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Saturday, December 16, 2006

Lethal injections and the twitching, hyperactive Eighth Amendment

Saturday's WaPo reports that lethal injections as a capital punishment method are "on hold" in two states — California and Florida. It's a fact-filled article with a somewhat misleading lede:

Executions by lethal injection were suspended in Florida and ordered revamped in California on Friday, as the chemical method once billed as a more humane way of killing the condemned came under mounting scrutiny over the pain it may cause.

As the rest of the article reveals, that's a fair description of what's been going on in California, but not in Florida.

The concern in Florida arises from the botched placement of the IV line through which the lethal drugs were to be injected in a single execution: Instead of going into a vein as intended (whence they would have rapidly circulated throughout his body), the needle through which the chemical mix was pumped went into "the tissues of his arm" (presumably muscle tissues), which in turn required a second injection to induce the subject's death. This happens with unfortunate frequency at hospitals, clinics, and blood banks — it's just "a bad stick," and it reflects either (a) a bad technician, or (b) an unlucky attempt by a good technician, or (c) unusually difficult to locate and pierce veins, or (d) a very dull needle. (And a good one would have promptly realized that he missed the vein.) So there may be reason for Florida to examine whether it needs more capable people performing the lethal injection. But as Gov. Jeb Bush's quoted comments make reasonably clear, I don't think Florida is considering abandoning lethal injection, much less the death penalty generally.

The California situation, by contrast, is much more interesting because it's a direct challenge to the intended technique by which lethal injections are carried out in more than 30 states, including Texas. I haven't read the latest opinion from the San Jose-based federal judge in California that's based on the evidentiary hearings he's conducted [update: I've done so now, see below], but here's the WaPo description:

In the California case, attorneys for condemned murderer Michael A. Morales had argued that because inmates are paralyzed by the drugs, witnesses cannot be sure the convicts are unconscious when they are executed — meaning they may be in terrible pain. The court agreed in February and ordered corrections officials to either stop using the two drugs or provide doctors to ensure Morales was unconscious.

Two anesthesiologists agreed to observe, and Morales's execution was underway when, in a last-minute decision, the doctors backed out after an appeals court ruled they would have to step in if anything went wrong.

Since then, U.S. District Judge Jeremy D.] Fogel has held extensive hearings on how executions are conducted.

He ultimately found that executioners were not properly trained and made mistakes in administering the drugs and that California's execution chamber is poorly suited to its purpose.

The state's "implementation of lethal injection is broken, but it can be fixed," Fogel wrote.

The Houston Chronicle adds to the WaPo story with this bit of local information:

The announcements out of Florida and California bear no weight in Texas, according to Robert Black, spokesman for Gov. Rick Perry.

"Perry has no plans to announce a moratorium on the death penalty and executions," Black said Friday. "He believes it is administered fairly, justly and in accordance with the law."

Texas by far leads the nation in the number of executions carried out since the death penalty was reinstated in 1977. This year, 24 Texas inmates have been put to death.


In trying to figure out what this all means, it's very important to distinguish between the various issues being raised.

It appears, for example, that in both California and Florida, there are concerns as to how capable the executioners are. That's an issue that's been a subject of more than passing interest for centuries — the best headsmen being prized for their ability to behead with a single blow, the scarcity of such headsmen leading to Dr. Guillotine's invention, and so forth. In crude terms I've lifted from products liability law, this could be likened to a "manufacturing defect" — and I suppose death penalty opponents who liken Texas in particular to a "death factory" might find that apt.

There's a separate question in California and elsewhere, however, as to whether the design of the procedure — even if performed skillfully and exactly as intended — is appropriate. That might be likened to the products liability concept of a "design defect."

