Category: Capital Punishment


FAN 99.5 (First Amendment News) Execution secrecy bill passed by Mississippi Senate

Attorney General Jim Hood applauded the Mississippi Senate today for approving a measure intended to protect the safety of the individuals responsible for carrying out executions. Senate Bill No. 2237 would protect the identities of the state executioner and members of the execution team, and would also keep confidential the names of the local supplier or suppliers of lethal injection drugs located in the State of Mississippi. The bill was drafted by the Attorney General’s Office, and it is part of the Attorney General’s legislative agenda. — Office of Attorney General Tim Hood, March 1, 2016

Mississippi Senator Sean Tindell introduced Senate Bill No. 2237, which in relevant part provides

“The identities of all members of the execution team, a supplier of lethal injection chemicals, and the identities of those witnesses listed in Section 99-19-55(2) who attend as members of the victim’s or the condemned person’s immediate family shall at all times remain confidential, and the information is exempt from disclosure under the provisions of the Mississippi Public Records Act of 1983.”

Senator Sean Tindell

Senator Sean Tindell

“Notwithstanding any provision of law to the contrary, any portion of any record of any kind that could identify a person as being a current or former member of an execution team or a current or former supplier of lethal injection chemicals, or those witnesses listed in Section 99-19-55(2), shall be privileged and shall only be subject to discovery, subpoena, or other means of legal compulsion for disclosure by order of a court of competent jurisdiction, and the remainder of the record shall not be privileged or closed unless protected from disclosure by law.”

“A person may not knowingly disclose the identity of a current or former member of an execution team, a current or former supplier of lethal injection chemicals, or witness who wishes to remain confidential, or disclose any record of any kind knowing that it could identify a person as being a current or former member of an execution team, current or former supplier of lethal injection chemicals or confidential witness.  Any person whose identity is disclosed in violation of this section shall:

(a)  Have a civil cause of action against a person who violates this section;

(b)  Be entitled to recover from any such person:

(i)  Actual damages; and

(ii)  Punitive damages on a showing of a willful violation of this section. . . .”

The bill passed 32-18 and is currently being held in the Senate on a motion to reconsider.

Press Opposition

  • “‘If we’re going to be in the business of putting people to death, there needs to be as much openness as possible,’ said Layne Bruce, executive director of the Mississippi Press Association.”
  • “[G]overnment secrecy coupled with prior restraint — the gag of state censorship — is unacceptable. — Geoff Pender, Clarion Ledger
  • “If there is anything that should be completely transparent, it is everything related to the state’s taking the life of one of its citizens. [This bill] rightfully should send chills down the spine of every Mississippian who values the civil liberties guaranteed by a free and unfettered press. This is Mississippi, not the old Soviet Union, not some banana republic, and this cannot be allowed to stand.” — Ray Mosby, Deer Creek Pilot

AALS, Professor Dan Markel, and the Scholarly Tradition

This week is the annual law professor conference in New York City. The AALS conference is always a wonderful ritual of learning, discussion, and friendship. Indeed, it was the one time of the year that guaranteed a lunch, dinner, or chat with brilliant criminal law theorist and incredible friend Dan Markel. When Dan was murdered in the summer of 2014, I wrote this post for Forbes about his life’s lessons. For colleagues who are going to AALS this year, CoOp will be having a Markelfest in his honor tomorrow night. I wish that I could be there to celebrate Dan and his passion for scholarship and the world of ideas. We miss you, Dan.


Lawyers and Clients: The Absurd Reality for Indigent Clients Facing Execution

A Thought Experiment

Suppose that Facebook got sued for a privacy tort for hosting nonconsensual pornography and that Facebook’s lawyer told company executives that she did not intend to mount Facebook’s preferred response—a motion to dismiss on the grounds of Section 230 immunity. Executives explained to the lawyer that Section 230 of the federal Communications Decency Act is a knock out punch. An Internet intermediary can’t be held responsible for privacy-invading content created by a user. The lawyer, however, refused to listen to reason.

When Facebook tried to switch attorneys, its first lawyer told the court that Facebook should be forced to remain represented by that lawyer even though Facebook wanted a new one. In making that argument to the court, Facebook’s first lawyer told the court that she was doing a good job for Facebook and that her refusal to mount Facebook’s preferred defense was because Facebook had no Section 230 immunity. Facebook’s lawyer would not only be undermining her own client’s case, but would also be incorrectly representing the underlying issue to the court.

