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July 27, 2006

The lethal injection litigation rages on and on and...

This morning, Reuters has this story asserting that lethal injection litigation is "contributing to a broad reexamination of the death penalty across the country."  In my view, all the legal wrangling over lethal injection protocols is not changing any opinions on the death penalty, even though it is dramatically impacting execution practices.  (As detailed here, Missouri now has a de facto moratorium on executions because a federal district judge refuses to approve its revised lethal injection protocol.)

These discussions, along with the just noted NPR series on solitary confinement, gets me revved up again about the harmful and distracting obsession everyone has with the death penalty.  There is now nationwide constitutional litigation disrupting the imposition of lawful capital punishments because there is a chance that a few murders might suffer pain right before being executed.  Meanwhile, more than 25,000 prisoners are subject to the extreme mental and physical suffering that is known to accompany confinement in Supermax or control-unit prisons.  And yet, there is little or no litigation or even attention paid to this issue. 

Why don't persons who claim to be so concerned about human dignity focus more on the tens of thousands of humans suffering every day from extreme prison confinement rather than on the few humans who might suffer pain on the way to being executed?

July 27, 2006 at 10:00 AM | Permalink


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Doug Berman at Sentencing Law and Policy has a post on lethal injection challenges and renews his notion that the attention given to capital litigation distracts from the issues affecting tens or hundreds of thousands of people in the criminal [Read More]

Tracked on Jul 27, 2006 4:51:07 PM


I would say it's not a zero-sum game. Many of
us in the defense world would like to see
both of these problems addressed, as well as
the many, many others that evidence the sub-
human treatment of those convicted of crimes.
Both the lethal injection litigation and
litigation regarding prison conditions, etc.,
stem from the same fundamental concern, which
is the basic human dignity to which you

True, courts have finite time and resources,
so perhaps in an attenuated sense, you are
correct that capital litigation prevents non-
capital cases from being heard. But isn't it
the duty of the judiciary to ensure that it
functions well and efficiently enough to
address all of the worthy claims that require
redress? I can't see how it is an advocate's
duty to refrain from bringing meritorious
suits, out of concern for the preclusive
effect it may have on other cases. So, I
think your frustration is better aimed at the
courts, rather than the "persons who claim to
be so concerned about human dignity."

Posted by: Kristin | Jul 27, 2006 12:01:06 PM

"Why don't persons who claim to be so concerned about human dignity focus more on the tens of thousands of humans suffering every day from extreme prison confinement rather than on the few humans who might suffer pain on the way to being executed?"

Why don't you keep up on the law before you start trashing the lawyers who care most about these people? See Beard v. Banks, 547 U.S. ___ (June 28, 2006). Stevens and Ginsberg are the only ones who think dungeons are unconstitutional. Id. (Stevens, dissenting) ("Similarly, the ban on personal photographs, for at least some inmates, interferes with the capacity to remember loved ones, which is undoubtedly a core part of a person’s 'sphere of intellect and spirit.'"). Death penalty lawyers are most certainly concerned about their ad-segged clients, which is why we do bring these claims when possible. Furthermore, death penalty lawyers are concerned about the entire county's dignity, not just prisoners.

Someone who's really concerned about the issue would have read Beard v. Banks in the last month. It seems your animus flows more from your disregard and dislike of condemned persons than your concern for the incarcerated.

Posted by: anon | Jul 27, 2006 2:55:58 PM

(same poster here) I must correct my last post; I'm not a "death penalty lawyer" and so can't speak for them. But I do empathize with lawyers who are unreasonably attacked for doing their jobs. And of course lawyers should try and change the law where possible, so my cite to Beard v. Banks was for the purpose of showing that these claims are being brought and appealled, but that the courts are very hostile to them. Woodford v. Ngo (US 2006) is another good example.

In any case, thanks for the blog - your writeups of sentencing issues are always informative, and appreciated.

Posted by: anon | Jul 27, 2006 4:28:30 PM

Anon, I have read Beard v. Banks, but my reading did not lead to the extreme conclusion that 7 of the current Justices "think dungeons are constitutional."

Moreover, part of my concern is that public-spirited lawyers might not be "keeping up on the law" effectively. Have you read the unanimous Wilkinson v. Austin from 2005? I read that opinion as suggesting all the Justices see serious constitutional issues raised by Supermax confinement. But I have not seen any serious efforts to leverage Austin into a broader constitutional (or sub-constitutional) attack on Supermax confinement.

My screed comes not from a hatred for the condemned, but rather a concern about mis-placed (and harmful) priorities for those looking to reform the criminal justice system. Focusing the public on whether a few murderers might suffer a few moments of pain before being executed seems unlikely to generate much sympathy for the work of defense attorneys. But focusing the public on the tens of thousands of Americans serving life terms in "dungeons" might just get them to think a little differently about the work of progressive reformers.

Posted by: Doug B. | Jul 27, 2006 4:43:20 PM

I appreciate the initial post and the comments. Always informative.


I'm curious about your overall view of priorities in our criminal justice system. I don't know if you've written anything that represents your "global" thoughts, but I'm curious about your interconnected views on the subject (in particular, without limitation: State vs. federal sentencing policies; conditions of confinement; violent vs. non-violent crimes; degrees of seriousness; drug crimes; gender; race; death penalty; resources committed to prosecution/defense; innocence; habeas; rehabilitation; retribution; politics . . . )

If you've already put something together, just point me the way. Frankly, I'm more interested in your thoughts than that of the entire U.S. Sentencing Commission.


Posted by: Mark | Jul 27, 2006 7:13:00 PM


Having just taken the bar exam, your post seems like an essay question that I would have had to answer with great discomfort and craziness! Wow! Too many questions and too many requests to explain with such a broad possible explanation!


Posted by: | Jul 28, 2006 3:34:26 AM


I have not (yet) authored a global account of my grand vision of criminal justice policy, though my basic philosphical commitment is grounded in consequentialism and Aristotle's notion of human flourishing (perhaps with a little Rawls thrown in), and my basic legal commitment is grounded in legal process ideas. Most of my reactions to issues flow from these basic commitments.

Posted by: Doug B. | Jul 28, 2006 6:21:12 AM

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