(In products liability law, the engineers' placement and materials specifications for the Ford Pinto gas tank might be an example of a design defect. If, however, someone at the Ford plant forgot to fasten more than one of the four bolts intended to secure the gas tank as originally designed, causing the gas tank to detach and blow up after the car was driven 1300 miles, then that would be a manufacturing defect, one that typically would not affect all or even most Pinto buyers but only the unlucky buyer of that particular car. But if gas tanks need to be secured by twelve bolts and four is not enough to make gas tanks sufficiently safe for their intended use ("sufficiently" being a flexible standard that takes into account utility, cost, risks, etc.), then the lack of twelve bolts on the plans would be a design defect. Is it the guy with the drafting table and blueprints, or the guy with the power wrench that caused the problem? Catch on?)

For reasons of social policy, there are perfectly good reasons why responsible citizens should want to see these issues addressed. We ought to have capable, professional executioners. We ought to have procedures that — consistent with the reasons why lethal injection was adopted in the first place — are well-calculated to uniformly cause death without torture (i.e., the deliberate infliction of pain before death).

The California case in particular also raises questions of professional ethics. It's inappropriate to trivialize, for example, the concerns that a physician may have about administering lethal injections — and that, for at least some physicians and medical ethicists, is an issue not merely with capital punishment but with "assisted suicides" (a/k/a euthanasia). But there's no reason in principle why a system cannot be designed in which physicians', pharmacists', and or other scientists' input has been gathered and considered, but yet the actual performance of the execution is done by well-trained personnel who are not subject to those professions' ethical restraints.

All those questions are distinct, however, from the constitutional issue of whether lethal injection in particular, or the death penalty generally, constitutes "cruel and unusual punishment" across the board. You would have a very hard time persuading me, for example, that the California judge's concerns about the "suitability" of California's execution chambers could rise to a constitutional level unless they're akin to an Iron Maiden; that they may be cheerless and without lovely wallpaper, that the table may not be well-padded, or so forth ought not be of any constitutional significance whatsoever. The WaPo story has this quote:

"This demonstrates that there is no happy and kind and nice way to execute someone," said David Elliot, a spokesman for the National Coalition to Abolish the Death Penalty. "Execution is a messy business."

There's a guy who's never heard of a morphine or heroin overdose, I guess. But it's also a guy who's badly confused on the basic issues, because capital punishment isn't meant to be "happy and kind and nice." Capital murderers have uniformly not been "happy and kind and nice."

Unfortunately, recent Supreme Court precedents on what constitutes "evolving standards of decency" — the Court's touchstone for deciding what constitutes violations of the Eighth Amendment's prohibition against "cruel and unusual punishments" — are themselves cruel jokes. "Evolution" is not an appropriate term for a mushy standard that's flipped back and forth in a matter of a few years rather than over decades — as did the "constitutionality" of executing 17-year olds between Stanford v. Kentucky in 1989 and Roper v. Simmons in 2005. Even if you're an Al Gore-like proponent of a "living and breathing Constitution," you ought not be arguing that the Constitution is twitching and hyperactive.

I'd read the Eighth Amendment to permit any execution technique that isn't designed to cause, or administered so poorly as to in fact routinely cause, a temporally significant\note1/ amount of torture before death. Lethal injection, hanging, firing squads, the guillotine, the electric chair — properly designed and professionally applied, each of those methods produces instant death. (I'm less persuaded about the gas chamber, from what I know of it.)

Thus, I have no problem with commissions studying ways to handle the "design" and "manufacturing defect" problems, and ditto for the ethical problems.

But it's clear to me that whatever any commission or study concludes, the solution to the constitutional question begins at the White House, with its next stop being the floor of the United States Senate.


Update (Sat Dec 16 @ 7:00 am): My friend Patterico has read the California opinion, and offers a brief preliminary comment that he's "not impressed." He promises a more in-depth treatment soon, and I'm keenly interested to see his take.

I've skimmed the opinion, and my initial impression is that the rulings it makes and the relief it orders aren't very consistent with the supposedly settled law it relies upon.

I've certainly seen lots, lots worse as far as wild and unrestrained judicial activism goes. And on close reading, it's clear that Judge Fogel's concern is, for the most part, with whether the actual set-up as typically used in California executions will reliably and verifiably ensure that subjects are indeed rendered unconscious before the lethal (and potentially very painful) chemicals are administered. In other words, using the terminology I offered above, he's looking at what he perceives to be design defects that would apply to all executions, and not mainly at manufacturing defects (deviations from what the system's designers intended).

