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April 3, 2009

State execution team resigns due to lethal injection litigation

At least in Washington state, it appears that when the litigation going gets tough, the not-so-tough resign.  That's what I take away from this local story, headlined "State's execution team resigns, fearing identities would be revealed."  Here are the basics:

Four people who have volunteered to administer lethal injections to death-row inmates at the Washington State Penitentiary in Walla Walla quit their positions this week, apparently worried that their identities could become public as a result of an ongoing court case to decide whether lethal injection constitutes cruel and unusual punishment.

 The four resigned Tuesday, which was the deadline Thurston County Superior Court Judge Chris Wickham had set for the team's records -- detailing the members' credentials, qualifications and experience in administering lethal drugs -- to be submitted for his review.  The state is now without a lethal-injection team, and it's unclear what effect the resignations will have on the court proceedings.

Death-row inmate Darold Stenson, who was sentenced to die in 1994 for killing his wife and business partner, filed his lawsuit last year, claiming that lethal injection can result in excruciating pain if not administered correctly....

The resignations are "a surprising and disturbing development," said Scott Englehard, the attorney representing Gentry. "This issue has nothing to do with guarding their identities." Englehard said the plaintiff's attorneys already agreed that no identifying information related to the team members would be disclosed.  The records were to be reviewed in camera, a time-honored legal tradition in which only a judge sees sensitive and confidential documents and then decides what information attorneys will be privy to, he said.  His client and the other plaintiffs have a right to inquire about the team's "experience or qualifications to properly carry out a lethal-injection execution," Englehard said.

This development reminds me of the practical impact that sometimes occurs from another kind of right-to-life protesting: the tendency of medical professions to stop being involved with abortions because of fear generated by protesters.  The passion of death penalty opponents often is similar to the passion of abortion opponents, and I sense that any persons involved with either the death penalty or abortions have a reasonable basis to fear that this passion may sometimes get expressed in disturbing ways.  For this reason, I have a hard time faulting the decision by these volunteers to resign, even though I still believe the slogan that quitters never prosper.

April 3, 2009 at 10:22 AM | Permalink

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Comments

Apparently, the team members don't trust attorneys to keep identifying info a secret. And no, the prisoners don't have a right to that info. Neither do federal courts.

Posted by: federalist | Apr 3, 2009 10:32:07 AM

While equating opposition to abortion and the death penalty makes sense on some level since opposition to both practices often is religious based, your statement doesn't really make sense. Most persons who oppose the death penalty either believe that any killing is wrong and thus tend to be non-violent or that the system is so flawed that the state should not kill people - while they might conduct non-violent protest or write law review articles or letters, violent actions are highly unlikely.

By contrast, anti-abortion protesters are not necessarily opposed to killing - and are generally acting in the belief that they are protecting innocent lives. Thus, someone who opposes abortion is much more likely to conduct acts of violence.

Posted by: Zack | Apr 3, 2009 10:47:55 AM

"And no, the prisoners don't have a right to that info. Neither do federal courts."

Good analysis - glad that's settled! If they're acting on behalf of the state, essentially volunteer public employees, then yes, we do have a right to that information.

Posted by: John | Apr 3, 2009 10:53:17 AM

Executioners have always been anonymous . . . . Our traditions. No need for analysis.

Posted by: federalist | Apr 3, 2009 11:01:36 AM

I guess I missed the doctrine of "traditions" in law school. Do you really need a list of "traditions" that have been revealed under the glare of justice to be the last refuge of injustice?

Posted by: Mark | Apr 3, 2009 11:11:37 AM

"No need for analysis."

Great argument! I'm absolutely persuaded. [sarcasm]. I will say I don't really know what the correct (or even preferred) answer is here. But, what I do know for sure is that comments such as this do nothing to help persuade me of one's side.

Posted by: not persuaded | Apr 3, 2009 11:22:48 AM

Mark, traditions are important in america.

Posted by: federalist | Apr 3, 2009 11:35:26 AM

So are buttermilk pancakes, good parking spots, and of course, the children. Your point is?. . .

Posted by: Mark | Apr 3, 2009 1:04:54 PM

Traditionally, states have kept the identities of executioners secret. They continue to be able to do so.

Posted by: federalist | Apr 3, 2009 1:15:12 PM

The judge should be sued for any damage done to these executioners, and for his intentional interference with their contracts. He has scienter of the high probability of retaliation by organized crime gangs. Discovery demands were pretextual, since it makes no difference who the executioners are. The judge should resign, or be removed from the case by the administrative judge. This case is so outrageous, it justifies ending the self-dealt immunities of this criminal lover, biased, criminal cult hierarchy member, that judge. His personal information should be made public, and e-discovery should be carried out on his personal computers by forensic experts. We want to know what criminal paid him off, and if he harbors pro-criminal biases. Then he should be shunned by all product and service providers, including doctors.

Posted by: Supremacy Claus | Apr 3, 2009 1:48:34 PM

Mark writes, "I guess I missed the doctrine of 'traditions' in law school."