Facebook’s lawyer would be in flagrant violation of fiduciary duties to its client. Of course, clients with money can fire lawyers. Those lawyers certainly should not be permitted to undermine a client’s case in the course of trying to retain the representation—especially by inaccurately representing key features of a case. That sounds so obviously right: a contrary suggestion would surely be absurd.

Absurd Reality for Indigent Clients Facing Execution

For a reason that is hard to fathom, this is precisely what is allowed to happen in criminal cases affecting indigent clients facing execution. Apparently – at least in the Fifth Circuit – the relationship between client principals and lawyer agents is different.

This week, in Roberson v. Stephens, the Supreme Court will consider whether the execution of Robert L. Roberson should proceed even though his lawyers seem to have prioritized their own reputational interests at the expense of their client. Over at Balkanization, my colleague Mark Graber has a careful explanation of how Mr. Roberson’s lawyers seem more preoccupied with their reputations than with resuscitating a Sixth Amendment claim that might save his life.

At issue in Roberson is a failure of legal agency involving the same death penalty lawyers that a palpably displeased Justice Sotomayor rebuked on the eve of their client Raphael Holiday’s November 18 execution. The lawyers refused to file a clemency petition and opposed Mr. Holiday’s attempts to find a lawyer who would follow his wishes and file it. Forced to go along with the Court’s refusal to stay the execution because the attorneys filed a last-minute clemency petition, Justice Sotomayor nevertheless issued a powerful statement criticizing the lawyers for their behavior and the lower courts for failing to police it. She explained that the law does not permit “condemned men and women to be abandoned by their counsel at the last moment . . . [y]et this is exactly what happened here.”

Here again, the same lawyers have seemingly refused to listen to their client, Mr. Roberson, because doing so might require one of them to expose himself to a finding that the forfeiture of the Sixth Amendment claim was his own fault.

As briefing submitted in support of Supreme Court review explains: “In both Roberson and Holiday, the Fifth Circuit permitted the same pattern of conduct: CJA counsel’s refusal to pursue relief on the client’s behalf, followed by counsel’s inaccurate representations to courts about the constraints on seeking such relief, concluding with legal opposition to the very client they were appointed to represent. At base, both Roberson and Holiday express the Fifth Circuit’s view that [the statutory right to counsel] affords courts discretion to saddle inmates facing execution with lawyers who are not functioning as agents of their clients.”

The assessment of the ethics experts in the case is unequivocal. Yale Professor Lawrence Fox is the former Chair of the ABA Standing Committee on Ethics and Professional Responsibility, and the former Chair of the ABA Litigation Section. Professor Fox concluded “to a reasonable degree of a professional certainty that both lawyers are operating under profound conflicts of interest that prevent them from continuing the representation[.]” Charles Herring, a renown Texas ethics expert, explained: “James Volberding and Seth Kretzer have conflicts of interest that should prevent them from representing Mr. Roberson on the [Sixth Amendment issue in the case].”

I may not be a death penalty lawyer, but I know enough to understand that we should not be allowing attorneys to obstruct relief preferred by their own clients—particularly in cases where the attorneys seem to be engaged in obstruction as a means of protecting their own interests. If we would not allow counsel for Facebook to cling onto her job contrary to the interest of its client, we certainly should not do so in a case where the stakes are not just about money but about life and death.



A Painful Death

Justice Breyer’s dissent this summer in Glossip v. Gross, has sparked much-needed commentary about the death penalty’s future. Declaring his belief that capital punishment is likely unconstitutional under the Eighth Amendment “in and of itself” (meaning separate from challenges to state methods of execution), Justice Breyer outlined what he called the death penalty’s “fundamental constitutional defects”—unreliability, arbitrariness, and “unconscionably long delays” that undermine its penological purpose. He challenged defense lawyers to bring a case to the Court testing his thesis. Perhaps understandably, this pivotal dissent has eclipsed critical analysis of the Court’s 5-4 decision in Glossip, which upheld Oklahoma’s lethal injection protocol under the Eighth Amendment. But the majority opinion in Glossip says some troubling things about state violence that warrant closer examination. Thus, in this post, I focus not on the death penalty’s vulnerability, but rather on the implications of Glossip’s disastrous test for assessing methods of execution under the Eighth Amendment and its potential implications for constitutional doctrines applicable to state uses of force more broadly.