But in a couple of instances, he seems to be trying to phrase manufacturing defects in terms that will make them into design defects — as, for example, when he criticizes the "screening of execution team members" on grounds that seem to me to be mostly particular to specific individuals, without any showing of even a theoretical or likely connection between those grounds and an actual failure of the system to work as intended.

Judge Fogel quite correctly says early in his opinion (citations omitted) that "binding precedent holds that the Eighth Amendment prohibits only 'the unnecessary and wanton infliction of pain,' and procedures that create an 'unnecessary risk' that such pain will be inflicted." But then he proceeds to make himself a micro-manager of the California prison system's procedures by interpreting "unnecessary risk" to the broadest extent imaginable.

I don't think, for example, that the Eighth Amendment requires the State of California to use graph paper instead of plain paper for their electrocardiogram (EKG) tracings — even if one can hypothesize that graph paper would be somewhat more helpful in trying to decide, after the fact, from a  particular subject's heart rate that he was or wasn't thoroughly anesthetized. If I were a California warden, or even a California legislator, might I think graph paper ought to be specified? Sure. But does the Eighth Amendment constitutionality of an entire execution system really turn on the difference between graph paper and plain paper in the machine that goes beep?

Or is the lighting in the death chamber really a matter that rises to constitutional import? 60 watt bulb — unconstitutional; 100 watt bulb — constitutional? Is that what the drafters of the Eighth Amendment intended? Or is that even what "evolving standards of decency" require? Surely even a living, breathing Constitution would sneeze at that question!

Bottom line: I'm not outraged — California can indeed probably address all of the picky points that Judge Fogel has raised, and Judge Fogel certainly didn't try to declare lethal injections, even with the current chemical mixtures intended to be used, as being always unconstitutional. And I'm sure he's a smart guy, and he certainly does appear to have worked hard to gather information — including by holding hearings at San Quentin. If his opinion were merely a report of recommendations to the California prison system, or if he was a person within that system responsible for reviewing its policies, procedures, and facilities, it would be fine. But as an example of proper application of constitutional principles to the big-picture subjects to which they ought to be applied, I'm not impressed with this opinion either.

And Judge Fogel probably could have achieved the exact same effect — that is, causing a series of small changes in the California system that collectively would probably improve it — by writing an opinion that simply cataloged the perceived deficiencies, thus high-lighting them for the press and for likely legislative or administrative correction. He didn't need to cloak each of the individual nit-picks with constitutional significance. And he certainly ought not have.


\note1/  "Temporally significant" perhaps ought to be defined for this purpose as "the longest amount of time the killer spent in killing any of his victims." But I'd settle for a bright-line (if admittedly arbitrary) standard as short as 10 seconds, so long as it didn't change every time the Constitution (or Justice Kennedy) breathes.

Posted by Beldar at 03:04 AM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Lethal injections and the twitching, hyperactive Eighth Amendment and sent a trackback ping are listed here:

» An Analysis of Judge Fogels Memorandum of Intended Decision Regarding Californias Lethal Injection Protocol from Patterico's Pontifications

Tracked on Dec 16, 2006 5:09:56 PM

» More on the California lethal injection case from BeldarBlog

Tracked on Dec 16, 2006 11:16:13 PM

» Botched execution causes Fla. to suspended all from Bill's Bites

Tracked on Dec 17, 2006 12:09:02 PM


(1) Francis made the following comment | Dec 16, 2006 4:57:03 AM | Permalink

Patterico had a link to a piece describing an execution in California. The execution chamber doesn't appear to have anything particularly bad in it.

As far as death goes. I can see that blood spurting all over the place and/or screams of agony would discommode the witnesses but I can't see why we should care about the feelings of the person being executed. I think it's a good idea that (s)he die relatively painlessly and relatively quickly but if there is 10 seconds or even a couple of minutes of pain I can't see this as a big deal.

