Calling Time Out on an "Imperfect System"

[W]hen the ultimate decision is death there is too much at stake to accept an imperfect system.

That's Jay Inslee, Governor of the State of Washington, earlier today explaining why he called a moratorium on executions.

Bill Otis apparently hasn't weighed in yet, but his less hyperventilating, more restrained venom-spewing, not quite so vitriolic co-blogger at Crime & Consequences, Kent Scheidegger, has.  

This action is one more in a series of Profiles in Cowardice that we have seen in multiple states.  Get elected first, then drop the bomb.

Scheidegger begins with the tale of Jonathan Lee Gentry who's spent 22 years on death row and was probably running out of time.  None of Islee's stated reasons for a moratorium, Kent says, apply to Gentry who should clearly be killed ASAP.  Islee should lead, Kent says, making the death penalty swift and certain and ensuring that it's applied more frequently.  That'll solve all the problems.

Assuming, of course, that you begin with the premise that the more we kill the better we are.

In any case, Islee wants to be clear that he's not being soft on crime, not wimping out on the 9 men on death row in The Evergreen State.

Let me say clearly that this policy decision is not about the nine men currently on death row in Walla Walla.
I don’t question their guilt or the gravity of their crimes. They get no mercy from me.
This action today does not commute their sentences or issue any pardons to any offender.
But I do not believe their horrific offenses override the problems that exist in our capital punishment system.
And that’s why I am imposing a moratorium on executions. If a death penalty case comes to my desk for action, I will issue a reprieve.
What this means is that those on death row will remain in prison for the rest of their lives. Nobody is getting out of prison -- period. 

Of course, those on death row were, absent some very substantial relief, going to "remain in prison for the rest of their lives," anyway.  The only question was whether that lifetime of incarceration would end with a state-sanctioned murder. Indeed, since Islee isn't actually commuting any sentences, unless something changes, those men may be executed as soon as the next governor takes office.  Like Governor Kitzhaber in the state just to his south, Islee's only assuring that the system he identifies as too broken to allow executions won't allow them while he's in office.  

I don't want to seem grudging.  I am in fact delighted, as I was last week when our own John Kasich granted an 8-month reprieve to Gregory Lott.  He won't be executed next month.  Nobody will here in Ohio (the state that, as a friend once said, is "round at the ends and tall in the middle") until maybe May when Arthur Tyler's up.  But Lott's still got a date, just one closer to the end of the year.  

Kasich didn't give much of an explanation, but it's clear that he wants to give the prison folk more time to figure out how to avoid yet another mess like they had with the gasping-snorting-choking murder of Dennis McGuire which pretty much cemented Ohio's reputation for ineptitude in lethal injection.

Still, and regardless of duration or motive, I am as I said delighted when there's a reprieve or a moratorium.  Every day we don't kill is a good day.  Every time someone isn't killed today, well, maybe it won't happen tomorrow, either.  And it's pretty clear that both Kitzhaber and Islee would like to see the legislature do what they're not willing to do themselves:  Call it off.  Turn moratorium into abolition.

Of course, Oregon and Washington are left coast states with small death rows and history of not killing bunches of people.  Here, in what come of our license plates refer to as "The Heart of It All," we have a large but shrinking death row.  And more than twice as many executions as any other state in the north. And while Governor K is pretty clearly not an enthusiastic, kill-em-all-last-week supporter of the death penalty, both he and Ed Fitzgerald, his Democratic opponent in the November election this year, have specifically affirmed their commitment to state killing.

Our midwestern live-and-let-live keeps losing out to our authoritarian kill-'em-before-we-change-our-minds. Yet even here.

Reprieves and moratoria may not be abolition.  But they're a step along the way.  And every life saved today really is an absolute good. 

  Governor Inslee's Announcement of a Moratorium

Organ Harvesting in Ohio

When I say, as I do, that you never know what will happen until it does, well, I could be talking about Ronald Phillips.

Yesterday's news was that Ronald Phillips wanted to donate his organs - kidney to his mother, heart to his sister, the rest of them to whoever - and that DRC said he couldn't.  It was too tough to figure out how to harvest his organs and then kill him.  I wrote about that yesterday, noting that they could do it if they wanted, but also discussing the fact that no state has yet allowed a person on the cusp of execution to become an organ donor.

That was then.  This is now.

   PRESS RELEASE_ Kasich Stays Execution of Ronald Phillips to Assess Medical Feasibility of Organ Donation -...

OK, sis won't get the heart.  But mom just might get a working kidney.  Someone else might pick up a lung or a cornea or -- hell, I don't know. 

