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Monday, June 29, 2015

The Machinery of Death Lives to Kill Another Day

The Supreme Court has just issued its decision in Glossip v. Gross, a petition on behalf of Oklahoma inmates along the familiar lines of tinkering with the machinery of death. After the Court found the three-drug protocol constitutional in Baze v. Rees, many executions stopped because the first drug in the trio became scarce (partly because European countries, disgusted with our retention of the death penalty, stopped exporting it.) As a solution to the problem of not being able to kill people, Oklahoma has introduced a substitute, the anesthetic Midazolam. This morning's decision sides 5:4 with the state, finding that the inmates have not proven that using Midazolam would violate the Eighth Amendment, nor shown an alternative method.

I hope that Corinna, who has blogged knowledgeably and extensively about various aspects of the decision, will chime in soon enough with interesting commentary. I just want to add a few words about the futility of this entire litigation avenue, which is based on perpetuating a farce for symbolic reasons.

As you, gentle readers, probably already know, the reason death row inmates and their attorneys have to resort to the "tinkering" line of arguments stems from the post-Gregg convention that the death penalty is constitutional in principle, and therefore there must be a constitutional way to administer it. The problem is that, in the search for such a way, we have tried and abandoned several methods. As Austin Sarat shows us in Gruesome Spectacles, there really is no good way to kill people: approximately 3% of all executions are botched. The line between an execution that "went well" and one that didn't becomes remarkably blurry with the modern, pseudomedical ways to kill people. Still, there are enough documented lethal injection cases in which things did not go as planned to remind us that, no matter how clean and medical they appear, all of these methods will essentially fail to achieve the impossible distinction between death and suffering.

But moreover, can we really say that an execution that "went as planned" is a victory? I remember telling students, who argued a version of Glossip last spring in moot court, that using the sentence "the execution was successful" was grating on my nerves (and surely of those of others who are uncomfortable with state-sanctioned killings.) You can't divorce death from suffering: death is suffering. And it is clinging to the farce that the two are separable that makes court decisions on this matter farcical as well. Today's decision complains about "activists" that have made the drug scarce--as if it is their obligation to mitigate the harm. It also finds that the inmates have not offered a better solution to the state, as if they should wrap the executioner's ax with velvet: "here, this might be more comfortable for me."

What would happen if we let go of the assertion that there must be a way to kill people? If we let go of incessant litigation about the technologies of death? If we let go of the immensely costly post-conviction mechanism in which death row attorneys, completely out of options that invoke a true fundamental conversations about the heart of the matter, have to juggle chemicals and contraptions arguing that no, this one ain't good enough, either?

(I should say: I don't fault litigators one bit for engaging in this chatter. You do what you can with what you have to zealously defend your client. The abolitionist movement contains multitudes, and it is okay to fight for one's client's life by any means necessary while others continue to tackle the death penalty itself.)

The tenor of today's decision, which clings to the moral imperative to kill people in the face of medical and scientific evidence that doing so is truly not possible without flukes and silences the truth behind the farce, that death and suffering are inseparable regardless of whether the executions is regarded as technically "botched", further supports my conclusion from the last couple of years of this, namely, that the death penalty will not, itself, be executed. It will die a slow, costly death from a chronic disease--much like the inmates at San Quentin. 

Posted by Hadar Aviram on June 29, 2015 at 11:06 AM | Permalink

Comments

Thanks very much for the generous response, Prof. Aviram. I think I may be an example of someone who has the views you say you cannot understand. I have some experience in the area of the death penalty, and I follow the literature somewhat, but I would still personally like to live in a jurisdiction that has a death penalty. Maybe I'm wrong, but that's my tentative view; I won't bore you with the reasons why, unless you'd like to know. But we do exist, and I think you can reason with us.

Posted by: Allen | Jun 30, 2015 12:10:42 AM

I think that's a fair question, Allen, and let me see if I can do it justice.

I've come to the conclusion that the philosophical Should the State Kill debate is of far less importance than how the death penalty is administered in real life. I'm perfectly willing to entertain philosophical arguments about some subcategory of folks that may or may not be "deserving" of it, a-la Hannah Arendt. I also perfectly understand victim families who look forward to an execution for closure; Werner Herzog's Into the Abyss is a great window into what the experience can do for some victims (not all of them; for some, the drawn out process is real torture). I'll even say more: I'm working on a book about the Manson family parole hearings, and the more I read the source material that precedes the murders the more I'm convinced that if there ever was a combination of crime, dangerousness, and incorrigibility that called for extreme punishment, it would be the combination in this case. But the bottom line is that, as administered in the United States, the death penalty is broken beyond repair. Even the most ardent supporter of the death penalty should be aware of the staggering number of mistakes in convictions (and probably, consequently, of executions), and there's no streamlining the process that wouldn't result in more mistakes. And even if one can somehow stomach the institutional guilt of false negatives, stomaching the price tag, especially in a recession era, strikes me as fiscally irresponsible.