I doubt you missed it, Mark. It probably wasn't covered, a sad commentary on the state of legal education.

"'[T]raditional ways of conducting government . . . give meaning' to the Constitution." Mistretta v. United States, 488 U.S. 361, 401 (1989), quoting Youngstown Sheet & Tube v. Sawyer.

Some traditions, as you note, have been found to be unjust and overthrown, but generally speaking the constitutional requirements are consistent with tradition.

Posted by: Kent Scheidegger | Apr 3, 2009 2:06:40 PM

It's often such a disappointment to click on "Comments" on this blog. So often I have found myself reading an interesting post and seeing that there are comments and think, "Oh great! Perhaps there is an interesting discussion going on about the many nuanced implications of this item of news!" But no. At least 90% of the time, the comments are dominated by federalist, spouting off from his soapbox and mocking anyone who disagrees. It is such a disappointment, because this blog could be an ideal place for thought-provoking discussions about sentencing law from people with a variety of views and professions. Alas.

Posted by: K. | Apr 3, 2009 2:30:07 PM

"Traditionally, states have kept the identities of executioners secret."

Really? Hangings were often performed in public by un-masked men. Strikes me this is a fairly recent tradition in America.

Posted by: dm | Apr 3, 2009 2:50:12 PM

"Neither do federal courts."

I agree with federalist. The government should do whatever they wish without anyone regulating them or any type of oversight.

Posted by: MarkM | Apr 3, 2009 3:13:38 PM

dm, of course, the issue is the right to keep them secret, not that it always happened.

"It's often such a disappointment to click on "Comments" on this blog. So often I have found myself reading an interesting post and seeing that there are comments and think, "Oh great! Perhaps there is an interesting discussion going on about the many nuanced implications of this item of news!" But no. At least 90% of the time, the comments are dominated by federalist, spouting off from his soapbox and mocking anyone who disagrees. It is such a disappointment, because this blog could be an ideal place for thought-provoking discussions about sentencing law from people with a variety of views and professions. Alas."

I find this highly unfair. For the most part, my "mocking" responses happen when someone takes a shot at me. I am of course happy to disagree respectfully if I am afforded that courtesy. I am also happy to rhetorically punch back as well.

Posted by: federalist | Apr 3, 2009 3:41:03 PM

I guess I no longer understand the issue.

States have sometimes exposed the identity of executioners to be public (as in the case of public executions -- the "traditional" venue of execution in this country) and states have sometimes kept that information secret. States, of course, have the "right" to decide whether that info should be public or private.

But the question is whether in the context of litigation, that information is discoverable. After all, there is lots of information that parties to litigation would like to keep secret which is nevertheless subject to discovery.

If a court determines the information is relevant to the litigation and otherwise discoverable, well then I don't see what independent "right" a state has to exempt that info from discovery. The state could argue that this sort of info has "traditionally" been secret in a way that makes it exempt from discovery, but the fact that executioners' identity was commonly publicly revealed at executions would seem to undercut that argument.

Posted by: dm | Apr 3, 2009 4:48:11 PM

K: K: Make a thoughtful comment. I look forward to it.

The appellate decisions discussed here are all lawless, anti-victim, pro-criminal, pro-lawyer, pro-rent seeking, dangerous, self-dealing, and in bad faith, but with masking ideology for the appearance of virtue. They have no validity, being in insurrection against the Constitution, being poor policy, destroying the primary goal of having a government, security. They are racist, herding crime into the neighborhoods of black folks. They are ghoulish human experiments by incompetents who do not know what they are doing, yet feel superior to legislatures and to ordinary people.

You request civility in the face of crimes against humanity.

Posted by: Supremacy Claus | Apr 3, 2009 5:06:19 PM

Ah, the agony of defeat. Yes, in writhing agony I must admit defeat. I'm am no longer the Bull Moose Loony with the dumbest arguments. Perhaps third place is better than nothing.

Speaking of writhing in agony, does anyone doubt federalist and S.Clause should not be allowed to administer lethal injections? A Google doctor could administer a cocktail that paralyzes then tortures with writhing agony for as long as possible. That is, if a paralyzed person can writhe in agony.

The defense should have the right to know who is administering it.

Posted by: George | Apr 3, 2009 6:51:25 PM

Of course dm is correct in his point about discoverability. I momentarily allowed myself to get distracted by federalist's low-hanging fruit attempted argument.

Posted by: Mark | Apr 3, 2009 11:26:45 PM

Of course, the lawyers learned about tradition in law school. For example, there is no Constitution Clause or statute permitting judicial review. It is a tradition, albeit a tradition of treason and insurrection against the Constitution's Article I Section 1. There is another tradition, if the Executive branch informs a judge, a ruling on discovery would be detrimental to policy, the judge withdraws it.

I don't know if I would have the courage to dispatch a condemned murderer. I know I could dispatch members of the criminal cult enterprise hierarchy with enthusiasm, even if with bare hands. I would be honored to save our besieged nation from these cult leaders.

Posted by: Supremacy Claus | Apr 4, 2009 12:39:05 AM

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