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March 21, 2007

Great HLR note on lethal injection litigation

In this post a few months ago, I expressed my hope that other scholarly voices will start expounding balanced wisdom on all the lethal injection developments.  I am now pleased to have discovered that a student at my alma mater has stepped up to the plate.  Specifically, in the latest issues of the Harvard Law Review there is now this Note entitled "A New Test For Evaluating Eighth Amendment Challenges To Lethal Injections."  The Note is too full of good insights to summarize, and so I'll just reprint the piece's conclusion:

The recent explosion of lethal injection litigation has left courts in a difficult situation.  Eighth Amendment challenges to methods of execution are exceedingly difficult to adjudicate as a result of the vagueness of the existing tests and profound disagreement on how they should be applied.  Lethal injection challenges are particularly problematic, requiring complex factual determinations and detailed remedies with almost no doctrinal guidance.

Courts should adopt a rule that accounts for both the objective measure of pain or risk associated with the procedure and the state's interest in choosing the procedure.  Such a rule would be judicially manageable and consistent with Eighth Amendment precedent.  But the onus should be on state executives and legislatures to craft improved protocols.  Prompt action by the states would preclude potentially inappropriate judicially crafted remedies and ensure the successful administration of capital punishment.

Needless to say, this Note in especially timely in light of all the lethal injection mess in Ohio and elsewhere (basics here and here and here).  Of course, I also like the piece because it is in harmony with my article last year on lethal injection developments for the Cato Supreme Court Review, entitled "Finding Bickel Gold in a Hill of Beans," in which I urged Congress and state legislators to do more to clean up the lethal injection mess.

March 21, 2007 at 03:46 PM | Permalink


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Haven't read the article, but this sounds like the standard Judge Fogel's been using in the N.D.Ca.

Posted by: rothmatisseko | Mar 21, 2007 6:21:28 PM

Why should the onus be on the state. All of the science indicates that, if done properly, lethal injection works, in that the condemned suffers not. So the real risk is a botched execution, and the state has never been required to eliminate that risk. Now I will agree that at some point, the failure to train personnel could satisfy some sort of deliberate indifferent standard, but the states simply cannot be left at the mercy of a bunch of federal judges who make determinations about how much wattage in a light bulb satisfies the Constitution. Fact determinations are very very difficult to overturn, and the states would then be subject to the most stringent ruling available (res judicata, you know). This is a recipe for tying the states into knots. And a recipe for gotchas like North Carolina finds itself in.

The people have a right to inflict the death penalty on murderers. That's a categorical imperative, and that right is not to be subjected to the whims, nay caprice, of whatever strikes some arrogant federal judge's fancy. Light bulb wattage, doctor must be present, yada yada yada gimme a break.

Posted by: federalist | Mar 21, 2007 9:54:11 PM

I don't understand you. In Missouri, for instance, the room was so dark that the people presiding over the execution were physically unable to see the inmate, despite their assertions that they would look the inmate in the eye to see if he was anesthetized. There is no per se constitutional right to a particular wattage, I agree. But to the extent that (a) there is substantial evidence that executions are frequently botched, (b) the darkness of the room appears to contribute to this, (c) the state can give no clear reason why it chooses a dim lightbulb other than apathy and incompetence, and (d) ordering a bright rather than dim lightbulb is a very easy-to-implement and unobtrusive remedy, why do you object so strongly? I am sorry you consider federal judges arrogant merely by virtue of their desire to not utterly defer to the state no matter how incompetent the state is in carrying out executions.

Posted by: Anon Poster | Mar 21, 2007 10:38:01 PM

First of all, the lightbulb test was in Fogel's "here's how I want you to do it, and my way is the only constitutional way to do it" opinion, and the issue there was a 60 watt bulb vs. a 100 watt bulb.

Second of all, I did state that there could, on egregious facts, be some remedy.

