Cert. Petition in Lethal Injection Case
We are filing this cert. petition today in Abdur’Rahman v. Bredesen, which challenges the constitutionality of Tennessee’s lethal injection protocol. While the Court has been bombarded with a number of lethal injection cases of late, we believe that if the Court is inclined to consider the issue this one is an especially appropriate case for the Court’s review, for a couple of reasons. First, unlike most of the other cases that have sought Supreme Court review, this case is not an eve-of-execution challenge and presents a very well-developed record. Second, the case is not complicated by procedural questions such as whether the challenge to the protocol is a second or successive habeas petition; rather, Abdur’Rahman’s state-law right to bring this federal constitutional claim is uncontested.
Our co-counsel on the brief (and the attorneys responsible for the well-developed record) are Bradley MacLean of Nashville’s Stites & Harbison and Bill Redick. Three of our students — Matt Cooper, Nicholas Degani, and Tim Smith — from the winter term class that we taught at Harvard this year worked extensively on the case.
That petition is quite good. I’d just like to point out, for your benefit, that the mere fact the states all use pentothal is proof of the deliberate indifference. The reason is that pentothal is nowhere near the strongest barbiturate that could be used. Secobarbital (the strongest) and pentobarbital (second strongest) would be infinitely more apt to being used as a drug to cause death. The only reason why the states don’t use an injection of secobarbital is because deep down death penalty advocates do not want to cause a painless death, they want to make sure that the procedure is painful and horrifying because they believe that makes it a deterrent. “The state has an interst in ensuring its death penalty procedure is adequately painful and torturous to make it an effective deterrent” is truly the bottom line. If the states really wanted to ensure a quick and painless death, a lethal injection of a strong schedule II opioid would be more than enough, by itself, to accomplish that. Combine a strong opioid with secobarbital and you’d doubly ensure no 8th Amendment complaints. But those drugs are schedule II controlled substances for a reason–they’re highly euphoric. A lethal dose of heroin would likewise foster no complaints about cruelty; however I’d bet death penalty advocates would actually think this would be a “reward” for murder and would incite people into killing so as to get the death penalty. Seriously, that’s what they’d argue. Someone should try to subpoena government records that show why they chose pentothal (a weaker barbiturate) over secobarbital (the strongest barbiturate). Might make for some interesting reading, especially with respect to deliberate indifference.
Comment by BruceM — February 19, 2006 @ 7:33 pm
I’m sure that Abdur’Rahman’s attorneys will be rushing to make that argument–namely, that pentothal is evidence of deliberate indifference. And I’m sure that serious attorneys committed to victory on this front have better things to do than to pore over government records looking for someone who said, yeah, let’s have lethal injection, and let’s make it painful.
It never ceases to amaze me how worked up people who oppose killing killers can get. No matter what one’s views of capital punishment are–it seems that venomous statements such as BruceM’s post say more about the speaker than capital punishment.
Comment by federalist — February 20, 2006 @ 2:15 pm
I think the petition looks great. I would just add that there is case support, not just intuitive support, for the proposition that causing death by prolonged suffocation is an Eighth Amendment violation, those being the Ninth Circuit’s vacated opinion in Fiero and its opinion in Campbell, the Washington hanging protocol case.
Federalist, I don’t know what is or isn’t in the various files around the country, but given Tuskegee, forced sterilization, etc., my view is that there’s nothing more terrifying than a bureaucrat in a lab coat. “I didn’t know,” “I didn’t mean to” or “I didn’t think” are not acceptable explanations given the simple cause and effect at issue here. We would not accept such explanations from our children in comparable circumstances.
Comment by Steven Lubliner — February 22, 2006 @ 1:05 pm
I think my comment was to the cost-benefit analysis of poring over government records to try to prove up some idea that the government is deliberately trying to torture people. Given that the adoption of lethal injection had the purpose of making executions more humane, I think it unlikely that you’ll find a whole lot of “let’s torture the bastards” sentiment. But you’re welcome to try.
Perhaps you ought to come down off your high horse. The hyperbolic language about being terrified of bureaucrats in lab coats and Tuskegee experiments is silly. If you want to venture of the reservation of legal argument, fine. In a rough justice sense, Morales, Tookie and all of the other miscreants who find themselves on the business end of the “big jab” really do not deserve all the time, energy and money being spent to save the poor dears from a few minutes (at most) of pain.
Comment by federalist — February 22, 2006 @ 2:39 pm
No need to dig through records. Just ask anyone who attended the committee hearings as the lethal injection bills moved through the various state legislatures.
