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August 27, 2011

"Perry delivers on Texas death penalty"

The title of this post is the headline of this provocative commentary by Debra Saunders appearing in the San Francisco Chronicle. Here is how it starts and ends:

As Texas governor, GOP presidential hopeful Rick Perry has presided over 234 executions. It's a record number, which, the Washington Post reported last week, bestows on Perry "a law-and-order credential that none of his competitors can match -- even if they wanted to."

Watch how pundits will try to turn that statistic into a political negative -- and paint Perry as the governor with blood on his spurs -- even though American voters overwhelmingly support the death penalty....

I think the death penalty could be a much bigger problem for President Obama as he seeks re-election. Obama says that he supports the death penalty, but his administration opposed Texas' scheduled execution of Humberto Leal -- who was convicted in the 1994 rape-murder of a 16-year-old -- because Leal, a Mexican citizen raised in San Antonio, had not been advised that he was entitled to consult with the Mexican Consulate.  Perry would not oblige, and Leal was executed.

Also, under the Obama administration this year, the Drug Enforcement Administration seized the lethal-injection drug sodium thiopental from Georgia, Kentucky and Tennessee on the grounds that the Food and Drug Administration has not approved drugs intended to execute convicted killers.

Yes, folks, those are your tax dollars at work in the Obama administration - funding federal law enforcement raids designed to undermine state laws.  It doesn't matter that the U.S. Supreme Court upheld lethal injection by a 7-2 margin in a 2008 ruling.  If there is one way Democrats know how to use the federal government successfully, it is to sabotage state laws they don't like.

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August 27, 2011 at 04:48 PM | Permalink


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"Watch how pundits will try to turn that statistic into a political negative -- and paint Perry as the governor with blood on his spurs -- even though American voters overwhelmingly support the death penalty...."


I would dearly love for this next election to become a referendum on the DP. And yes, Obama nominally supports it -- in the same way he opposes gay marriage, which is to say, not much. Perry's DP support is unambiguous.

So, abolitionists, attack Perry on DP grounds. Please!


Posted by: Bill Otis | Aug 27, 2011 5:29:13 PM

Perry does not pardon; he does not commute. Death, death, death. It's the Texas way. It's my way. It's Bill's way. It's America's way. Vote for Perry!!!

Posted by: Bubba from Georgia | Aug 27, 2011 7:28:43 PM

Well, Bubba, if you can't convince the electorate to end the DP, and you can't convince the SCOTUS, and you can't deny that supporting capital punishment is a big political plus for Perry, you can always..........stomp your foot! Far out!!

Posted by: Bill Otis | Aug 27, 2011 10:47:25 PM

Given the state of our country, only a total nincompoop would hope that the next election would focus on such an insignificant issue as the death penalty....good grief.

Posted by: rick | Aug 27, 2011 10:56:32 PM

Once again,a columnist states that Rick Perry has "presided" over executions in Texas. As Rick posts above, I seriously doubt the DP is going to be a big campaign issue. Economy. Also, Saunders doesn't explain the reason the government took possession of the drugs from the 3 states. It sounds like she didn't do her homework.

Posted by: DaveP | Aug 28, 2011 9:35:09 AM

rick --

"Given the state of our country, only a total nincompoop would hope that the next election would focus on such an insignificant issue as the death penalty....good grief."

The DP is hardly insignificant; indeed, the moral stakes are huge (this is something abolitionists are right about). I agree that it is not as important as Obama's record of sustained high unemployment, exploding debt, a failed (but very expensive) stimulus, continued severe weakness throughout the economy that he fecklessly portrays as mere "bumps in the road," the politicization of the Justice Department, and on and on.

But if there is nincompoopism going on, take it up with such liberal outlets as "Hardball" and the Washington Post, which have already started in on Perry and his DP record. They put it on the table, not me.

Posted by: Bill Otis | Aug 28, 2011 10:48:55 AM

Aside from those to whom it may be directly applied, the death penalty is insignificant from any perspective except those obsessed with debating and re-debating the Culture War. The numbers involved are small and the "moral stakes" are way overblown, by both sides. More people die from crappy healthcare in prison than via execution, even in states like Texas that execute the most. But Culture Warriors on both sides seemingly couldn't care less.