It seems to me that guaranteed painless, fast deaths tend to involve the swift destruction of the brain (e.g. crushing the skull, the iron maiden, the guillotine) but these also tend to be messy so we are always going to have a problem here.

I'm not an American or even a legal scholar so my take on this is probably wrong but the prohibition of "cruel and unusual punishments" always seemed to me to be banning torture and the more gruesome forms of execution such as hanging, drawing and quartering (or to bring it up to date - Saddam's shredder) rather than worrying about whether a convicted criminal spends the last minute or so of his life in agony or not.

(2) Beldar made the following comment | Dec 16, 2006 6:54:15 AM | Permalink

Thanks, Francis. There are lots and lots of comments on that particular Patterico post, a couple of them from me in fact.

(3) Ric Locke made the following comment | Dec 16, 2006 8:00:07 AM | Permalink

My suggestion is that, in cases of capital murder (which is what most executions are for), the prisoner be executed by the same method he/she used on the victim.

Such might be "cruel", but it seems to me difficult to call it "unusual" if the prisoner considers it useful and appropriate, and the standard requires both.


(4) kimsch made the following comment | Dec 16, 2006 9:28:19 AM | Permalink

Ric, executing the prisoner in the same manner he/she executed his/her victim may sound good on the surface but what about the executioner?

Let's use the recent case of the guy high on crack cocaine who stabbed his drug dealer 80 times with a samurai sword and then set the drug dealer on fire. Would you really want to inflict that on the executioner? Make the executioner stab the guy 80 times with a samurai sword and set him on fire?

Or beat the prisoner to death if that's the way the prisoner killed the victim?

(5) Kent G. Budge made the following comment | Dec 16, 2006 10:33:53 AM | Permalink

Francis is right. If we are serious about making execution as instantaneous and painless as possible, we will wrap ten pounds of RDX around the murderer's skull and make sure a competent expert in explosives sets the squibs. The murderer will never know what hit him, as guaranteed as humans can make such things.

This form of execution would, however, be rather hard on the witnesses and executioner.

I am inclined to put humanity above sensibility, but only within reasonable limits. Lethal injection strikes me as a very sensible compromise.

Personally, I'd rather people didn't kill each other at all. But the murderer doesn't seem very sensitive to my feelings in the matter. T'aint a perfect world. Get used to it.

(6) Ric Locke made the following comment | Dec 16, 2006 5:18:59 PM | Permalink

kimsch, I would be a little dubious about the moral character of someone who was willing to do that sort of thing regularly. Perhaps the way to do it is to choose executioners by lot. If so chosen, I would grit my teeth and perform as required.

Far too many of the objections I see boil down to a lack of willingness to get dirty fingernails, even by proxy -- fastidiousness rather than a moral issue. There are a whole host of things that have to be done to keep our civilization and society running that are dirty and indelicate, from the eponymous employee of the slaughterhouse to cleaning s**t off the public thoroughfares. Refusing to do them because they offend your sensibilities is not a moral objection, it's an elitist pose. Not wanting to do the garbage collector's job is reasonable. Treating him as a pariah, an untouchable, because he has to handle used tampons and condoms is neither just nor moral.

The primary reason for my proposed reform is to remind people of why the execution is happening in the first place. All the debate is, as usual, about the comfort and convenience of the schmuck being executed. The result is that capital punishment is seen as an absolute good, so long as it's done by low-lifes like Angel Diaz in the course of their depredations, and the snobs don't have to buy in to their responsibilities as citizens.


(7) kimsch made the following comment | Dec 16, 2006 6:36:58 PM | Permalink

Ric, I was more worried about putting an executioner through something like that as the executioner presumably wouldn't have a murderer's mindset. I don't' believe that a murderer should have any more or special rights than your average Joe has. A murderer is due no more courtesy or deference than anybody else and is most likely due less, but definitely no more.

I would not want to be responsible for making an executioner replicate the crime that got the murderer a death sentence. Two wrongs do not make a right.

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