their votes, they'll be overriding the veto next month.

And then?

A federal court will declare it unconstitutional.  Which it is.  

Regardless of whether you think it's a good idea.

Because, you know, the Supremacy Clause.  Which "We the People of the United States" adopted as part of the founding document.  One of the purposes of which, you may recall was to 

ensure domestic Tranquility.

It's easy to make fun of this sort of thing, but in fact it's dangerous.  If states are free to nullify parts of the Constitution, we stop being a nation and become instead a coalition.  There's no uniformity because there's no federal law.  God knows there are too many, but if they were all optional.

And there's that oath of office thing.  Which brings me, at last, to Jay Barnes.  There are 109 Republicans in the  Missouri State House.  108 of them voted for this bill.  Jay Barnes didn't.

The lone Republican opponent of the bill in the House, State Representative Jay Barnes, said, “Our Constitution is not some cheap Chinese buffet where we get to pick the parts we like and ignore the rest.” He added, “Two centuries of constitutional jurisprudence shows that this bill is plainly unconstitutional, and I’m not going to violate my oath of office.”

Because, you know, the Supremacy Clause.  Which is actually part of the Constitution. 

   Jay Nixon Veto Statement