Ohio was the first state to use a single drug to kill.  It was set to be the first state to kill with a mix of midazolam and hydromorphone.  It's the state, as I said the other day, that does the most extreme long-range planning of executions as we have prospectively dead bodies lined up through January 2016.

And now we're set to be the first state to actually defer an execution so that the guy's organs can be harvested.  Not, of course, any harvesting that would kill him.  He mustn't die doing good.  The killing, the murder, must be clean, direct, performed by prison guards, in our name.

I'm not being an apologist.  What Ron Phillips did, his brutal rape and murder of Sheila Marie Evans, was surpassingly horrific.  But this isn't about excusing him.  Noone seriously suggests that.  But here in Ohio, "The Heart of It All" as one of our tourist slogans says, enormity begets enormity, blood will have blood.  Though it cannot undo.

Still, Ron Phillips may be able to give his mother a working kidney.  Some kid might get to see because of him, someone else to breathe.  And then . . . .

Come July 2, we'll once again be attending vigils and watching, and waiting.  While they pump the drugs.

From King Lear, Act III, Scene ii.

Blow, winds, and crack your cheeks! rage! blow!
You cataracts and hurricanoes, spout
Till you have drench'd our steeples, drown'd the cocks!
You sulphurous and thought-executing fires,
Vaunt-couriers to oak-cleaving thunderbolts,
Singe my white head! And thou, all-shaking thunder,
Smite flat the thick rotundity o' the world!
Crack nature's moulds, an germens spill at once,
That make ingrateful man!

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

Really, They Should Have Wanted To Know

Here was the plan.

On June 6, a team of corrections officers were going to strap Abdul Awkal down to a table, stick needles in his arms, and pump him full of pentobarbital.  If all went smoothly (far from a sure thing, this was Ohio, poster-child state for incompetently carried out state killings), he'd be dead by 10:15 or so.  Maybe a couple of minutes later.

It was all a go.  The Supreme Court of Ohio set the date.  The Parole Board said to kill him.  The Governor signed off on it.

But there was this messy fact.  Awkal was nuts.  Seriously bonkers.  He didn't understand what was going on.  He was not, that is, legally competent to be executed.  Maybe.

They'd been arguing about this for a while, and Awkal's lawyers kept losing.  Until, with two days to go, the trial judge decided he should hold a hearing.

Awkal Probable Cause 

The problem is that a hearing takes time. Schedules have to be matched, witnesses called, rulings made.  And then there are appeals.  But Awkal was to be killed on the 6th.  Judge Friedman wanted a hearing.  But

HEARING TO BE SET SUBJECT TO AVAILABILITY OF EXPERT WITNESSES.

Really?  When?  After the killing?  Ordering a hearing is great, but once the Supreme Court sets an execution date, it's the only Ohio court that can stop it. So they went to the Supreme Court to get a stay. 

And the next morning, June 5, one day to go, the court told them to pound sand.

Awkal stay denied

It wasn't unanimous, but it didn't have to be.  No stay.  No continuance to find out if the Constitution allowed his execution.  Not our problem, said 5 of them.  Off with his head.

Which really might have ended it.  Except that Governor Kasich, whose record in these things is proving respectable, granted a reprieve.

Awkal warrant of Reprieve

Two weeks, he said.  Which would be Wednesday.

And Judge Friedman held his hearing.  The one to determine whether killing Awkal would violate the Constitution.  The one the Supremes were trying to stop by refusing a stay.  And the judge determined that, hey, you know what?

He's not competent and can't be executed.  Though that might change down the road.

Awkal Competency ruling

Except, you know, Friedman can't actually stop the killing.  Because, as I said, once the Supreme Court sets an execution date, it's the only Ohio court that can stop it. 

Which they did Monday afternoon.  With about 36 hours to go.

Awkal stay

And there it stays.  Unless and until his competency is restored.  Which it might be if they give him the right drugs. Or unless the court of appeals or the Supremes decide that Friedman got it wrong.  Which, since they didn't want to give him a chance to get it at all . . . .

Sigh.

Anyone mention that this is all pretty fucked up?

Still, no execution on Wednesday here in the Buckeye State.

Exhale.

Planning Ahead in the Buckeye State

I could, I suppose, make this an update to the post I put up a little while ago about the Parole Board's recommendation against clemency for Bill Slagle.

Good news, however temporary and however little it may mean in the long run, remains good news. And its rare enough that it deserves its own place.

Besides, it's not really more than incidentally and coincidentally related to what the Board did.

Kasich called off the killing.

Not permanently.

Not for reason having anything to do with Billy Slagle.

But another month without a killing is something to celebrate.

Billy Slagle's still got a date.  August 7, 2013.

