September 27, 2006
A lethal hearing (in the wrong place?)
Howard here at How Appealing has collected some of the media coverage of the first day of the trial in federal district court concerning California's lethal injection protocol. As this Los Angeles Times article explains, the "four-day trial here is one of several court proceedings around the nation in which lethal injection is under challenge as a violation of the U.S. Constitution's ban on cruel and unusual punishment."
I continue to be disappointed, as explained in this post and this article, that scrutiny of execution processes is taking place mostly in federal district courtrooms rather than in the halls of Congress or state legislatures. As I have said before, anyone genuinely interested in federalism, or sentencing consistency, or orderly government has to find the patchwork and disparate litigation taking place in federal district courts nationwide unseemly and counter-productive. Congress could, at the very least, hold hearings to explore the medical matters at issue in all the litigation. Congress might also weigh in on the merits by encouraging states to adopt an improved lethal injection protocol.
Of course, there are pros and cons to legislative action in this context. But the basic question and concern is whether, in a society committed to democratic decision-making, Congress should just sit on the sidelines while important matters of life and death unfold in court.
Some related posts:
- My lethal injection piece on SSRN
- Missouri still struggling with its execution protocol
- A bit of lethal injection history
- How could (and should) Congress clean up the lethal injection mess?
- Old school execution
- Lethal injection litigation creates de facto moratorium in Ohio and...
September 27, 2006 at 09:40 AM | Permalink
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I think the basic question and concern is whether, in a society committed to federalism, Congress should just sit on the sidelines while important matters of state procedure unfold in court.
Posted by: FederalFred | Sep 27, 2006 3:37:35 PM
One possible reason to litigate first and legislate second is the attitude of many judges that all important questions are constitutional questions, with legislation being little more than a staff recommendation to the judges who will make the final decision. It is more efficient to let the philosopher kings issue their decree first and then legislate to conform.
Posted by: Kent Scheidegger | Sep 27, 2006 4:48:55 PM
It has occurred to me that the average Congressman does not want to touch this question (even with 10 ft pole). Who in their right mind wants to be on the losing side of an issue, any issue, but one such as this that invokes the passions and involves life and death. Then again, they are debating the Habeas repeal this pm so anything is possible. This is the "do nothing" "rubber stamp" congress, in any event, and that stamp is only working for the guys on one side of the aisle, seemingly. I too, however, wish that the issue would become a bit more high profile. How can that be accomplished--I wonder? First, get out of Iraq.
Posted by: majormori | Sep 27, 2006 5:20:39 PM