Judge Pregerson’s Graphic Response To The Death Penalty

Ninth Circuit Photo 3.jpgDoug Berman, Rick Garnett, and Kent Scheidegger have all been blogging a bit about yesterday’s 14-1 en banc Ninth Circuit decision upholding a competent defendant’s right to waive further death penalty appeals. Kent calls it a welcome correction of a “jaw dropping” panel decision. Rick asks hard questions about whether an capital punishment opponent’s commitment to human dignity also demands that such a person support a death row volunteer’s autonomous choice to use state death machinery to kill himself. I share Rick’s anxiety over these issues, although we may differ in fundamental ways since my concerns about the death penalty relate more to it’s fairness in application, rather than its morality as a sanction, and because I believe competent individuals generally should have the right to terminate their own lives. (I’m not sure where Rick stands on that issue.) There can be no doubt, though, that lawyers representing death row volunteers face deeply complicated ethical choices.

But what of the particular case at issue, Comer v. Schriro? By the wide margin of the Ninth Circuit vote, you might think that this matter wasn’t a close call. A competent man doesn’t want to pursue his habeas action. Why should a court intervene? Yet there was something about this matter that gave several judges pause.

The one dissenter, Judge Pregerson, adopted and republished Judge Ferguson’s panel majority opinion as his own. He added two interesting and important details at the end of his dissent, however. Thus far, they have eluded comment. First, he made clear (in powerful language) that the only remedy at issue was whether the Comer would receive a new sentencing hearing:

Nothing in this opinion requires the Arizona court to conduct a new penalty phase. The due process violation occurred after the guilt phase of the trial. The due process violation occurred after the penalty phase of the trial. The due process violation occurred at the sentencing hearing held by the Arizona trial judge who imposed the penalty of death on a man who was naked, bleeding, shackled, exhausted and semiconscious. Comer wants to die. Arizona wants to execute him. There is little question that this will happen. Judge Ferguson’s opinion only requires that the sentence of death be pronounced to an understanding human, not to a discarded piece of flesh.

Second, to make his point, Judge Ferguson appended this photo of Comer at his sentencing hearing – scraggly and naked but for a towel – an image powerfully reminiscent of the proofs we use to condemn other nations (and, at times, our own) for their inhumanity. It raises the question fourteen judges applying objective law could not reach: is this sentencing hearing a moment Americans can be proud of? Or perhaps more cynically, is this any way to convince the world of America’s exceptional justice system?

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5 Responses

  1. Helsge says:

    “It raises the question fourteen judges applying objective law could not reach: is this sentencing hearing a moment Americans can be proud of?”

    Could not reach? Or rather, was not a question that our democracy entrusts to unelected judges?

  2. Rick Garnett says:

    Hi Dan — thanks for posting that picture. For what it’s worth: Like you, I believe it is crucial that the death penalty’s use (which, I believe, is constitutional) be constrained by, and imposed via, demanding, heightened procedural safeguards. And, I think that a death-row inmate’s decision to waive challenges to his sentence can be entirely reasonable. I don’t, though, think there’s any moral right to “terminate one’s own life.”

  3. cosim says:

    Part of the rationale for certain advocates of capital punishment entails a condemned person understanding his fate; not as something he acquiesces to, but as something he, by his murderous actions, demands. (Perhaps a simplification in many ways, but I think it’s fair enough to say that G.W.F. Hegel subscribes to that view, for example).

    Such advocates believe that in such a manner, capital punishment (ironically, paradoxically) honors the humanity in the condemned. Part of Harry Pregerson’s concern no doubt is directed at a human being addressing another human being, “not to a discarded piece of flesh.”

    The image concluding Pregerson’s dissent seems to be the ultimate rejoinder to the technocratic jurisprudence against which I take Pregerson to be rebelling; that “human body is the best picture of the human soul.” (Ludwig Wittgenstein). Against all of the procedural mumbo jumbo there is at high noon a debased body, a sick soul. But Pregerson is justly irate because Arizona denied a human being his humanity. He says – rightly, I feel – that you can kill a man, but you can’t strip him of his humanity. But that’s what Arizona seems to be getting away with.

    What Pregerson saw, and what his fellow judges evidently did not, was a simple case of the technical law not being necessarily just. “In Hell there will be nothing but law, and due process will be meticulously observed.” (Grant Gilmore).

  4. dillion says:


  5. danielle says:

    i think that the death penalty should be used, but i have heard that in some cases innocent people have ben put to death. so maybe im not so sure on the whole thing.