As I sketch out below, Glossip, provides that a State’s method of execution may be constitutional even if it creates a substantial risk of severe pain, so long as an alternative less painful measure is not readily available at the time of a challenge. This analysis ignores that, as a practical matter, foregoing an execution until it can be accomplished without a “substantial risk of severe pain” is necessarily always an option available to the State. It thus incorporates a de-facto exigency consideration within Eighth Amendment jurisprudence and allows the State to carry out painful deaths. I provide some initial thoughts about this issue, but first provide necessary background on Glossip.

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Death Penalty Free Riding

With the constitutional debate on the death penalty now back on, I want to make an observation about that punishment that flows from the recently completed Boston Marathon bomber trial.

It seems to me that the DOJ’s decision to seek the death penalty in a state that does not have capital punishment sets a precedent that could undermine that regime nationwide.  Suppose you’re in a state that is thinking about getting rid of the death penalty.  A good reply to that idea is that every once in a while there is a really heinous crime that merits a death sentence.  (The alleged killer in Charleston comes to mind.  So does Timothy McVeigh).

Not a problem, an abolitionist can say.  The DOJ will seek the death penalty in such a case.  In a really terrible crime, some ground of federal jurisdiction can be found.  In effect, states can just free ride on the federal government for “the worst of the worst” cases.”  No need to  maintain the expense of state death row, post-conviction review, or an execution method.

Not all states will feel this way, of course.  Some will say that the DOJ will not seek the death penalty often enough.  Or they might say that there can be horrible killers who would not trigger federal jurisdiction somehow.  My point, though, is that many states that have the death penalty but use it rarely might conclude that the DOJ can be safely entrusted with this discretion.  I wonder if we will see that argument made more often in the coming years.



To Sarat or Not Sarat

As in Austin Sarat, Law and Humanities scholar at Amherst College.  As in one of the leading figures within the Association of Law Culture and Humanities, which has become one of my favorite destinations over the years for engaging discussion across the disciplines.  (FYI, today is the deadline to submit abstracts to the Law Culture and Humanities Conference being held at Georgetown this year).
Glancing across Sarat’s scholarship one might notice a fascination with documenting the morbidity of law.  Images of war, death, and imprisonment filter the landscape of writings; the images are used to magnify their contrast. They create discourses in binaries.  We understand legal violence distinctive from non-legal violence; death distinctive from non-death; and imprisonment distinctive from non-prisoned life.  Sarat sums this up in his Article Violence, Democracy, Responsibility, and the Problem of Punishment.


Moreover, by equating the conditions of legal legitimacy with that masking, much of that jurisprudence promotes righteous indifference and allows law’s violence to continue unabated. I am neither so idealistic nor so naive as to imagine that a change in legal theory would in itself end violence done, authorized or approved by legal institutions and officials. Still the energy in much of my work on punishment comes from a desire to interrogate legal theory in order to understand how law, surrounded by so much pain, is, nonetheless, able to maintain its calm, bureaucratic facade.


Drawing on themes that prompt considerations of justice and violence, it’s no wonder that Sarat and Robert Cover were walking the same halls in New Haven in the early 1980’s.  I don’t know if Sarat and Cover interacted much.  Really, does it matter?  Sarat himself was a well accomplished scholar in the humanities prior to enrolling at Yale (I mean how many of us as one L’s had their professor begin a civil procedure class by reading and discussing our own work?) .  Perhaps he and Cover never interacted.  I’d like to think they didn’t but that the recursiveness of space, time and ideas latched on to them independently as they traveled the halls.

Besides violence, Sarat’s scholarship prompts me to think about similar themes in my own work.   Loneliness has been a particular theme of mine.  Robert Penn Warren, Fydor Dostovsky, and Flannery O’Connor have been shaping devices of this theme.  They play themselves out in a chorus of questions about space, roles, isolation, and time.  When Warren writes about the South as a Lonely place, he prompts me to wonder whether and how time shapes people.  For those three, time is the violence of memory, sometimes maintained through static relationships of property, law, family, and culture.  Sarat likewise prompts us to consider how time shapes our understandings of justice and violence.  He writes in the same article prompted above:

For me, democracy requires a particular orientation toward time. Democratic temporality is the time of change, of reconsideration. It is open-ended and open to a sense of the endlessness of time. Acts of punishment, even if we had a way of calculating what people deserve, are always in some sense the servants, not the masters, of time. Numerous authors have highlighted the problem of time in asking whether the person being subject to punishment, 2, or 12, or 20 years after the crime is really the same person as the one who committed the crime that justified the punishment in the first place. When, many years ago, Justice Brennan described the death penalty as taking away the right to have rights, he might well have said that no punishment that seeks to be timeless, or stop the movement of time, can be reconciled with a democratic theory of punishment.