Personally I consider the death penalty more humane and moral than LWOP. Death is a fate that awaits us all and no man is promised tomorrow. Indeed, many Christians believe that, for those who've accepted Christ, death will lead to a fabulous, much-desired existence in Heaven more pleasant and satisfying than that experienced by anyone on earth. (And since even the thief on the cross could be redeemed, there's no canonical reason to think death-row conversions are any less legitimate than those, like this correspondent, who walked down the aisle at a Billy Graham revival.) By comparison, long-term imprisonment is the harsher and IMO more morally questionable punishment, and for that matter is more questionable under an 8th Amendment analysis, at least for those interpreters with an "originalist" bent, since decades-long incarceration was entirely unknown in America when the Constitution was penned.

The statistic you'd think rational people would focus on isn't the number of executions per thousand murders but the number of murders per 1,000 population! By that metric, Texas doesn't look so hot. But I've yet to see anyone criticize Perry on that score, and don't expect to. Somehow Culture War debates over the death penalty always seem to predominate compared to conversations about what strategies and tactics that actually keep the public safe. That attitude strikes me as quite strange, but it's seemingly ubiquitous.

The death penalty is like a scantily clad girl in a magician's act: Its main role is to distract the audience from what the performer is really doing; it's role as far as the actual outcome is seldom if ever pivotal, just part of an illusion.

Posted by: Gritsforbreakfast | Aug 28, 2011 3:37:33 PM

"provocative" isn't the word I'd use to describe that nor "commentary." I can understand why a corporate controlled newspaper would print this unalloyed stupidity from an ignorant uneducated hack. What I cannot understand is why a smart people who should know better like Professor Berman or Bill Otis would fall for it. The clue that this is the work of an ignorant, uneducated hack comes from the last sentence of the except - which tells you all you need to know about Debra Saunders - "If there is one way Democrats know how to use the federal government successfully, it is to sabotage state laws they don't like." Really, that is not the sentence of a serious commentator. It is not the sentence of someone who is familiar with history or law. It is the sentence of a political hack looking to make points with people who are too ignorant to know history of law.

Informed people know that President Bush went after Texas for violating the exact same treaty. Informed people know that just about every President since Washington have gone after states who are not following federal law. Its called being the President. Its a nonissue for educated adults who know what the President's job is. Anyone serious knows that a Republican President would have done the exact same thing with Leal and the illegally obtained execution drugs. Its called enforcing federal law which states are required to follow which is the President's job. In the unlikely event he is elected President, Gov. Perry - or any other Republican - would do the exact same thing.

Its sad that such ignorant "commentary" can be published by a "newspaper" or be taken seriously by anyone. Really, this commentary would be more fitting as one of the intentionally ignorant opinion pieces in The Onion or in an Ed Anger piece in the Weekly World News. It makes me sad that someone who is either so unethical to realize that President Bush did the exact same thing she is attacking Obama for - or so ignorant to not realize that President Bush - and every other PResident before then is given a voice in a major newspaper or that anybody here takes it seriously.

And Bill - get real, even in death penalty states, governor's elections haven't become referendums on the death penalty even when there have been candidates who oppose the death penalty. And the death penalty is really a state issue since there are very few federal death penalty cases - and I would argue very few death penalty elgible cases which should be prosecuted by the feds. But arguing when the feds should prosecute someone for a crime which we all agree they have jurisdiction under federal law the Commerce Clause is a serious issue. This commentary is not the place to discuss serious issues. Unfortunately, it seems that elections and "political commentary" are no longer the place to discuss serious issues either.

ginny :)

Posted by: virginia | Aug 28, 2011 8:14:13 PM

Prior to calling other people ignorant, it is a good idea to have your own facts straight.

Virginia writes, in relation to the last sentence of the Saunders article, "Informed people know that President Bush went after Texas for violating the exact same treaty." Actually, the end of Saunders' article has nothing to do with violation of any treaty. It has to do with actions taken under federal drug laws, laws that the FDA under prior administrations of both parties has considered inapplicable to drugs used for lethal injection. See Heckler v. Cheney, 470 U.S. 821, 824 (1985).