Many good people who think that there are some folks in the world who "deserve" the death penalty don't know the facts. When we worked on the Prop 34 campaign in California we encountered (and tried to educate) a considerable number of people who thought the death penalty was cheaper than life without parole (it's more expensive, by $130 million per annum in CA) and that we didn't make mistakes in executing people (we do.) But the Supreme Court doesn't have that kind of excuse. In Glossip, they were educated by an amazing host of scientific opinion, only to suddenly claim that they can't stomach or understand science (which, for the reasons that Corinna discusses in her beautiful new post on Glossip, is outrageous, as well as legally inaccurate in light of Daubert). They are in an optimal position to learn facts about how the death penalty operates in practice, because those facts are provided to them in well-written briefs. And other decisions from this week indicate that, on other topics (such as, notably, solitary confinement) at least Kennedy was open to reeducation.

Different online platforms appeal to different audiences. When I write for California Correctional Crisis, I know my audience includes a combination of lawyers and laypeople; among others, my readership there includes inmates and their families, correctional staff, activists, victims and their families, and others. I think the readership here is somewhat different in that we write for a more specialized audience. Maybe that's an unfounded assumption. But my impression from the Prawfs readership is that they are largely folks who don't need to be educated about the facts. And if someone who *is* educated about the facts looks at the realities of the death penalty and honestly thinks that it is a worthwhile state expenditure to throw $130 million dollars at a lengthy and peculiar life sentence, with or without an execution at the end, and with a mountain of litigation over this or that chemical, that's a position that I find difficult to understand.

Posted by: Hadar Aviram | Jun 29, 2015 10:12:57 PM

I think that's a fair question, Allen, and let me see if I can do it justice.

I've come to the conclusion that the philosophical Should the State Kill debate is of far less importance than how the death penalty is administered in real life. I'm perfectly willing to entertain philosophical arguments about some subcategory of folks that may or may not be "deserving" of it, a-la Hannah Arendt. I also perfectly understand victim families who look forward to an execution for closure; Werner Herzog's Into the Abyss is a great window into what the experience can do for some victims (not all of them; for some, the drawn out process is real torture). I'll even say more: I'm working on a book about the Manson family parole hearings, and the more I read the source material that precedes the murders the more I'm convinced that if there ever was a combination of crime, dangerousness, and incorrigibility that called for extreme punishment, it would be the combination in this case. But the bottom line is that, as administered in the United States, the death penalty is broken beyond repair. Even the most ardent supporter of the death penalty should be aware of the staggering number of mistakes in convictions (and probably, consequently, of executions), and there's no streamlining the process that wouldn't result in more mistakes. And even if one can somehow stomach the institutional guilt of false negatives, stomaching the price tag, especially in a recession era, strikes me as fiscally irresponsible.

Many good people who think that there are some folks in the world who "deserve" the death penalty don't know the facts. When we worked on the Prop 34 campaign in California we encountered (and tried to educate) a considerable number of people who thought the death penalty was cheaper than life without parole (it's more expensive, by $130 million per annum in CA) and that we didn't make mistakes in executing people (we do.) But the Supreme Court doesn't have that kind of excuse. In Glossip, they were educated by an amazing host of scientific opinion, only to suddenly claim that they can't stomach or understand science (which, for the reasons that Corinna discusses in her beautiful new post on Glossip, is outrageous, as well as legally inaccurate in light of Daubert). They are in an optimal position to learn facts about how the death penalty operates in practice, because those facts are provided to them in well-written briefs. And other decisions from this week indicate that, on other topics (such as, notably, solitary confinement) at least Kennedy was open to reeducation.

Different online platforms appeal to different audiences. When I write for California Correctional Crisis, I know my audience includes a combination of lawyers and laypeople; among others, my readership there includes inmates and their families, correctional staff, activists, victims and their families, and others. I think the readership here is somewhat different in that we write for a more specialized audience. Maybe that's an unfounded assumption. But my impression from the Prawfs readership is that they are largely folks who don't need to be educated about the facts. And if someone who *is* educated about the facts looks at the realities of the death penalty and honestly thinks that it is a worthwhile state expenditure to throw $130 million dollars at a lengthy and peculiar life sentence, with or without an execution at the end, and with a mountain of litigation over this or that chemical, that's a position that I find difficult to understand.