The conception of time as a marker of change is one, I think Robert Penn Warren would greatly admire.  On May 15, 1961, The New Republic published a review of Warren’s essay The Legacy of the Civil War.  In the review essay, writer Peter d’a Jones aligned Warrens views with Robert Patterson of the Citizens Counsel of Mississippi, a group formed following the Supreme Court’s decision in Brown v. Board of Education.  The group, put simply, was designed to use legal (and non-legal) violence to stymie desegregation.
Following the review of Warren’s essay, Warren wrote a letter to the New Republic editor:

Dear Sir,

This letter is promoted by a review of my essay the Legacy of the Civil War, which appeared in your issue of May 15.  I could wish that Mr. Peter d’a Jones had thought better of my essay or at least of my intellectual integrity, but I am not now writing in defense of either.  What I want to do here is disabuse those readers who may feel, from Mr. Jones’ review that I have much sympathy with Mr. Robert Patterson of the Citizens’ Committee of Mississippi, whom he cites with, perhaps, some effect of guilt by association.  

The quickest thing for me to do is state three things — things which it is strange for any citizen to feel constrained to state.

1 It is morally right, as well as politically and economically necessary, that all the rights and privileges of American citizenship be guaranteed to all citizens.  
2 A man’s worth should be judged by the qualities of his manhood.
3 Any official of any state who does not honestly and vigorously endeavor to punish, with full rigor, any violence against or coercion of any individual or group has violated his public trust and should be impeached.  

I suppose that a reader can easily infer from these statements my attitude in specific instances, as I had assumed one might from other writings of mine, including the Legacy of the Civil War; but I shall add that I think Dr. Martin Luther King a great man, and that the sit ins conducted according to his principles are morally unassailable, and will win.  One reason they will win is that they offer, even to the man howling from the sidewalk, an exhibition of courage, dignity, and self control.  

                        Very Respectfully Yours,

                        Robert Penn Warren

P.S.  One more thing: since Mr. Jones takes the trouble to quote from me in 1929, I wish he had taken the trouble in his researches to glance at my explicit repudiation some time back, of what I said in 1929.  In 1929, in my youth, I was wrong — and even now, I do not feel myself entirely above error.  

Warren’s reflection of change over time merges with his views of social responsibility.   For what its worth, Warren was also wandering around New Haven in the early 1980’s.  How I would enjoy sitting at a table amongst Warren, Sarat and Cover as they talked about these things.  How the walls in New Haven must have been ablaze with ideas in the early 80’s.

(P.S. Robert Patterson was also former Captain of the Mississippi State football team — ergo my promised college football reference, in case anyone needed an irrational reason to hate the number one ranked team).


Intellectual Disability and Uncertainty in Hall v. Florida

I’ve been meaning to post about the Supreme Court’s decision last week in Hall v. Florida—the case in which the Court struck down as unconstitutional Florida’s law for determining whether an offender is intellectually disabled and thus cannot be executed. In its 2002 case of Atkins v. Virginia, the Court concluded that it is unconstitutional under the Eighth Amendment to execute a “mentally retarded” individual. (Thankfully, in Hall, the Court switched over to the term “intellectually disabled.” I’ll be using the terms interchangeably in this post.) In Atkins, the Court stated that it was leaving it up to individual legislatures to determine when a person is “mentally retarded”—in the Court’s words, it was “leav[ing] to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.” Now, other states and the medical community generally agree with Florida that a defendant is intellectually disabled if he has (1) “significantly subaverage intellectual functioning,” (2) “deficits in adaptive functioning,” (3) and “onset of these deficits during the developmental period” (by age 18). The first prong—the one at issue in Hall—is ordinarily determined by a defendant’s IQ score. States have concluded that an IQ score that is 70 or lower meets the “significantly subaverage intellectual functioning” standard. The Hall case raises the issue as to whether uncertainty in obtained IQ scores (or confidence intervals) ought to be included in determining the defendant’s true IQ score for the purpose of this first prong of the intellectual disability test.

