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September 19, 2007

Federal district judge halts executions in Tennessee

As detailed in posts at Crime & Consequences and StandDown Texas Project and this AP story, a "federal judge ruled Wednesday that Tennessee's new lethal injection procedures are cruel and unusual punishment, interrupting plans to execute a killer next week."   The lengthy ruling in Harbison v. Little is available here.  Here is the conclusion:

For the reasons stated herein, the court finds that the plaintiff’s pending execution under Tennessee’s new lethal injection protocol violates the Eighth Amendment to the United States Constitution.  The new protocol presents a substantial risk of unnecessary pain; that risk was know to Commissioner Little, and yet disregarded.  Accordingly, the court will enter judgment in favor of the plaintiff and enter injunctive relief against the defendants, barring them from executing the plaintiff under the new protocol.

Given the Sixth Circuit's history of split rulings on various death penalty issues, it will be interesting to see what happens to this case on (an inevitable?) appeal.

September 19, 2007 at 08:06 PM | Permalink


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This, yet again, goes to show why federal courts need to be out of the business of reviewing state convictions. They have shown themselves completely irresponsible.

Posted by: federalist | Sep 20, 2007 12:08:51 PM

The Federal Court was not reviewing a state court conviction.

The opinion states that this was a 1983 action, and as everyone is quick to point out, 1983 actions can't be used to attack the validity of the underlying conviction.

Posted by: S.cotus | Sep 20, 2007 1:26:39 PM

Meaning, S.cotus, that they shouldn't be in the habeas business, nor in the staying executions business. I am quite familiar with the differences between sec. 1983 claims and habeas claims. The view here is that both 1983 and habeas cases are being used by federal judges far to often to thwart or delay justice (see, e.g., Kevin Cooper). The federal courts, as a whole, have been irresponsible, and they should simply be taken out of this business.

Posted by: federalist | Sep 20, 2007 1:31:14 PM

It is too bad that you feel that way. Perhaps you can seek a change in the staute, or the constitution.

Whatever the case, since I agree that society would be better off, if we had a higher chance of being killed by a state in painful ways, maybe you have a point. A society that lives in fear is the happiest society in the world!

Posted by: S.cotus | Sep 20, 2007 2:10:22 PM

Are federal courts "thwarting or delaying justice" or are they simply operationalizing the Supremacy Clause so that States act in accordance with the requirements of the federal constitution?

Posted by: ky | Sep 20, 2007 2:12:46 PM

When federal courts rule against the position of me, my clients, my friends, my relatives, or people I hope to meet, they are "thwarting justice."

Posted by: S.cotus | Sep 20, 2007 2:54:41 PM

Well, if done right, it is clear to anyone that the 3 drug protocol is painless. That there may be some risk that the anaesthetic doesn't get to where it needs to be (despite the fact that the KCl always seems to get to where it needs to be) doesn't seem to rise to the definition of Cruel and Unusual. Moreover, it's not like Tennessee's lethal injection procedure was a huge mystery. This litigation should have been brought earlier.

And let's not forget that the federal courts' statutory authority to review these cases stand on thin ice, given the general prohibition on federal court interference with state criminal proceedings.

Judge Trauger makes a big deal that lethal injection could be done better--so what? There's no constitutional requirement that every precaution be taken to minimize pain.

Posted by: federalist | Sep 20, 2007 3:03:29 PM

Well, maybe it is cruel, maybe it is not. But if the guy dies before it can be investigated we won't be able to tell.

1983 is a pretty old statute. Maybe it should be repealed. Maybe not. Maybe it is time to simply prevent federal courts from hearing any cases that arise under the constitution (and, of course, eliminate all federal crimes). But this is for Congress to decide.

Posted by: S.cotus | Sep 20, 2007 3:39:03 PM

Federalist, do you really want us to go back to the good old days? Remember the case of Leo Frank, the Jewish business man wrongly convicted for murder of Mary Fagan by a Georgia court dominated by an anti-semitic mob? Frank's plea to the federal courts was futile at a time when the jurisprudence you espouse prevailed. See Frank v. Mangum 237 U.S. 309, 35 S.Ct. 582 (U.S.1915)(Habeas corpus will NOT issue out of a federal court in behalf of one convicted of crime who asserts existence at trial of mob domination, and denial of due process). I hope not.