Posted by: Hadar Aviram | Jun 29, 2015 10:12:49 PM

Prof. Aviram, I hope you don't mind me asking, but I have a question: Do you see the audience for your posts as including those who are undecided or who are on the other side of the debate? Or do see yourself as only addressing those who are committed to your side? I ask because you write with Scalia-esque disdain for one side of your "relentless fight." Maybe you don't care about what those who are not on your side think -- maybe they are not worthy of your respect in the first place. But a lot of your readers are either unsure of their views on capital punishment or somewhat in favor of it, I suspect you might persuade more minds if you were less one-sided and disdainful towards the other side of the argument.

Just a thought. (And feel free to delete this comment if you think it is improper.)

Posted by: Allen | Jun 29, 2015 7:46:03 PM

Not according to Justice Scalia and the rest of the pro-death folk on the court, Unconvinced. The opinions drip moralisms and ignore clear empirical evidence. Moreover, as we've just been told again (by the Chief Justice in Obergefell), the constitution is a living entity, whose interpretation changes from time to time. Maybe, as Justice Breyer argued in the minority--and as Justice Blackmun said way back when--it's time to stop the tinkering and get rid of this broken institution once and for all?

Posted by: Hadar Aviram | Jun 29, 2015 6:12:11 PM

Not according to Justice Scalia and the rest of the pro-death folk on the court, Unconvinced. The opinions drip moralisms and ignore clear empirical evidence. Moreover, as we've just been told again (by the Chief Justice in Obergefell), the constitution is a living entity, whose interpretation changes from time to time. Maybe, as Justice Breyer argued in the minority--and as Justice Blackmun said way back when--it's time to stop the tinkering and get rid of this broken institution once and for all?

Posted by: Hadar Aviram | Jun 29, 2015 6:12:04 PM

Perhaps the justices see their job not as enforcing a "moral imperative," but rather as enforcing the constitution.

Posted by: Unconvinced | Jun 29, 2015 6:03:54 PM

In most (but not all) states, and certainly in our death row in CA, which is the biggest in the country, there really isn't much difference between the death penalty and an expensive and clunky life without parole, under special costly conditions and with or without an execution at the end. As a circuit court judge found here last year, the endless process leading to the death penalty is hugely problematic.

Posted by: Hadar Aviram | Jun 29, 2015 1:44:43 PM

Long term imprisonment might be worse but does this mean we treat a select few murderers to a gift and should kill more long timers in there for non-capital offenses? Also, the prisoners themselves usually don't choose to end appeals to quicken death; some do showing the possibility.

Hadar Aviram's fight is appreciated either way.

Posted by: Joe | Jun 29, 2015 1:34:27 PM

I think that's an excellent question. And being a pragmatic incrementalist, I will begin my relentless fight against life without parole the day after the death penalty is abolished.

Posted by: Hadar Aviram | Jun 29, 2015 1:20:14 PM

What produces more suffering: lethal injection or a 50 year stint in maximum security prison?

To live is to suffer.

Posted by: justme | Jun 29, 2015 1:14:48 PM

Sotomayor's suggestion the firing squad might be better is interesting. Nitrogen gas too new for her to discuss?

Posted by: Joe | Jun 29, 2015 12:55:01 PM

I think that's a valuable philosophical distinction, Allen, but our practical experience with state-sanctioned killings is that, if there *is* a method to deliberately kill a human being that is less painful than natural death, we have certainly made massive efforts to uncover it and have been spectacularly unsuccessful. Plus, even the most merciful and painless killing follows a path of hopelessness, artifice, and expense, that makes it a peculiar and manufactured situation.

Posted by: Hadar Aviram | Jun 29, 2015 12:50:17 PM

Professor Aviram writes: "But moreover, can we really say that an execution that "went as planned" is a victory? I remember telling students, who argued a version of Glossip last spring in moot court, that using the sentence "the execution was successful" was grating on my nerves (and surely of those of others who are uncomfortable with state-sanctioned killings.) You can't divorce death from suffering: death is suffering. . . . What would happen if we let go of the assertion that there must be a way to kill people? "

Is the relevant question whether death is suffering, or is the relevant question whether death from capital punishment is more or less painful than the alternative of natural death? Even if there is no death penalty, all of us are going to die. Some of us will have the good fortune of dying quickly and painlessly. For some of us, unfortunately, our natural deaths will be long and excruciatingly painful. I'm wondering how, if at all, this should factor in to the question. For example, let's imagine, hypothetically, that there is a way of knowing that a person will suffer less pain from a death via capital punishment than they would suffer from the natural death coming some number of years later. Does it matter to the question that the state-caused death was less painful than the natural death? Or is the only question whether it imposes any suffering at all? Is the relevant question the relative one or the absolute one, and why?

Posted by: Allen | Jun 29, 2015 12:46:19 PM

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