In a 6-3 decision, the Hall Court concluded that Florida’s approach—of finding that an obtained IQ score greater than 70 may be determinative of the fact that the defendant is not intellectually disabled—is unconstitutional. In reaching this conclusion, the Court took a detour from its ordinary Eighth Amendment analysis, focusing heavily on the opinions of professional organizations. As in prior opinions, the Court was loose with the numbers in the state-counting aspect of its Eighth Amendment analysis, concluding that a “significant majority of States” have adopted procedures contrary to Florida’s approach. The dissent explains that, of the death penalty states, nine have adopted an approach similar to Florida, nine have not addressed the issue, and twelve take the approach that the Court finds to be constitutionally required. It is difficult to find a national consensus in these numbers. In finding a consensus, though, the majority includes the eighteen states that have abolished capital punishment. Whether to include non-death-penalty states in this calculus is an issue that the Justices have debated before. But the Court’s approach to finding a consensus in this case is especially interesting because of the metric it uses in doing so. Instead of looking at the number of states that have categorically prohibited a punishment—such as tallying the number of states that have banned executing the “mentally retarded,” the “insane,” or juveniles—the Court is counting the number of states that take into account standard errors of measurement (SEMs) in determining whether a defendant is intellectually disabled. This metric accounts for the uncertainty inherent in obtained IQ scores and provides a range in which it’s likely the defendant’s true IQ score falls based upon his obtained score. In examining this metric, the Court frames the question as whether it is unconstitutional for a state to not take into account SEMs in determining whether a defendant is intellectually disabled. But is it really this procedural matter that’s at issue here? Or do we instead care about whether individuals who actually have true IQ scores of 70 or below are being executed? For example, if a state were to conclude that a defendant is intellectually disabled if he has an obtained IQ score of 90 or below, and if the test used in the state has a SEM of 2.5—suggesting that it is quite unlikely that a defendant scoring above 90 on an IQ test would have a true IQ score of 70 or below—would it be unconstitutional for that state’s courts not to take into account the SEM in determining whether a defendant is intellectually disabled? The dissent suggests that another way to probe the uncertainty is to admit multiple obtained IQ scores—a practice the Florida procedures in question allowed. While multiple obtained IQ scores are relevant to determining the reliability of the obtained scores, using this evidence, alone, means working with a fairly small sample size. In Hall, the defendant submitted nine obtained IQ scores, and two were excluded by the sentencing court.

The Court’s decision in this case continues to chip away at the death penalty, albeit quite slowly. The majority’s departure from its traditional Eighth Amendment framework for analysis—a step that is far from new for the Court—injects further uncertainty into the limits on punishments under the Constitution. The Court’s willingness to think more deeply about the methodologies, math, and science underlying some of its decisions, though, furthers the understanding that the meaning of the prohibition on cruel and unusual punishments is evolving. Unfortunately, uncertainty remains about how the Court gathers information about these complicated aspects of law and fact, and how adept the Court is at understanding and employing these concepts.

There is much more that could be said about the Hall case, the Eighth Amendment, and judges’ uses of science and technology, but it has come time for me to sign off of Concurring Opinions for now. Thanks again to the Co-Op gang for asking me to visit, and I look forward to the next time!


Turning Back to Electrocution—Reversing the Eighth Amendment Ratchet?

A few days ago, the governor of Tennessee signed a law providing that scheduled executions could be carried out by electrocution rather than by lethal injection if lethal injection drugs were unavailable. This decision comes on the heels of states like Tennessee struggling with a shortage of lethal injection drugs. Also likely triggering this move are the allegationsthat states’ experimentations with new drugs and drug combinations in carrying out lethal injections are inhumane and constitute cruel and unusual punishments in violation of the Eighth Amendment. It’s understandable that states like Tennessee might try another strategy in carrying out death sentences. Moving to the earlier-practiced method of electrocution, though, is somewhat unexpected. Sure, several states have older methods of execution, like electrocution, as back-ups in case an individual requests it or lethal injection, in general, turns out to be unconstitutional. Alabama law, for example, provides that “[a] death sentence shall be executed by lethal injection, unless the person sentenced to death affirmatively elects to be executed by electrocution.” And Oklahoma law states that “[t]he punishment of death shall be carried out by the administration of a lethal quantity of a drug or drugs until death is pronounced . . . . [but] [i]f [lethal injection] is held unconstitutional . . . then the sentence of death shall be carried out by electrocution.” Providing for electrocution based only on the shortage of lethal injection drugs, though, is unprecedented.