Third of all, have you read the opinions of Frost or Fogel. The arrogance jumps off the page. At the end of the day, these murderers, after having years of appeals chose to wait until the last minute to hoist these claims, and federal courts, exercising the equitable powers entrusted to them decided to exercise it in favor of murderers when not only did the equities not favor them, but favored the state. Equity favors the vigilant, not those who sleep on their rights. This maxim should have triple the force when we are talking about convicted murderers. But it did not. The conclusion I draw is that the judges are either on some power trip or they favor the interests of criminals over the interests of society. Did they even bother to use their equitable powers to take evidence about how the victims' family would feel? I would have. And that would not have been improper.

Third, you did not even address my point about the knots in which NC has found itself because some arrogant federal judge decided to say that the constitution requires that a doctor be present.

Fourth, while I am on a rant here, the arrogance reaches to the Supreme Court. During the Hill oral argument, certain Supreme Court Justices had the audacity to question the Florida Dep. AG about the flawed Lancet study. They asked whether the Florida legislature had kept up with it (as if a state legislature with pressing business affecting the lives of millions of law-abiding citizens is required to pay attention to some flawed study). Apparently, word of the study's flaws hadn't reached the particular justices . . . . Moreover, Justice Stevens showed pathetic ignorance when he made the comment that the lethal injection procedure was not fit for an animal (most of the serious anti-LI people have dropped this misleading argument). And these are the people who should have the right to interfere with our democratic choice to impose capital punishment. Not. So--no, until such time as the federal judiciary as a whole shows a little more solicitousness to the democratic process, a little more understanding of the knots that a state can find itself in and a little more concern for states not being jerked around by a bunch of murderers, then I might be tempted to think that the federal judiciary can effectively monitor this. Or maybe I'll just wait until the federal judiciary, as a whole, can be trusted with death cases under AEDPA.

Posted by: federalist | Mar 21, 2007 11:26:49 PM

First, Judge Fogel was not saying there is a constitutional right to a particular wattage, bar none. He was saying that California's record of regularly botching executions created a constitutional violation, and that the lightbulb would be part of his proposed remedy (pending an alternate procedure proposed by the State). Courts routinely formulate detailed injunctions in order to rectify constitutional violations; that doesn't mean each specific element of the injunction is enshrined as a constitutional right. Your description of Judge Fogel as having found a constitutional right to a particular wattage is thus misleading. As well, I find it ironic that you criticize Judge Fogel for saying "here's how I want you to do it, and my way is the only constitutional way to do it," when in fact his order was remarkable for the fact that he was saying the exact opposite. Generally, federal judges do indeed "say what the law is"; see Marbury v. Madison. Judge Fogel, however, stated that he would not impose his remedy on California; his memorandum was not a binding judgment. He stayed that he would impose a remedy unless California submitted an alternate procedure. This is a uniquely solicitous procedure.

Second, you seem to object to the last-minute nature of the claims, portraying the inmates as twiddling their thumbs and lazily waiting around with their constitutional claims in the last seconds to put sand in the judicial process. Actually, the reason they brought the claims so late was that there was previously little evidence of botched executions. Now, after the Lancet study and high-profile botched executions, they learned they had viable claims, so they brought them. They were also relying on a 2006 Supreme Court opinion (Hill v. McDonough), though I suppose they could have tried to force such an opinion from the Supreme Court earlier.

Also, in terms of the equities, I don't find the states particularly sympathetic parties. Injecting someone with a chemical is an extremely easy and routine procedure. Paramedics do it all the time and basically never botch it. It would be trivial for the state to nearly eliminate the risk of pain: either use someone with even a minimal level of training, or use a barbiturate alone instead of this ridiculous three-drug cocktail. If the state is obstinately going to stick to an irrational and worthlessly risky procedure, then it deserves what it gets.

I agree that requiring a doctor may be an inappropriate remedy. So does the Note. Here is a quote from p. 1316: "if an inmate can show that the absence of a physician renders an execution protocol dangerous, but the state can show that finding a doctor to preside over an execution would be extremely difficult, then the method should be constitutional. The test merely filters out protocols that are dangerous for no clear reason."

