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Saturday, December 16, 2006

More on the California lethal injection case

Further to my post from the wee-small-hours last night about the decision of U.S. District Judge Fogel in the California lethal injection case: The promised post from Patterico analyzing the decision is here, and here, from yesterday, is Prof. Kerr's briefer post as well. And readers have left interesting comments on both posts.

Patterico read the opinion with a commendably closer eye to its procedural nuances than I did. I think he's absolutely right that Judge Fogel did, in effect, shift the burden onto California to prove that its execution procedures are constitutional, and that he drew impermissible inferences from the absence of certain evidence to suggest what that evidence might have been (always in a way that favored the opponents of California's system). The overall impression, when studied with more care than I gave the opinion on my first pass-through, is that Judge Fogel was in a rush to push certain changes to be made in the system — he thinks he'd make a pretty good prison reformer, which is fine, but he also thinks he is one, which isn't. He's a federal judge in a constitutional system in which the federal government's powers, including the federal judiciary's powers, are supposed to be limited. But he wouldn't let either procedural niceties (like who had the burden of proof) nor substantive law (like whether something does or doesn't violate the Eighth Amendment) get in the way of his result.

Patterico also had one strong reaction to the opinion that didn't strike me on my first pass. He's critical of the opinion for being written with an eye to being quoted in the media, basically on grounds that federal judges have no business making their opinions into a bully pulpit for anything. My initial reaction, by contrast, was that Judge Fogel could have made his critique of the California system, thus probably prompting reactive changes by the California prison administrators or legislature, without needing to go so far as holding that his criticisms were constitutional violations.

I suppose that I'm jaded, because on reflection, Patterico's clearly right: Opinions ought to be written to explain rulings to the litigants and to reviewing appellate courts, not as press releases or think-tank-like "white papers." I guess I'd already given up on that idealistic point of view, even if it's an ideal worth fighting to maintain, simply because I've seen so many other federal judges (and not all of them on the liberal political side) whose legal opinions have smacked more of punditry than of law.

And the fundamental problem with this ruling and this opinion is indeed that Judge Fogel has undertaken the roles of pundit, commentator, social worker, and prison administrator. Whether he's good or not in those roles isn't the point. And when he tries to undertake them, he trivializes, and worse, he fails to perform in, his real job — applying and defending the Constitution.

Posted by Beldar at 11:12 PM in Law (2006 & earlier) | Permalink


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Tracked on Dec 17, 2006 12:13:04 PM


(1) DRJ made the following comment | Dec 17, 2006 12:49:27 AM | Permalink

From afar, Judge Fogel sounds like Judge William Wayne Justice.

(2) Mark L made the following comment | Dec 17, 2006 8:24:11 AM | Permalink

Only one cure for that type of judicial activism -- impeachement. Even if you do not convict, he has to answer the charges. As the old saying goes, "You can beat the rap, but you cannot beat the ride."

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