Courts judge the constitutionality of a punishment by the “evolving standards of decency that mark the progress of a maturing society.” While individuals have been punished by death for time immemorial, the method of carrying out this punishment has evolved from hanging, to electrocution, to firing squad, to lethal gas, to lethal injection. New York, seeking a more humane method of execution than hanging, built the first electric chair in 1888. I’ll spare you the details, but electrocution has been described as a pretty gruesome process. This is especially so, at least from the observer’s point of view, when compared with the ordinary process of lethal injection, in which the offender is first sedated and then his involuntary movements are masked by a paralytic. The century-long movement away from electrocution seems to be consistent with the sense that our standards of decency improve from generation to generation. Jurisdictions abandon old methods of punishment as new methods emerge, and the old methods then become unusual in practice and also statutorily unusual.

These evolving standards of decency of the Eighth Amendment have been described as a “one-way ratchet”; once the Court declares a particular punishment unconstitutional, jurisdictions are prohibited from authorizing the punishment, therefore it has no chance to move from unusualness to usualness. Indeed, in oral arguments in Atkins v. Virginia, Justice Scalia suggested that the Court should be extremely careful in determining that a punishment is unconstitutionally cruel and unusual because “once [the Court has] decided that you cannot legislate the execution . . . , there can’t be any legislation that enables us to go back.” Considering that unusualness is essential to the Punishments Clause prohibition, this one-way ratchet idea is also relevant even if the Supreme Court has not officially declared a particular punishment to be unconstitutional. Once a punishment becomes unusual enough, it is at risk of being unconstitutional.

Electrocution has in fact become rather unusual. Only eight of the thirty-four death penalty jurisdictions (and only eight of the fifty-three death- and non-death-penalty jurisdictions) authorize electrocution in any circumstance. And there have been just 158 electrocutions in the United States since 1976. This is in contrast to the 1,204 lethal injections that have taken place during this same period. Electrocutions account for just 11% (158/1379) of the executions carried out since 1976. However, as I’ve suggested before, the Supreme Court’s standard of unusualness is somewhat changeable. Still, it seems that the unusualness of electrocution makes it constitutionally suspect even though the Court has not declared it unconstitutional.

But note that we’ve neglected to measure the cruelty of the punishment. Indeed, the Eighth Amendment prohibits punishments that are cruel and unusual. I’ve argued elsewhere that each of these components is necessary before a punishment is unconstitutional under this Clause of the Eighth Amendment. Indeed, the Court’s assessment of how many jurisdictions employ or prohibit punishment might be considered a measure of unusualness, and the Court’s turn to its own judgment about the punishment at issue might be deemed an inquiry into the punishment’s cruelty. (The first inquiry of unusualness, however, may often be linked to a society’s determination of the punishment’s cruelty as well.) But others view the relevant language of the Punishments Clause as a term of art rather than as a dual requirement. The scope of the phrase is interpreted by looking at a consensus of jurisdictions (and sometimes juries), plus the individual judgments of the nine Supreme Court Justices. Even under this view, though, the unusualness of electrocution is significant in its constitutional fate.

In Baze v. Rees, the Court stated that “capital punishment is constitutional. It necessarily follows that there must be a means of carrying it out.” But does the shortage of lethal injection drugs make what might otherwise be considered an unconstitutional punishment constitutional? If execution could only be carried out by torturous means, would torture become tolerable under the Eighth Amendment? There must be limits to this statement by the Court. Under current constitutional analysis, executions need not be free of pain, but they cannot be carried out by barbarous, outdated methods because more humane methods are logistically difficult. Allowing such a turn back in time would be a reversal of the Eighth-Amendment ratchet that has been said to move in only one direction.


Is the Death of Capital Punishment Nigh?

Thanks, Danielle and the entire Co-Op gang, for having me this month. I cannot promise to be the most uplifting blogger, as one of my primary areas of interest is cruel and unusual punishments, but perhaps I can provide some relief with my other interests—torts and law & science. Today, however, I’m starting with capital punishment.