Finally, I think your hostility to the Supreme Court is unwarranted. Let's not forget that Hill was a unanimous opinion; are Justices Scalia and Thomas also arrogant, activist, pro-criminal Justices? I do not think that asking counsel a question during oral argument is a particularly audacious act, in general. I also think that if a study comes out that lethal injections are regularly botched, which gets substantial media attention, then a conscientious state legislator serving in a body whose duty is to prescribe constitutional methods of execution might have read about it. The study was pretty good, and anyway, it's clear that executions are botched a lot: look at the ridiculous case of Angel Diaz, which caused Governor Jeb Bush to suspend all executions in Florida, without any court order from an arrogant, activist judge. Oh, and by the way, it is factually true that most states ban the use of pancuronium bromide when animals are euthanized, and it is also factually true that this drug creates serious risks when applied to humans. It is also useless and unnecessary for the procedure.

Posted by: Anon Poster | Mar 21, 2007 11:56:47 PM

Given the Lancet study's flaws, namely, that the blood tests were done too long post-mortem, my view is that the Florida Legislature, who have better things to do should be able to safely ignore it--and without having its AG harassed at oral argument.

As for waiting too long, I think you ought to reconsider your argument. The claim arises when the claim arises, not when the Red Sea parts and some court decides to say that there's a cause of action. Or do you think murderers get a special exemption from the rules?

As for the pancuronium bromide, it prevents unsightly jerking around etc. And the procedures for euthanizing animals are different from the procedures for executing killers . . . . hence Stevens' interjection at oral argument was either ignorant or sophistry, neither of which is kosher in a judge.

And yes, Bush stopped lethal injections--so what? Just shows that the executive can be trusted to run executions. They'll fix the problem, and as far as I am concerned, Angel Diaz' suffering, while unfortunate, is no cause for courts to initiate wholesale supervision of state execution procedures.

As for Fogel, he wants to run the show. And there was no constitutional violation, and Fogel shifted the burden of proof to the state. One would think that the burden would be on criminals.

And let's not forget how we got into this mess in Cali in the first place--lethal gas, a procedure used for years suddenly became suspect because lethal injection was supposedly better. Yeah, the federal courts have done a good job here . . . .

Maybe the federal courts can screw up the war on terror too.

Posted by: federalist | Mar 22, 2007 12:14:51 AM

Actually, there is such a ruling in MM v. Doe, [199 U.S. 158], (The claim arises when when the Red Sea parts and some court decides to say that there's a cause of action.)

Posted by: George | Mar 22, 2007 1:53:52 AM

The problem is that Federalist doesn’t understand what Hill actually was about. Maybe it is one of those hypertechnicalities that we lawyers care about, but there is a big difference between a 1983 action and a habeas proceeding.

Posted by: S.cotus | Mar 22, 2007 12:35:19 PM

I wasn't positive of the difference either but knew there is an ongoing covert and/or flagrant attack on the 14th Amendment, "federalism" it's called. For other non-lawyers, try Title 42 USC Section 1983 Information for some basics (picked out of the Google hat).

Posted by: George | Mar 22, 2007 2:42:10 PM

That's right George, withholding discretionary relief from dilatory murderers is an attack on the 14th Amendment . . . . . .

Posted by: | Mar 22, 2007 3:40:37 PM

Nothing in the article pertains to the death penalty other than "thou shall not kill." Like the states botching executions the states botched fair enforcement of their own Bill of Rights, and the 14th was necessary. Now more and more we have a huge government and voting with our feet is futile.

Thank you, states, for the fubar, but how many times since then has the federal Bill of Rights saved a state from itself? All to often if not for that check we would likely not know what freedom is in some states, if not all states to one degree or another. While "small government" is a conservative misnomer, a big government so far is better than no 14th Amendment. In short, thank God for federal judges.

So far, but the war on drugs and the war on this and that is eroding even that check on liberty encroachment. As long as even the most heinous can still appeal, the 14th still has a pulse.

Posted by: George | Mar 23, 2007 12:41:17 AM

check on liberty encroachment. As long as even the most heinous can still appeal, the 14th still has a pulse.

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