Posted by: Michael Levine | Sep 20, 2007 7:34:27 PM

"Habeas corpus will NOT issue out of a federal court in behalf of one convicted of crime who asserts existence at trial of mob domination, and denial of due process."

Please give us the point page for that holding.

Posted by: Kent Scheidegger | Sep 20, 2007 8:16:59 PM

Kent, my aplogies. I just looked at the blurb. The S.C. recognizes that a writ of H.C. could issue, but holds (I think) that because the state supreme court decided the facts against him, the federal court will not reexamine them. But I'll leave it to a smarter man than me, Justice Holmes, to say what he thinks the case means:

"The argument for the appellee in substance is that the trial was in a court of competent jurisdiction, that it retains jurisdiction although, in fact, it may be dominated by a mob, and that the rulings of the state court as to the fact of such domination cannot be reviewed. But the argument seems to us inconclusive. Whatever disagreement there may be as to the scope of the phrase ‘due process of law,’ there can be no doubt that it embraces the fundamental conception of a fair trial, with opportunity to be heard. Mob law does not become due process of law by securing the assent of a terrorized jury. We are not speaking of mere disorder, or mere irregularities in procedure, but of a case where the processes of justice are actually subverted. In such a case, the Federal court has jurisdiction to issue the writ. The fact that the state court still has its general jurisdiction and is otherwise a competent court does not make it impossible to find that a jury has been subjected to intimidation in a particular case."

Frank v. Mangum 237 U.S. 309, 347, 35 S.Ct. 582, 595 (Holmes, J., dissenting). In any event, the Supremes did not help out Mr. Frank who was ultimately lynched by a mob (many of whom no doubt were in the courtoom during the trial).

Posted by: Michael R. Levine | Sep 20, 2007 11:12:46 PM

The lynching of Mr. Frank was indeed a tragedy, but I very much doubt that a writ from a federal judge would have helped him any more than the clemency he received from the state's elected governor.

The majority saw itself as deferring to a state court finding of fact that the trial was not dominated by a mob as Frank alleged. See 237 U.S., at 333. Deference to state-court findings of fact remained the law even at the height of the Warren-Brennan expansive view of habeas.

The availability of federal habeas for state prisoners has expanded and contracted many times through history, driven mainly by the degree of confidence that Congress and the Supreme Court have in the state courts. In the most recent rounds, a lack of Congressional confidence in the federal courts, especially the Ninth Circuit, has also been a major factor.

Posted by: Kent Scheidegger | Sep 21, 2007 12:17:02 PM

Funny, S.cotus, it looks like Congress already did decide that injunctions shouldn't issue--there's that pesky thing called the Anti-Injunction Act. Unfortunately, in a fit of judicial activism, the Supreme Court ignored the plain language of that Act.

Posted by: federalist | Sep 21, 2007 12:25:36 PM

Well, “plain language” is one of those terms that usually means “what I think it means.” But, referring to 28 USC 2283, reads, in full, “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” There is no indication that the federal court issued an injunction to stay proceedings in a state court. Therefore your reading is in tension with the plain language and text of the statute and you are urging a judicially activist result with no basis in the text of the statute.

Kent, I think it is cute to bash the 9th Circuit, too.

Posted by: S.cotus | Sep 21, 2007 1:37:53 PM

S.cotus, since executions are carried out pursuant to a court judgment, I think you're flat-out wrong there. Are we to believe that court "proceedings" don't include court "judgments"?

Posted by: federalist | Sep 21, 2007 4:45:27 PM

Correct. After the judgment is issued, the action of killing someone is an executive matter. Now, if the federal court enjoined a state court from hearing certain arguments, it would be different.

Whatever the case, the injunction is not directed at a court, but rather the governor and officials involved in the killing.

Posted by: S.cotus | Sep 21, 2007 6:20:36 PM

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