In the wake of the botched Oklahoma execution, several people have asked me whether this will mark the beginning of capital punishment’s demise. The thought behind this sentiment seems to be that the horror of Clayton D. Lockett—the subject of the botched execution—writhing and clenching his teeth after he was injected with midazolam might convince the general public that capital punishment is just gruesome and no longer compatible with our sense of fairness and justice. While some observers might certainly find this to be the case, here in Texas—the death penalty capital—I’ve heard people express frustration that anyone has shown sympathy toward Lockett. “Why isn’t anyone talking about his victim?” they ask. “Why should we care that he suffered a few minutes of pain after what he did?” While I’ve tried to explain that the Supreme Court has drawn the line of constitutionality at offenders suffering from wanton infliction of pain, and that we should care about what happened in Oklahoma because it could possibly be considered unconstitutional, this legal argument seems to find little resonance with these questioners. And this sentiment of frustration doesn’t emanate from just Texans; I’ve heard the same thing from people all over the country. Still, the botched execution in Oklahoma—and other botched executions—have been successful in placing a spotlight on some of the problems with capital punishment today. Most of the recent concerns with executions stem from European countries’ refusal to provide death penalty states with certain drugs that have traditionally been used to carry out lethal injection. This has led to death penalty states turning elsewhere for drugs, such as compounding pharmacies, over which there is very little oversight, or using more readily available drugs, such as the medazoline that was used in Oklahoma. States’ new uses of drugs seem to be shrouded in secrecy or largely untested, leaving questions as to how reliable they are in carrying out executions and how much pain they may be causing in doing so. But do we really know how much pain lethal injection with the traditional three-drug cocktail (sodium thiopental, pancuronium bromide, and potassium chloride) caused offenders? Just because most states used similar lethal injection cocktails does not necessarily mean that they were the most humane way to carry out the punishment. There does not seem to be a realistic way to objectively measure the pain involved in execution. In fact, one of the drugs used in the traditional three-drug cocktail for lethal injection—pancuronium bromide—was employed to mask the body’s struggle as it descends into death; pancuronium bromide is a paralytic that keeps the offender’s body from flailing and twitching involuntarily as the body is put to death. Paralyzing the offender in this way may make the execution more palatable for observers to watch. It may also mask any errors in sedating the offender before he is killed, as was argued in Baze v. Rees.

Taking a step back, the Supreme Court has never found a particular method of execution unconstitutional. Although the Court has been continuously chipping away at the death penalty, it has done this from the directions of scrutinizing the classes of offenders that may be executed, limiting which crimes may be punished with death, and examining the procedures necessary to sentence an offender to death. In prohibiting capital punishment in some of these circumstances, the Court has looked primarily at (1) objective indicia of a consensus against a particular punishment, and (2) the Court’s own “independent judgment.”

With respect to the first consideration—the “objective indicia”—thirty-two states (plus the federal government and U.S. military) have retained the death penalty. While this does not seem to suggest that a consensus has been formed against the punishment in the United States, the Supreme Court has found such a consensus on less evidence. In Graham v. Florida, for example, the Supreme Court found that a consensus existed against imposing a sentencing of life without the possibility of parole on juvenile non-homicide offenders despite the fact that thirty-nine jurisdictions permitted the punishment for that crime. In that case, the Court focused on the fact that the punishment was relatively rarely imposed in those jurisdictions. In other cases, the Court has said that the “consistency of the direction of change” makes a difference. In Atkins v. Virginia, for example, the Court found it telling that sixteen jurisdictions had moved to prohibit executing “mentally retarded” offenders in the decade or so before Atkins was decided. In comparison, six jurisdictions have abolished capital punishment within the last eight years.

With respect to the Court’s second indicator of the constitutionality of a punishment—its own independent judgment—the Court has primarily looked to the penological purposes of punishment. This is a somewhat unpredictable and malleable inquiry, however, and the Court has also looked to factors as varied as the reliability of the evidence presented in the trial court and the risk of wrongful execution.

One distinguishing characteristic of capital punishment more generally, though, is its enshrinement in the text of the Constitution. It’s mentioned no less that four times, by reference to capital crimes and depriving someone of his life. The Supreme Court has adopted an evolving interpretation of the Eighth Amendment’s prohibition on cruel and unusual punishments, but it seems that the Court could find this textual aspect of the Constitution a difficult hurdle to overcome.