In the California hearing, the proponents of capital punishment were in favor of the change to what everyone then believed (and most still do) was the less painful method. It was death penalty opponent John Burton who mused that maybe his side should vote to keep it painful in order to make it repellent to the public (although, if I recall correctly, he did ultimately vote for it).
Comment by Kent Scheidegger — February 22, 2006 @ 3:16 pm
On a mundane level, having been a crime victim and having not cared for it, I am certainly concerned about shotguns and hammers in the hands of the mentally ill, drug-addled and desperate. Bureaucrats in lab coats is more of a nightmare scenario. However, cruelty inflicted on the disempowered in the name of reason and science is not something I made up for a rhetorical flourish.
Even if ensuring a humane execution was the initial goal (as opposed to just changing the terms of the debate with a new process that could not be successfully challenged for years), the evidence is mounting that the goal is not being met. The states know this just as surely as the asbestos companies knew and the tobacco companies knew before the truth came out in litigation. Plus, the administration of Pavulon simply can’t be squared with the desire to ensure a humane execution. The protocol is easily summed up with a term often favored by conservatives: junk science.
As for time better spent, finally, we agree. Too much time and money is spent trying to kill people and trying to save them. Both sides often pat themselves on the back too much for the righteousness of their positions. Let’s call the whole thing off.
But allow me one last back pat. My colleagues and I would happily give up the highest hourly component of our income if the death penalty was abolished in California. (We would certainly give up the working for free part, which happens all too often.) Let’s not forget that the death penalty in California feeds a billion dollar bureaucracy that, like all bureaucracies seeks to perpetuate itself. It is open to attack as an expensive “feel good” public program, just as surely as the California Arts Council or Clinton’s national service program were.
Comment by Steven Lubliner — February 22, 2006 @ 3:37 pm
When Michael Morales strangled Terri Winchell with a belt, bashed her head in with a hammer, raped her, and stabbed her with a knife, who was “disempowered”? Him or her?
Comment by Kent Scheidegger — February 22, 2006 @ 4:00 pm
Obviously, Ron and Nicole got the worst of that exchange. . . . Oops, wrong case. The L.A. D.A. didn’t seek the death penalty against O.J. (multiple murder, lying in wait) out of concern that asking the jury to kill someone they recognized as a flesh and blood human being would make it harder to first obtain a conviction.
I wouldn’t criticize Terri Winchell’s family if they wanted to personally kill Morales every day and twice on Sundays. However, I don’t believe that the first principle of criminal justice policy can be gratifying the wishes of the victims. (It certainly wasn’t in the Stephen Anderson case, where the victim’s family unanimously opposed the execution and did not attend.) I also don’t believe that we all somehow stand in the emotional shoes of the victims when we make policy.
We need to spend our time and money minimizing the conditons under which crime flourishes. Killing Morales and having a death penalty for murder may make us feel that the world is an orderly place, but do you really believe that it will stop the next drunk, PCP-stuffed disenfranchised thug from acting on his worst impulses?
Comment by Steven Lubliner — February 22, 2006 @ 5:40 pm
I’m not quite sure what Steven’s last comment is addressing. It has no apparent relevance to my point, in response to his “disempowered” comment, that murderers are the oppressors rather than the oppressed.
Do I believe that a death penalty that is actually enforced will deter some portion of the cold, calculated, premeditated murders such as this one that would be committed in the absence or the death penalty or the failure to enforce it? Yes, I do, and there is a large and growing body of empirical evidence to support that common-sense conclusion.
With deterrence, we can never identify the specific people who were saved by the existence of an enforced death penalty or killed by the lack of one, but they are very real nonetheless, and their lives are worth saving.
For further reading, I recommend the Sunstein and Vermeule essay.
Comment by Kent Scheidegger — February 22, 2006 @ 7:35 pm
“Obviously Ron and Nicole got the worst of that exchange”. Nice. Thanks for the insight, Sherlock. That glibness is juvenile. Why don’t you try to meet Kent’s point head on, instead of spouting vapid, off-putting non-sequiturs?
As for the irrelevant comments about the victims’ point of view in the justice system, well, we do, I think, to a certain extent ask what a hypothetical victim would want when we establish our criminal law.
As for your question about whether the death penalty deters drunk, PCP-laden thugs like Morales, maybe it does and maybe it doesn’t, but the issue is not whether the death penalty would deter Morales-like criminals, but whether some class of criminals would be deterred by the death penalty. If the studies Kent cites are to be believed, then there is a cost in blood of not having a death penalty or the outright hostility to the death penalty shown by some courts, particularly those in the Ninth Circuit.