Yes, that's right, 2013.  Just under 2 years from now.

Because we know how to make a to do list in Ohio.

You can look at it as two more years of torture.  Or two more years of life.  Maybe both.

Reprieve.

Slagle Reprieve

Whipsawed or None Dare Call It Torture

• July 8:  Judge Gregory Frost finds that Ohio's execution practice is so seriously fucked up that it probably violates the equal protection rights of the guys being executed.  So he calls a halt to the execution of Kenneth Smith scheduled for July 20.  The order applies only to Smith, but it's logic applies to everyone facing execution in Ohio.
• July 13: Attorney General Mike DeWine announces that the state won't appeal Frost's order.  Instead, it will "take that decision and follow it and make revisions and comply with it." Whatever that means.
• July 20, Morning: Brett Hartman, scheduled to be murdered by the state of Ohio on August 16, asks Judge Frost to halt his execution just like he did Smith's.  And for the same reasons.
• July 20, Later in the Morning: Parole Board unanimously says that Governor Kasich should deny Hartman's request for clemency.
• July 20, Afternoon: Frost holds telephone conference with Hartman's lawyers and lawyers from the Attorney General's office.  Hearing on Hartman's motion is scheduled for August 2.
• July 21: Kasich grants Hartman a reprieve, until November 13, 2012.  The press release calls it a "postponement" and explains that this was forced on the Governor.

  The postponement will give the Department of Rehabilitation and Correction the needed time to implement changes to the execution protocol that were mandated by the judge’s ruling.

Imagine, now, Brett Hartman.  In 2009, he came within a week of execution when he was granted a stay.  This time it's three and a half weeks.  But look at the last 13 days.  And especially the last 36 hours or so.

Albert Camus recognized a piece of it.

What then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? For there to be an equivalence, the death penalty would have to punish a criminal, who had warned his victim of the date at which he would inflict a horrible death on him, and who from that moment onward had confined him at his mercy for months. Such a monster is not encountered in private life.

But if Camus understood the horror of waiting, he didn't even imagine the psychosis-inducing cycles of hopes raised and dashed and raised and dashed - even within hours.

Regardless, Hartman gets another 15 months.

Billy Slagle, on the other hand?  The governor's press release sets the stage for him.

At present, the next scheduled execution is that of inmate Billy Slagle on September 20, 2011.

Hartman Reprieve

PERSPECTIVE: The Killing (To Resume Soon?) State

What's next?

We've got a breather here, though it may not be much of one. Officially, it's two men long and lasts only until December 8 when Ken Biros is still supposed to be killed. Doug Berman's calling it a "mini-moratorium," and if it really only lasts that long it's hardly worthy even of that name.

Romell Broom's re-execution (a term you don't find many opportunities to use) is on hold until after Judge Frost rules after a hearing at the end of November. Ken Biros (scheduled to be killed in December) and, it now appears, Lawrence Reynolds (March 9 is his new execution date) are going to be part of that hearing, too, though only Broom will have the claims about trying to kill him twice.

While everyone prepares for those hearings and whatever comes out of them, litigation on other fronts is ongoing.

The Ohio Supreme Court today ordered the Attorney General to respond to Broom's petition for a writ of habeas corpus. Broom asked that court to prohibit further efforts to kill him. Don't hold your breath. On the other hand, we're in something very close to uncharted legal waters here. Remember, the only other time an execution failed so badly that they just gave up one day was 16-year-old Willie Francis in Louisiana in 1946. In that case, and after the Supreme Court gave the go-ahead, in a decision with no serious precedential value today, they killed him.

Then there's Lawrence Reynolds. The Sixth Circuit's 2-1 decision yesterday to order a stay and remand the case for a hearing before Judge Frost is only partially mooted by Strickland's reprieve. The reprieve effectively moots the stay unless Judge Frost takes till after March 9 to decide, which is possible but hardly the sort of thing anyone would be counting on. On the other hand, the remand for hearing before Judge Frost remains effective. So Reynolds is back - or is he?

Press reports indicate that before the Governor granted the reprieve, Attorney General Cordray had filed in the U.S. Supreme Court to lift the stay imposed by the Sixth Circuit. As of this writing, the Supreme Court website doesn't have any indication of that on its docket. But Law Dork, in this important post includes a link to the AG's filing. And according to the New York Times,

In a statement issued late Monday, Mr. Cordray said the appeal would continue despite the governor’s decision to postpone the executions.