The treaty comment apparently refers to the Medellin case (although it's difficult to be sure). To characterize the Bush Administration's position in that case as going after Texas for violating the treaty is grossly oversimplistic. The Administration actually supported Texas's position that the treaty was not self-executing and did not override state law absent an action by the federal government. The division between the Administration and the state was over the question of whether the required federal action had to be an act of Congress or whether the President unilaterally could take that action. The Supreme Court agreed with Texas that it had to be Congress.

Posted by: Kent Scheidegger | Aug 29, 2011 10:56:40 AM


Nailed it!

Speakin uh nails... Whaddya think about maybe CRUCIFYIN' 'em in Texas for a change? Eh?

Oh, wait...then we couldn't shoot em. DAMMIT!

Does anybody on here no anythin' about the constistutiobanality of nail guns?

Posted by: Al Ammo | Aug 29, 2011 3:05:59 PM

Al Ammo --

"Does anybody on here no anythin' about the constistutiobanality of nail guns?"

Not that I've heard, but please do give us all the benefit of your typically nuanced analysis.

Posted by: Bill Otis | Aug 30, 2011 8:39:17 AM

Kent, we both know that we could list repeated examples of Republican administrations going after state laws and state actions which conflict with federal law often due to motive of opposing the state law - so we both know that her attack was indefensibly silly and purely blind partisanship. However, it was even worse than that, because either she is either incredibly ignorant or being intentionally dishonest and misleading.

The federal law banning states from importing medication was passed by a Republican Congress after being promoted by the Bush Administration. That law was passed in reaction to several states, wanting to import medication from Canada to save money in state facilities, with Medicaid, and state employee benefits. President Bush therefore did enforce the exact same law against the states - indeed, it was the Bush Administration which pushed that law into existance in the first place. As a law passed under Bush, it did not exist at the time the case you cited existed.

There is also a key legal difference between use of a medication and the importation of the medication. The states would not be violating the federal law in the use of the medication for lethal injection, but they did obtain it illegally by importing it from unlicensed companies. At least since prohibition ended the distinction between manufacture and importation and use may not be too important in criminal law, but it extremely important in health law. In health law, the administration of medication is controlled by one sets of laws and regulations and the manufacturing and importation is controlled by a different set of laws and regulations. Federal law must be enforced evenly - if it is illegal for states to import medication outside of FDA approved channels, states cannot import that medication for any purpose including use in executions. Otherwise, you create a potential back door where a state could add a commonly used and expensive medication to the execution protocol and then save money by "accidentially" comingling the cheaper "for execution use" supply with the more expensive "for patient use" supply. Manufacturing and importation must be done through FDA channels - and that is a neutral policy regardless of intended use because otherwise you create a potential backdoor for states to exploit.

In summary, President Obama was enforcing a federal law passed by a Republican Congress and promoted by President Bush who wanted to be able to stop states from undertaking a policy he did not approve of. That federal law bans states from importing medication from non-FDA approved sources for any purpose - the states violated the law by importing the execution drug. It was the act of importation which violated federal law and because the medication was illegally imported, it was seized just like bootleg DVDs or illegal drugs would be. It was contraband and was seized like any other illegal contraband would be. Realistically, there would be nothing or very little stopping a state from comingling or redirecting a medication imported "for execution use" with the patient supply because there is nothing stopping a state from using imported medication - only the act of importing the medication violates federal law. That is what makes this "commentary" so profoundly silly and dishonest.

ginny :)

Posted by: virginia | Aug 30, 2011 11:43:53 AM

"Typically nuanced"?


A'm about as old school as ya can get, Bill!...an a'm hurt to be attacked by someone I thought was an ally!


Posted by: Al Ammo | Aug 30, 2011 1:06:52 PM

"To the man who only has a hammer, everything he encounters begins to look like a nail." - Abraham Maslow

Posted by: Abe | Aug 30, 2011 3:33:09 PM

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