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January 2, 2008

My debatable PENNumbra views on Baze

Throughout December, Alison Nathan and I have been exchanging thoughts on the Baze lethal injection case for a PENNumbra debate to be published later this month. Thanks to SSRN, the draft debate is now available at this link. Here is the simple abstract:

Professors Berman and Nathan debate the legal, political, and practical context in which the Supreme Court will decide Baze v. Rees, a constitutional challenge to Kentucky's three-drug lethal injection protocol.

I personally got a lot of insights from participating in this debate.  I hope readers will, too (and will share reactions in the comments).

January 2, 2008 at 10:58 AM | Permalink


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» Lethal Injection Case from Crime and Consequences
The U.S. Supreme Court will hear oral argument in Baze v. Rees, the Kentucky lethal injection case, on Monday. Briefs and other pertinent documents are collected here. Orin Kerr has this post at the Volokh Conspiracy. Alison Nathan and Douglas... [Read More]

Tracked on Jan 3, 2008 11:28:34 AM


Certainly interesting and no doubt very relevant points made by both participants. But I was left at the end, intensely depressed at the thought that the greatest legal minds, or at least the most revered under the constitution, may waste their energies in the coming weeks on such nuances when actually we are talking about what civilized men may do to other human beings in the name of "the civil law". The time for buck-passing has surely run out. In the first world war men were shot on the battlefield for desertion and cowardice - often men who were in fact mentally shocked and exhausted and needed care and attention. We don't do that today. There were times past when life was cheap and men were hung for theft or less. We don't do that today. Today, in some few remaining US states, we kill convicted murderers - against the norms of civilized decency shown by most states and by most nations in the developed world. It IS time now that the law recognized the reality that, whether popular or not, killing people in the name of civil society is just wrong. If the Constitution is to have any relevance to society today, the Justices must use it in this case to close a chapter of history on the death penalty in the US. The brutal use of the lethal injection together with the deeply flawed conviction process are reasons enough to declare that the death penalty fails the test of the Constitution and should today be declared unconstitutional throughout America. The day must surely be near when we can all say of the death penalty - "We don't do that today". Let's hope the Justices are listening.

Posted by: peter | Jan 2, 2008 4:29:38 PM

We get it, Peter. You're against the death penalty. Thanks.

Posted by: | Jan 2, 2008 5:40:29 PM

Peter, let me ask you a blunt question, what is more barbaric, the execution of a guilty murderer or the release of Wayne Dumond, a violent criminal, who went on, if press reports are to be believed, to kill again (I say kill again because Mr. Dumond, under oath, stated that he participated in the killing of someone.) I find it interesting that people who decry executions of killers usually fail to have the same outrage when violent criminals are foisted upon society after short sentences, with predictable results.

Posted by: federalist | Jan 2, 2008 6:10:50 PM

I particularly like the citation to "renowned pop philosopher Hannah Montana" (p. 13).

Posted by: Kent Scheidegger | Jan 2, 2008 6:20:40 PM


probably from obsolete Dutch vuisten to take into one's hand, from Middle Dutch vuysten, from vuyst fist; akin to Old English fȳst fist
Date: circa 1587

1 a: to introduce or insert surreptitiously or without warrant b: to force another to accept especially by stealth or deceit 2: to pass off as genuine or worthy 3. a politician's oath to uphold the constitution of the United Sates of America

Posted by: George | Jan 2, 2008 7:33:42 PM

I have no problems in expressing outrage when uninformed political judgments appear to have led to the release of a violent criminal who went on to kill when professional assessments may have indicated it was unsafe to do so. I do not however support a view that we should execute just in case such errors are made. The question of whether to execute or not stands on its own. In my view, the arguments in favor fail all modern tests of civilization and function.

Posted by: peter | Jan 3, 2008 3:09:51 AM

Peter, the question was which is more barbaric: the execution of a guilty murderer or the release of Wayne Dumond, a violent criminal, who went on, if press reports are to be believed, to kill again (I say kill again because Mr. Dumond, under oath, stated that he participated in the killing of someone.)

It seems that you cannot answer that simple question.

Posted by: federalist | Jan 3, 2008 10:06:49 AM

The release of someone back into society cannot be barbaric, only right or wrong according to individual assessment of risk following punishment. However, all killing is barbaric whether committed by an offender or by the state. It is pointless to argue that one killing is more barbaric than another.

Posted by: peter | Jan 3, 2008 10:23:15 AM

Well, there you have it. First, murder and executions are equated, a silly proposition. Second, the imposition of unjustified risk on society by wrong-headed policies that released many violent criminals to kill "can never be barbaric".

Interesting worldview.

Posted by: federalist | Jan 3, 2008 12:15:22 PM

The 16 finalists have been announced for this online reality show. Looks very cool.


Posted by: Buzzguy223 | Jul 2, 2008 1:31:41 PM

The finally announced the 16 finalists for the Now Debate THis Reality show! http://www.nowdebatethis.com/

Posted by: Buzzguy223 | Jul 12, 2008 7:06:04 PM

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