Act of God?

Let us return, briefly, to the Peach Tree State where they keep deciding not to kill Kelly Gissendaner for reasons that have nothing to do with their urgent desire to kill Kelly Gissendaner.

You'll recall that she was to be killed Wednesday last week.  But then, drat, a couple of inches of snow. Can't have that.  It's the south, after all.  People don't know how to drive in the snow so how would they get to see.  State killing as spectator sport.  Nope. 

So they had a rain snow delay.*  Make up game killing was scheduled for Monday this week.

Gissendaner's lawyers took the chance to ask the Board of Pardons and Paroles to reconsider its decision to have her killed.  They refused.

But it turns out that the pentobarbitol they were going to kill her with, previously tested by someone somewhere 

who assured the killers that the drug gathered from someone somewhere

were good

was mysteriously cloudy.

Now, if Georgia hadn't decided, and the courts agree, that everything connected to the drug must be a deep dark secret, done in a cave (no more pictures, sorry), by He Who Must Not Be Named, they might have actually got drugs they could trust and had them vetted by someone they trusted and . . . . Nah.

Ah, fuck it.  They decided not to kill Kelly (and also not to kill Brian Terrell next week) while they tried to figure out just what mysterious force turned pure pentobarbitol into a milk shake.

I don't believe in god, which makes me resist the urge to suggest some sort of divine intervention.  

But for those who do . . . .



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*It's probably not relevant that the Braves from Atlanta lost the first game of the exhibition season to the Mets yesterday and that the Mets are from New York where it snows with some regularity.

January 12, 2017 - By Means Unknown

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

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

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

Exodus 21: 23-25.

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

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

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

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

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

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

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

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

  Phillips v. DeWine

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

The Snowdens of Yesteryear

I've told this story before.

It was back when I was Legal Director of the ACLU of Ohio, and I was to be debating some hot-shot law school professor from some hot-shot law school and about the USA Patriot Act and other post 9/11 measures that involved ceding liberty for the illusion of greater safety.  And, not incidentally, we weren't to know the details, because if they told us, they'd have to kill us.

National security, don't you know.

I'd done this gig before.  I talk about ephemeral benefits and how all these increased powers to protect us against terrorists are actually being used to catch drug dealers and on-line gamblers while invading the privacy of ordinary folks and how the government justifies all this by scaring the public with hypothetical stories of the horrors that could have been prevented and maybe were (but who knows because if they told us the truth it would have given away the store to terrorists) so it was all worth it.
And then he'd talk about protecting America and how we have to give up a bit of privacy for security in this new age.

So we flipped a metaphorical coin, and he went first.  And completely changed the script.

He didn't talk about safety or security or trade offs we had to make because 9/11 changed everything.  Instead, he said that the Pres (it was Shrub at the time, but that was irrelevant to the position he was staking out) had, per the Constitution, plenary unreviewable power to do whatever he thought best in regard to national security and defense.  We had no right to know what he was doing.  Congress had no oversight authority and any it attempted to exercise was unconstitutional.  Ditto the courts.  If we didn't like what he was doing (although we weren't to know what it was) our remedy was to vote him out of office at the next election and replace him with someone else who was to act in secret but whose acts (again unknown to us) we preferred.

Really, that's what he said.  Law degrees, government experience, law review articles, and all.

Which brings me to Edward Snowden and NSA and government secrecy and whistleblowers and finally to His Barakness who said,

I welcome this debate.  And I think it's healthy for our democracy.  I think it's a sign of maturity, because probably five years ago, six years ago, we might not have been having this debate.  And I think it's interesting that there are some folks on the left but also some folks on the right who are now worried about it who weren't very worried about it when there was a Republican President.  I think that's good that we're having this discussion.

Which is, of course, vacuous bullshit of the highest order.  It might even be true except that it's almost wholly content free.  And where there is content, it's misleading.

See, there are these secret surveillance programs where they get everyone's metadata from Verizon and would never never get more and you can be sure because they said that everyone in Congress knows about it and knew about it and they all think it's hunky-dory including those who've been trying to complain about without revealing anything and those who despite knowing all about it are wholly ignorant of it.  And there's strict oversight by the courts which simply say, "how high?" when told to jump.  And it's all a secret from the American people because if we know, then so do the terrorists and if they know Verizon makes their data available to the feds then they'll switch their iPhones to AT&T and that'll make the whole thing worthless.

And ditto for the Prism thing and reading your e-mails and text messages and watching the youtube of your kid rolling around on the carpet in front of the TV or striking out at little league or performing in the school assembly or giving instructions on how to turn sudafed into speed.

And so while thousands urge President O to pardon Snowden as a national hero and others urge his assassination as a traitor (drone strike on Hong Kong, anyone?) DOJ plans simply to turn him into the next Bradley Manning and put him in prison forever - if they can just get their hands on him.  Because he opened the door to the candy store.

But the debate?  He welcomes it.  It's "healthy for our democracy."  Because, you know, the public should get to weigh in on and evaluate the trade-offs we're making between safety and security.  EXCEPT, OF COURSE, THEY HAVE NO RIGHT TO KNOW ANY OF THIS AND HAVE NO SAY.  (Or should that last have been in microscopic print like the fact that one side effect of the prescription drug advertised on TV is that it might turn you into a jellyfish - or a psychopathic killer?)

Over at Popehat, Clark wrote "Edward Snowden, F____ yeah!" which Matt Brown echoed.  Scott Greenfield thinks Snowden's mostly a distraction from the real issue - our lost privacy, a position aligned with Mark Bennett's call for action.

So what’s the solu­tion for those of us who are not will­ing to sell lib­erty cheaply?

We could take the Fried­man approach and say “this far but, golly gee, no far­ther please” in the assump­tion that by giv­ing up some free­dom we can pre­serve the rest. But this approach is doomed to fail­ure because even if we suc­ceed in fight­ing the last war, some­thing else will come along that jus­ti­fies, in the minds of the booboisie, less free­dom. Mean­while, the Fried­man approach trains the 99% to give up essen­tial free­dom for tem­po­rary safety, teaches the gov­ern­ment that we will not push back, and so has­tens liberty’s even­tual demise.

Or we could say “this will not stand” and teach the booboisie to push back. We might never get more than 50% on the side of lib­erty in the face of fear, but we do not need a major­ity to prevail.

What we do need, though, is to know that there's an issue.  Which is where Snowden comes in.  
I don't know, maybe he did jeopardize national security and a nuclear weapon will flatten Sioux City, Iowa because the FBI and NSA didn't find out that some guy with an area code in Saskatchwan has been texting to someone in  Portales, New Mexico.  Frankly, it doesn't seem likely.  I mean what he really did is confirm what the more cynical of us have understood for some time.

What they can, they will.
What power they have, they will abuse.
 

Justice Roberts, with whom I rarely find myself in agreement (and would he stop with that smirky smile, already), got this much exactly right in U.S. v. Stevens.

But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. 

What's true of the First is equally true of the others.  But it's true only if we push back.  And we can only push back effectively if we know where the front lines are.  Which is what Snowden and the Guardian have just told us.  Maybe.  Or maybe their the middle lines they've revealed.  Hell, it might even be the backfield.  But it's a starting point.

Let the debate Obama falsely claims he wants, begin.  And then throw it aside, because we don't need to talk about it.  We need to rise up and say "NO MORE."

Or we can join with Yossarian and ask

Where are the Snowdens of yesteryear?