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January 7, 2008

A great animal irony in the Baze oral argument

Through a C-Span link, I am listening to a rebroadcast of this morning's Baze oral argument.  During questioining of Kentucky's lawyer defending its lethal injection protocol, Justice Stevens made much of the fact that Kentucky state law prohibits vets from using a similar protocol for putting down animals.  During the dialogue, an amazing irony hit me:

It seems that, purportedly to achieve a more humane lethal injection protocol, it seems that some are arguing that the Eighth Amendment requires that condemned defendants should be treated more like condemned animals.  (Readers are now encouraged to think of a funny Michael Vick firing squad joke to add here.)

January 7, 2008 at 12:05 PM | Permalink


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Its nice to see that we are finally getting some legal discussion of the difference between man and non-man. But, for me, there is no difference between mammals.

Or maybe Stevens meant to say, “You and me baby ain't nothin' but mammals So let's do it like they do on the Discovery Channel.”

Posted by: S.cotus | Jan 7, 2008 12:16:20 PM

Perhaps the joking says something more about the detached, peer-to-peer nature of this blog and comment venue than it does the content of today's oral arguments

Posted by: | Jan 7, 2008 12:52:58 PM

I don't necessarily find it ironic, but a sad reflection of the retributive nature of the death penalty and criminal law in the United States in general. As soon as you are convicted of a crime, you are no longer human, but a 'criminal'. The fact that we treat our pets better than criminals shouldn't surprise us at all. Disgust us, absolutely, but not surprise us. One would suspect that it is much easier to sleep after killing someone we've labeled 'less-than-human' as opposed to an actual human being.

I would be curious to see if the Court's discussion down the road turns towards engaging into deeper questions about human dignity despite the professed position that they do not possessing the role of 'philosopher-kings'. At some point, I would think they will have to throw off that fiction in order to adequately address the issue.

Posted by: Christopher Thompson | Jan 7, 2008 1:06:14 PM

I do not believe that Stevens' question intimates "that condemned defendants should be treated more like condemned animals." Rather, the question suggests that condemned defendants should be treated at least as well as condemned animals.

Posted by: DEJ | Jan 7, 2008 1:40:36 PM

Of course, this raises the question of whether animals can be condemned w/o due process.

Posted by: S.cotus | Jan 7, 2008 1:47:29 PM

In all due respect, Doug, let's not respond to the stark reality of Stevens' comments with Michael Vick jokes. It's precisely that impulse -- to sidestep inhumanity -- that allows us to pass laws which treat humans with less consideration than animals.

Posted by: | Jan 7, 2008 1:53:17 PM

I think DEJ has it exactly right, and Doug's post formulates the concept in a bizarre way.

The point Stevens & other anti-DP people are making is that condemned defendants should be treated at least as well as condemned animals, *not* that "the Eighth Amendment requires that condemned defendants should be treated more like condemned animals."

Posted by: Sentencing Observer | Jan 7, 2008 2:16:05 PM

And how long before the DP opponents say that the vet procedure is wrong? I'm sure there's lots of people who think we shouldn't put any animal to death for any reason.

And... aren't most animals contained in very small cages without cable TV? Must be the supermax of supermax...

The comparison between animals and humans is a bad one in all of these contexts.

Posted by: Steve | Jan 7, 2008 2:25:40 PM

Guys, this animal/human thing is a canard. Judge Sutton of the Sixth Circuit demolishes it here:


Stevens is losing it.

Posted by: federalist | Jan 7, 2008 2:37:47 PM

Speaking of Michael Vick, word is he's into the drug treatment program at Leavenworth, and should be getting out of prison awfully early. Nice job failing the drug test while on supervision, Mike!

Posted by: Steve | Jan 7, 2008 3:11:29 PM

Sutton is a ridiculous hack. That link also does very little to deflect this point. The 3-drug cocktail was hastily put together by some moron in Oklahoma who had no idea what he was doing, every state blindly copied it, and it basically lacks any reasoned defense.

Posted by: Sentencing Observer | Jan 7, 2008 3:47:59 PM

Raising false arguments is a normal part of oral argument. Whether or not the humans v. animals distinction is valid is a different question. (Personally, I think that much more immoral to kill an animal without due process than a person, my position on this matter is indisputably correct.)