I like how you threw in the “disenfranchised” tag for Morales. I guess you couldn’t justify the word, “disempowered”, so you had to use another word to imply that Morales was a victim. Sophistry, pure sophistry.
Comment by federalist — February 22, 2006 @ 7:55 pm
I thought I met it directly by pointing out the disparity of treatment in the OJ case despite the similarity to the Morales crime. I’ll try again.
When I was ten, two friends and I ventured onto the fringes of a poorer neighborhood on our bikes. A group of bigger black kids knocked us off our bikes and took them. In that transaction, I was certainly the oppressed. However, I doubt that those kids ever had the same investment in society that I did and the same incentives not to throw their opportunities away by violating the law.
One of the more moving stories that I heard on this score involved a black death row inmate. His attorney or investigator came across an elementary school picture full of young smiling innocent black faces. His team did the legwork and discovered that every single little boy in that picture grew up to have a record.
I would happily read the Sunstein article, but I can’t open it. I’ve certainly seen studies suggesting that when states adopt the death penalty, the homicide rate actually went up. Morales committed his crime in 1981, just four years after the death penalty had been reinstated when it could not be said that California had a tradition of not enforcing capital punishment.
I find it hard to believe that there’s a class of rational criminal who would not be deterred from killing by LWOP or 25 to life. I suppose the comeback is that there’s a class of criminal that views prison culture as an extension of the street criminal culture. My response to that is that such a person has had a very sad life.
Speaking of essays, I recall an essay excerpt from criminl law to the effect that it is rational to have a capital punishment system that executes 10 innocent people as long as we are comfortable that the law has deterred 11 murders. I found that chilling.
Comment by Steven Lubliner — February 22, 2006 @ 11:54 pm
Met what directly? Kent’s point was that Winchell was the “disempowered” person, not Morales. And, then what, you point to Ron and Nicole in a glib and offensive manner. Oh, I guess that because OJ was famous and Morales wasn’t the fact that the death penalty was sought for Morales and not for OJ meant that Morales was “disempowered”. Forgive us all for not seeing the connection there.
Comment by federalist — February 23, 2006 @ 9:05 am
Met what directly? Kent’s point was that Winchell was the “disempowered” person, not Morales. And, then what, you point to Ron and Nicole in a glib and offensive manner. Oh, I guess that because OJ was famous and Morales wasn’t the fact that the death penalty was sought for Morales and not for OJ meant that Morales was “disempowered”. Forgive us all for not seeing the connection there.
Comment by federalist — February 23, 2006 @ 9:10 am
Met what directly? Kent’s point was that Winchell was the “disempowered” person, not Morales. And, then what, you point to Ron and Nicole in a glib and offensive manner. Oh, I guess that because OJ was famous and Morales wasn’t the fact that the death penalty was sought for Morales and not for OJ meant that Morales was “disempowered”. Forgive us all for not seeing the connection there.
Comment by federalist — February 23, 2006 @ 9:16 am
Met what directly? Kent’s point was that Winchell was the “disempowered” person, not Morales. And, then what, you point to Ron and Nicole in a glib and offensive manner. Oh, I guess that because OJ was famous and Morales wasn’t the fact that the death penalty was sought for Morales and not for OJ meant that Morales was “disempowered”. Forgive us all for not seeing the connection there.
Comment by federalist — February 23, 2006 @ 9:19 am
I’m not sure how much that is a rejoinder rather than merely a response. It’s not so much a denial that there are such people as a disparagement of them; it seems to me that there are indeed such a class of people, and that they do indeed have very sad lives. They’re called “petty thugs” and “street criminals”, and it seems to me that we have a LOT of them in America. “Your honor, my client leads a very sad life” is hardly a defense.
I would think a more attractive point for you to make would be that, even if “LWOP or 25 to life” lacks deterrent effect, arguably, so does the death penalty. We’re talking about street criminals who don’t exactly plan ahead; if it takes twenty years to execute a person, that’s no real deterrent effect. But of course, there is no particular reason to conclude that the death penalty is imposed purely for its deterrent effect, and I suppose the logic of the “it takes too long” suffers from the same flaw as the “the prisoner might suffer because of too little anathetic” argument: there is an equally valid but (from a certain point of view) less attractive solution to that “problem.”
Comment by Simon — February 23, 2006 @ 9:59 am
Kent: Do I believe that a death penalty that is actually enforced will deter some portion of the cold, calculated, premeditated murders such as this one that would be committed in the absence or the death penalty or the failure to enforce it? Yes, I do, and there is a large and growing body of empirical evidence to support that common-sense conclusion.
