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June 27, 2006

Should part of the machinery of death be dyslexic?

Kent Scheidegger in this post over at Crime and Consequences seems eager to read Kansas v. Marsh (commentary here and here) as a sign that the Supreme Court might finally be ready "to stop tinkering with capital sentencing procedure."  His interesting post draws its start from Justice Blackmun's famous farewell statement on the death penalty when he said he would "no longer tinker with the machinery of death." 

The tinkering talk is ironic at a time when, as detailed here and here, federal courts are literally tinkering with the machinery of death by reviewing, and sometimes demanding revisions to, states' lethal injection protocols.  Today I received from a helpful reader a copy of the decision from a federal district judge in Missouri which, in addition to documenting how that state has been conducting lethal injections, makes it very clear that some more tinkering is in order.

The Missouri lethal injection order is provided for download below, and here is just one part of the remarkable document:

[The physician that mixes the drugs used during the executions] readily admitted that he is dyslexic and that he has difficulty with numbers and oftentimes transposes numbers.  [He] testified "it's not unusual for me to make mistakes.... But I am dyslexic and that is the reason why there are inconsistencies in my testimony.  That's why there are inconsistencies in what I call drugs.  I can make these mistakes, but it's not medically crucial in the type of work I do as a surgeon." (Depo. p. 25). The Court disagrees and is gravely concerned that a physician who is solely responsible for correctly mixing the drugs which will be responsible for humanely ending the life of condemned inmates has a condition which causes him confusion with regard to numbers.  As the Court has learned, the process of mixing the three different drugs and knowing the correct amount of the drugs to dissolve in the correct amount of solution involves precise measurements and the ability to use, decipher, and not confuse numbers.  Although [the physician] does not feel this is crucial in the type of work he does as a surgeon, it is critical when one is mixing and dissolving chemicals for a lethal injection.

Download missouri_lethal_injection_opinion_in_taylor.pdf

June 27, 2006 at 04:30 PM | Permalink


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Note the distinction between capital sentencing procedure and other issues, which include execution methods and categorical exemptions such as Atkins and Roper.

Posted by: Kent Scheidegger | Jun 27, 2006 4:51:11 PM

Physicians take a hippocratic oath to do no harm... How can they be involved in any way in lethal injections?

Posted by: Lee Strausberg | Jun 27, 2006 5:41:34 PM

My God!!!

Posted by: Tom McGee | Jun 27, 2006 5:41:37 PM

When I entered law school, my first year torts professor was the preeminent products liablity scholar then-Professor (and now-Dean) Aaron Twerski. He remarked that torts would be the funnest class we took because we would read fact patterns in the case book that the most fertile imaginations could not conjure up. I think this opinion proves that Dean Twerski was wrong. I would find this opinion funny were it not for the fact that a human life hung in the balance.

Posted by: Steve | Jun 27, 2006 5:52:23 PM

It's not so much the life that hangs in the balance as the amount of suffering the convicted will go through before his life ends. Reminds me of the old question, "Why do they use an antiseptic swab before inserting the needle for the lethal injection?" The prisoner will die; the only question is how cruel that death will be.

As for Blackmun's phrase, I think the Marsh dissenters would have been better off quoting it and ending there. Instead, they got taken to the woodshed with the arguments they did make.

Posted by: PG | Jun 27, 2006 10:33:55 PM

Yes, the lower federal courts are tinkering. So what? We'll see who has the last laugh when the SCOTUS considers the issue itself. I can't imagine the Court striking down one of these protocols. Of course, the decision will be 5-4, because the four liberals (and some federal judges) abhor the death penalty and they'll put up whatever obstacles and do whatever it takes to encourage enough states to abolish it so they can have a Roper moment with the death penalty in its entirety. Thank goodness Justice Scalia exposed the Marsh dissenters for what they truly are - anti-death penalty activists in robes.

Posted by: WiseConOwl | Jun 27, 2006 11:58:21 PM

The reference to "some federal judges" was meant to imply that the liberal four will be aided by their lower court cohorts.

Posted by: WiseConOwl | Jun 28, 2006 12:00:39 AM

Let me preface my remarks by saying this: I agree that the death penalty is perfectly constitutional as a means of punishment because the Constitution expressly provides for capital punishment. That said, I believe as a policy matter that the death penalty should be abolished unless and until the risk of erroneous determinations is reduced to zero. For those who wish to promote a "culture of life," that seems the only sensible policy position. With that, I turn to the mess that is Kansas v. Marsh.

I find Justice Souter's dissent utterly misplaced, if not downright ridiculous. Kansas v. Marsh was neither the time nor place for an argument to the effect that "any legal rule that makes the death penalty harder to impose is justified because the death penalty should be abolished." That's an argument for legislatures, not Article III courts.

That said, I find something in Justice Thomas' and Scalia's opinions even more troubling. Both cases cite to and quote from the Illinois Supreme Court's decision in People v. Smith. Smith was convicted of murder, but his conviction was reversed due to evidentiary errors. Smith was convicted after a new trial, only to have the appellate court reverse his second conviction for evidentiary insufficiency. The court in Smith went out of its way to distinguish between the terms "not guilty" and "innocent," as if to suggest that a "not guilty" verdict or appellate reversal for legal insufficiency works a windfall to the defendant who may very well have performed the acts he was accused of. In other words, the Illinois Supreme Court grudgingly vindicated the reasonable doubt burden of proof while lamenting the fact that doing so essentially let a "factually guilty" person go free.

The reliance on that case and that language in the context of responding to Justice Souter's arguments in Marsh effectively says that "It's ok if we execute people 'wrongfully' because most of those people aren't factually innocent to begin with, but instead may have a constitutional error that produced their guilty verdict or death sentence."

If that in fact is what Justices Thomas and Scalia are trying to say, then I find this deeply, deeply disturbing, and emblematic of the way culture wars have infected the Supreme Court's constitutional adjudication. If a constitutional error infects a judgment and is not harmless, the remedy is or ought to be a new proceeding without that error. If that new proceeding results in "not guilty" determination (or a verdict of life imprisonment instead of death), then it seems obvious that an execution would have rendered moot the defendant's right to relief. For instance, had the defendant in Smith been executed before he could vindicate his constitutional rights, would Justices Scalia and Thomas defend that execution on the ground that, even if Smith was "not guilty" in the eyes of the law, he still actually "did it," and so no one can complain that we have executed an "innocent man"?

The moral of the story is that, while the Justice Scalia was quick to chastise Justice Souter for misleadingly using the term "innocent" to refer to defendants whose convictions have been or ought to be reversed due to constitutional error, he showed his true colors by suggesting that executing defendants whose judgments are infected by constitutional error is perfectly acceptable. If that accurately describes Justice Scalia's philosophy, then why shouldn't reasonable observers conclude that in each death penalty case where an inmate is litigating a constitutional claim on federal habeas, Justice Scalia's vote to deny relief is based not on a dispassionate view of the legal issues but on his belief that the person probably "did it"?

Posted by: Steve | Jun 28, 2006 9:17:26 AM

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