The bigger problem with Federalist’s argument is that he simply refers to a case without explaining WHY a question during oral argument was invalid. It may well be, as one poster here says, that Sutton is a hack. But, Federalist would need to explain why Sutton was correct in order for his point to have some weight.

Posted by: S.cotus | Jan 7, 2008 4:02:47 PM

The relevant part of Judge Sutton's opinion is here. (p. 10 of the .pdf):

Attempting to fend off this conclusion, Workman maintains that the use of pancuronium bromide (the second of the three drugs used by Tennessee) must be cruel and unusual because even
veterinarians refuse to use it in euthanizing animals. On reflection, however, this contention is more of a debater’s point than a legitimate attack on the three-drug protocol. In euthanizing animals, veterinarians use just one drug—a barbiturate not unlike sodium thiopental (the first drug used by Tennessee), except that the barbiturate used on animals acts more slowly. The problem with using a barbiturate alone, Tennessee determined, is that it takes too long, and no other State uses a
barbiturate by itself. Report at 8 (noting that a multi-drug protocol “likely result[s] in a more rapid death” and that “to date no other state has used a [one-drug] protocol”). In its recent review of the protocol, Tennessee also considered the other option for eliminating pancuronium bromide from the procedure—use the first and third drugs. As the State explained, however, a two-drug protocol would lead to convulsions, a phenomenon the State understandably wished to avoid out of respect
for the dignity of the individual and presumably out of respect for anyone, including the inmate’s
family, watching the execution. Id. at 8 (Lethal injection without pancuronium bromide “would
typically result in involuntary movement which might be misinterpreted as a seizure or an indication of consciousness.”). Like the vast majority of States and the Federal Government, as a result, Tennessee uses pancuronium bromide to prevent this from happening. Id. at 7 (“[P]ancuronium bromide . . . speeds the death process, prevents involuntary muscular movement that may interfere with the proper functioning of the IV equipment, and contributes to the dignity of the death process.”).

I tend to agree with Judge Sutton, but as Mr. cotus points out, there's nothing wrong with Justice Stevens asking at oral argument for the state's views on the point.

Maybe Justice Stevens thinks the argument has force. Maybe he doesn't and considered the question to be a softball. Maybe he thought he should ask it in view of the extra media exposure surrounding the argument. Maybe he was bored and tired wanted to ask questions to help himself stay awake.

Posted by: | Jan 8, 2008 8:14:24 PM

I was under the impression that the problem with the one drug protocol was that its extended length of action was discomforting for the required witnesses to watch. Now, anyone who would be a witness at such an event would, it seems to me, enjoy rather than not so, the extended time to effect death. Perhaps the better witnesses would be made up of the BTK killer, Charlie Manson and others of similar bent. At the end of the day, the over-arching issue is not whether a 3-drug or 1-drug protocol is more humane, it is whether the DP itself is humane. Since Anerica stands with Red China, North Korea and Iran on this, I guess we have the answer.

Posted by: bernie kleinman | Jan 9, 2008 8:36:29 AM

If the witnesses don't find watching someone die uncomfortable and disturbing, even if the death is as painless as possible, there is something seriously wrong with them. I mean, they are watching another person being killed for crying out loud. If they don't find that sight to be disturbing and horrifying, they are no better than the criminal who is being executed (which is exactly why the death penalty should be considered immoral, because it lowers society to the level of a murderer). Their comfort shouldn't even be a consideration.

Of course, opponents of the death penalty would probably be best served by making executions public and painful again - chances are the horror (not only of having to observe death, but of witnessing tons of people applauding death and treating death as a show) would make people realize that the death penalty is an obsolete relic of a time when life was cheap that solely serves to satisfy the blood lust of a sick public. Making the inheriently inhumane (the intentional killing of another person) "humane" only serves to keep the death penalty alive because it prevents society from having to confront the inherient immorality of the death penalty which is that it lowers society to the level of a murderer.

The fact that states wouldn't allow veterians to use the procedure states use for the death penalty and that they are more concerned with making death comfortable for the witnesses than the person being executed shows the extent that the states are trying to protect their dinosaur. If it is clean and out of sight, people won't have to confront what is being conducted in their name.

Posted by: Zack | Jan 9, 2008 10:33:42 AM

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