Really curious about this. Death penalty cases are too few and far too magnified to draw any general conclusions regarding increased penalties acting as a deterrent; general crime statistics for lesser offenses such as weapons and controlled substances might paint a better picture. Unfortunately (from the standpoint of making this argument) they do not offer stakes that are high enough with which to judge.
If a drug dealer knows he is facing 20+ years if he is convicted, imposition of LWOP for an additional weapons charge is simply the price of doing business. He gets caught, he goes down anyway. If he is awaiting trial and has a chance at killing a CI and perhaps derailing his trial, he will likely risk it, even in states (and in federal cases) that will impose a death penalty.
I’m not so sure that it is common sense. You and I might agree with that since we are educated and (presumably) have a certain level of societal commitment. There is a considerable element that is less enfranchised, and simply does not care. Should we care that we are executing people who do not care? Where is the deterrent in that?
Remarks here by you and others seem to suggest that as long as we can deter one murder with capital punishment, it should remain law. I can see that, but the terrible cost of imposing death sentences, the risk of getting it wrong, and the ludicrous delays in carrying them out argue that the death penalty is not effective. This leads to the “fix-it” argument, which I can’t pursue today.
Federalist brought up the victim’s point of view: “…we do, I think, to a certain extent ask what a hypothetical victim would want when we establish our criminal law.” Keep in mind there are several victims here, not just the person assaulted, but their friends, neighbors, and family, and society in general. Which standard should apply? Those who are affected the most? How can a victim be relied upon to decide the penalty? The results would be horribly unequal.
I also point to the Moussaoui case in which the government is making it convenient for families of victims of 9/11 to attend the penalty phase of the trial. The reason given is closure. However, Moussaoui had limited role in or knowledge of the plan to pilot an airliner into the Pentagon. Prosection contends that he failed to act on this knowledge and thus should suffer the ultimate penalty. How is execution of Moussaoui any closure for someone who lost a family member at the Pentagon? It’s like the defendant who would have been guilty of something else anyway.
Finally, I’d like to hear something about capital punishment in Europe, where it is largely outlawed. What makes the United States so fundamentally different? The Second Amendment? NRA would argue that weapons in the hands of responsible gun owners is a deterrent, so that should make us safer, and obviate capital punishment. Is it our violent history? If so, accepting that argument keeps us chained to our past and doomed to continue repeating the same mistakes.
Sorry for the long post; thank you for your indulgence.
..Jeff
Comment by 14th Amendment — February 23, 2006 @ 11:11 am
Simon,
I think we agree about deterrence, the fact that criminals do not think ahead, and that the death penalty is unlikely to deter murder where long sentences do not.
Yes, there are a lot of street criminals. (None of my clients, even the gang members, have ever been just as happy in prison.) Of the relevant penological theories, I prefer incapacitation/rehabilitation. So, yes, “my client has had a very sad life” is not a defense to guilt. It is, however, relevant to disposition in capital, non-capital and juvenile cases. It should also be relevant for purposes of social policy and criminal justice policy. We should approach criminal justice issues with humility and sadness and avoid the temptation of the moral high ground.
Comment by Steven Lubliner — February 23, 2006 @ 12:57 pm
14A, you have asked a number of question that it would take a very long post to adequately answer. Since this thread has gotten long in the tooth, I’ll just give the short answer that, in my opinion, both you and Steven underestimate the mental capacity and free will of persons of so-called “low socioeconomic status.” A person with a deprived upbringing is not an animal. Putting aside for the moment people with psychotic disorders (a whole topic in itself), people who commit crimes of violence choose to commit them, are capable of not committing them, and are responsible for the consequences of committing them.
Comment by Kent Scheidegger — February 23, 2006 @ 5:06 pm
Kent: “A person with a deprived upbringing is not an animal.”
I am actually shocked you read this into my remarks. I did not mean to suggest this at all. But I think you’re also right, the thread has wandered a bit, and should be left here.
Comment by 14th Amendment — February 24, 2006 @ 9:33 am
On March 8, the Pacific News Service filed a First Amendment challenge to the use of pancuronium bromide, which it is seeking to consolidate with the Morales litigation. PNS is represented by the ACLU and Keker & Van Nest.
So we’ll see.
Comment by Steven Lubliner — March 11, 2006 @ 7:54 pm
Sorry to see that cert. was denied.
Comment by Steven Lubliner — May 22, 2006 @ 2:29 pm