Law Dork points out (here) that other comments by Cordray indicate that he's an enthusiastic supporter of executions whose main concern about the death penalty is that we don't kill enough people. So it seems he's pushing for broad authorization to shut down the whole LI debate in Ohio. What's interesting is that if the Court were to agree to hear some broad-based challenge it would probably grind executions in this state to a halt for a while. So maybe he just wants a quick ruling that the Sixth Circuit had no right to grant a stay, which would probably end other Sixth Circuit stays based on Broom, but might have no broader consequence.

In any case, and I should note that I have no particular track record on these predictions, it seems unlikely that SCOTUS will step in to declare unproper a stay which has been effectively mooted. In fact, it's not clear that the Court would really have the authority since there's no longer a case or controversy on that to resolve.

That's just what's readily going on in the courts.

Meanwhile, Alan Johnson has a story in the Columbus Dispatch on just what is cruel and unusual punishment in violation of the 8th Amendment in which he quotes a few of the comments to earlier stories. It's ugly out there.

And then, of course, there's the ongoing study by Ohio officials about how to do things differently. Well, maybe there's a study. Strickland says that DRC has been working diligently on a back up plan since they failed to kill Broom. There's absolutely no other evidence that it's true, and there's good reason to believe that they've done nothing. Certainly, they've been remarkably quiet about anything they have done. But let's consider.

The reprieves were obviously the right thing to do. It would be, at best, embarrassing to carry out executions while the courts are actually reviewing the question of whether the last execution was so badly screwed up that future executions would be unconstitutional. Of course, Strickland didn't say that was the reason for the reprieves (and maybe it wasn't). What he said is that DRC is trying to come up with a back up plan.

OK, every system should have a back up of some sort. According to Judge Sutton of the Sixth Circuit channeling Cordray's office, the Ohio protocol calls for stopping the execution if they can't make it work in two hours. In fact, the protocol calls for a huddle when and if they decide they're stuck. And it allows them to quit at that point. Essentially, the protocol says, "We'll cross that bridge when we come to it."

But this is a plan about killing. You know, when murder method A doesn't work, go on to murder method B. That's stark. And Strickland says they're making great progress in finding a method of lethal injection that doesn't involve lethal injection:

Since September 15, Department personnel have diligently researched a range of potential back-up or alternative procedures for lethal injection that would comply with Ohio law. Although they have made substantial progress in this regard, more research and evaluation of back-up or alternative procedures is necessary before one or more can be selected. In addition, the selection of a back-up or alternative procedure will require training and other preparation by the Department in order to incorporate it fully into the Department’s lethal injection protocol.

So it's hard to find and hard to implement, but they're making great progress - which I assume means they've decided that lethal injection by insertion of a urinary catheter is off the table as an option. At least I hope so.

In any event , there's now at least and at last there's some acknowledgment that our system needs help. But it needs it quickly. By insisting in his reprieve order that Biros should still be killed in December (Judge Frost may have something to say about that), Strickland has put a strict limit on how long they can take to find and implement a new method.

An AP report from this morning says that they're

considering using lethal injections into inmates' bone marrow or muscles.

The report also says "that everything is on the table," which pretty much means that nothing is. (Maybe they will result to the catheter.)

It keeps coming back to this: The desire to kill runs up against the difficulty in killing. I know I'm being naive here, but you gotta ask if it's worth the effort. In that context, it's important to note that some politicians are willing to jump into the fray and take a real position.

Jennifer Brunner, the Secretary of State who's running in the Democratic Primary against Lee Fischer in the hope she'll get to run for the Senate next year, published this piece in the Huffington Post right after the Broom fiasco. The death penalty should be ended, she says, and certainly we need a moratorium. In Massachusetts, Democrats running for Ted Kennedy's seat in the Senate are arguing about who's more sincerely committed to abolition.

And it's not just the Democrats. Travel down to Texas and you'll find Senator Kay Bailey Hutchison, running in the Republican primary for governor against Rick Perry, taking him on over effectively shutting down the commission that was about to hear and review the evidence that Cameron Todd Willingham, executed in 2004, was factually innocent:

I am a supporter of the death penalty, but I also believe that 100 percent of the people who also believe the death penalty is a deterrent think we need to have all of the evidence and all of the technology to assure that when such a punishment is given that we have all of the evidence and the capability to assure that the person is guilty.

I definitely disagree with the governor changing the commission just before the hearing that would perhaps lend some light on the technology that would determine whether arson was a factor.

It's another case where the governor is trying to maintain a loyalty to him but not to the responsibility person on the commission had taken to the people of Texas and our judicial system.

Ya think?

So maybe a tide is turning. Maybe it's time. A little political courage might go a long way right about now.

Start with this: It's not about equivalence. We're not willing to match what they did. Once we abandon that pretense, we can give up the whole killing thing. Murder is murder.

Sometimes it really is that simple.