Tuesday, May 5, 2015

Got Plans for the Next 3 Years? How about Burning Someone at the Stake?

In May, 1984, John David Stumpf shot and killed Mary Jane Stout.  (He shot her husband, Norman, too, but Norman didn't die.)  He's been sitting on death row in Ohio for the last 29 years.

In January 1997, Doug Coley shot and killed Samar El-Okdi. He's been on death row in Ohio since 1998.

In June 2001, Stanley Fitzpatrick killed Shenay Hayes, Doreatha Hayes, and Elton Rose.  He's been on death row in Ohio since 2002.

This morning the Ohio Supremes, Justice O'Neill dissenting because he believes the death penalty unconstitutional, set dates for their executions.  January 3, March 14, and May 30.

Of 2018. 

Yep.  Around three years from now.

They say that justice delayed is justice denied.  I say, regularly in these posts, that I don't know what justice is.  I do, however, sometimes know what it's not.

If it made sense to kill Stumpf and Coley and Fitzpatrick, if it was wise and moral and proper, if it was just frgodssake, maybe years ago.

Stumpf, if they kill him as now scheduled, will have been on death row for somewhere close to 34 years.  There are reasons, of course.  He was one of the early cases.  The Ohio Supremes were still working at getting a handle on how our death penalty law works.  (It keeps changing, and the Supremes keep fiddling with how it works, but in the early days of the law there was a whole lot more uncertainty.)

And every case has issues that need to be resolved.  And good god, Ohio just released three guys who'd each spent 39 years in prison for a killing they didn't commit.  I mean, it's worth taking the time to be sure.

But 34 fucking years?

Well, yeah.  'Cause that's what it takes.  And even then there are issues, and frankly, I'm far from convinced any of these three will get killed as scheduled.

So we have a system that's expensive and disfunctional.  It denies justice.  It's imperfect.  And oh, yeah, it's immoral.

But by god, we've got plans for 2018.

* * * * *
I was just looking in my calendar.  I don't have anything scheduled after a doctor's appointment in September of this year.  

2016?  2017?  Hell, I've got more than two years of nothing before they plan to kill Stumpf.  

Of course, he doesn't have anything scheduled either.  Except for when they do the count every day to make sure none of the guys have escaped.

* * * * *
Meanwhile, at the Supreme Court of the United States, they're working on the really important issue:
When is it constitutional to burn someone at the stake?
The case is Glossip v. Gross and the formal subject is Midazolam and the dangers and incompetence of lethal injection as a method of government sanctioned murder (why don't we just take these guys out with drones?) as demonstrated in Ohio and Oklahoma and Arizona.  But when you're a SUPREME COURT JUSTICE you can ask pretty much anything you want during oral argument.  

Which Elena Kagan did, posing the question to Patrick Wyrick, Solicitor General of Oklahoma who responded:
                   JUSTICE KAGAN:  So suppose that we said, we're going to burn you at the stake, but before we do, we're going to use an anesthetic of completely unknown properties and unknown effects.  Maybe you won't feel it, it, maybe you will.  We just can't tell.  And ­­-- and you think that that would be okay.
                 MR. WYRICK:  I think that that ­­ a Petitioner in that case would have no trouble meeting -- satisfying the burden this Court imposed in Baze, which is showing that that puts me at a substantial risk, objectively intolerable risk of severe pain.  That -- that threshold showing would be incredibly easy to make in that case.
                 JUSTICE KAGAN:   No, I'm -- I'm saying, because you just don't know about the anesthesia.  Maybe the anesthesia will cover all that -- the pain of being burned at the stake or maybe it won't.
When Robin Konrad who represented the guys on the row in Oklahoma stood up for rebuttal, Sam Alito (who's concerned about guerrilla warfare on the death penalty) returned to that all-important constitutional question. 
                          JUSTICE ALITO: But you're not sure that being burned alive ­­ that you think there are circumstances in which burning somebody at the stake 17 would be consistent with the Eighth Amendment?
                         MS. KONRAD: It is ­
                         JUSTICE ALITO: It's an irrelevant point, but you're ­­ you're not certain about that?
                         MS. KONRAD: Well, what I'm saying is that this Court has --­­ the founders say burning at the stake is unconstitutional. It creates an Eighth Amendment violation. It's cruel and unusual. But in your hypothetical, if there was a way to ensure that that was done in a humane way, there could perhaps be. That --­­ I don't think that any ­­ any State would go to try to do that, because we move forward evolving ­­--
                         JUSTICE ALITO: That's an incredible answer. You think that there are circumstances in which burning alive would not be a violation of the Eighth Amendment? Burning somebody alive would not be a violation of the Eighth Amendment?
So there it is.  The Oklahoma Solicitor General, who favors lethal injection, tells Kagan that burning at the stake is always unconstitutional.  The lawyer for the guys on death row tells Alito that, hey, maybe it would be OK.

Really, you can't make this shit up.


  1. These guys are chuckleheads of the first water. Are they born this way, or do they have to work at it to be this dumb?

  2. I read the position of the lawyers in Glossip v Gross differently, considering the circumstances. When a Supreme Court Justice asks you "is X constitutional", the real question is: "do you think 5 of us would say it is". In that light, Konrad's answer makes a lot more sense; the Supreme Court has shown infinite willingness to give the government complete free reign to do whatever it likes as long as the government can give it an excuse.

    Ohio's solicitor takes the position "of course it's not" because it behooves Ohio to look reasonable, or at least as reasonable as a collection of people can be when they're spending millions of dollars in pursuit of having old people in robes tell them they can murder people. Konrad is stating the obvious: there's pretty much nothing the current court is willing to say is unconditionally unconstitutional, which is in my mind an absolutely inexcusable failing of the court.

    1. Oklahoma, not Ohio. But sure.

      Really, I was going after the absurdity of the discussion, not the meat of it. But Konrad's answer is still wrong. If the point is, "You'll buy anything," it wasn't really being made. It suggested, rather (and this was at the heart of Alito's response to it) a failure to come to grips with the claim that some things are beyond acceptability regardless of pain and that painlessness can't be the only test.