Monday, 12 May 2008

Spinning Baze for lower courts

From the BLOG Sentencing Law and Policy :

Spinning Baze for lower courts

Elisabeth Semel has this new piece in The National Law Journal, headlined "Fearing too much justice," which tries its darnedest to argue that Baze should be viewed by lower courts and state officials not as a green light for resuming lethal injection executions, but rather as a yellow light calling for additional caution and inquiry concerning modern execution realities:

Chief Justice John G. Roberts Jr.'s plurality opinion establishes that the court is primarily concerned with whether states are able to successfully administer the first drug in the three-drug formula — the anesthetic. Failure of that first drug results in a "constitutionally unacceptable" risk of suffocation and excruciating pain. On the limited facts before the court, Roberts took the view that delivery of the anesthetic is a relatively simple endeavor. But in other states, where courts have allowed full inquiry into lethal injection protocols, it has become apparent that getting the first dose "right" is not a simple matter.....

The plurality opinion in Baze may succeed — as Roberts intended — in precluding stays of execution when the demonstration of substantial risk is not greater than that presented by the Kentucky record.... [But] if courts allow discovery of execution records and depositions of executioners, outcomes will be different than they were in Baze. They may well resemble the result in Tennessee, where a federal district judge found that "due to lack of training and other issues," the state's "new protocol poses a substantial risk" that the inmate "will not be unconscious when the second and third drugs are administered." Or trial courts may find, as did a federal judge in California, that the record, "is replete with evidence that in actual practice the [state's protocol] does not function as intended."

Judicial fear of too much litigation, too much inquiry and too much truth about how the death penalty operates is a familiar one. In 1987, in McCleskey v. Kemp, the court held that a reliable statistical study showing the likelihood that racial prejudice influences Georgia capital sentencing decisions could not be used to establish race discrimination in the decision to sentence Warren McCleskey to death. The majority opinion, authored by Justice Lewis Powell, made much, as did Roberts' opinion, of the constitutional legitimacy of capital punishment and of federalism. Central to the ruling, however, was the concern that "McCleskey's claim, taken to its logical conclusion," would instigate challenges to discrimination at every level of the criminal justice system. Dissenting, Justice William J. Brennan Jr. responded that the fear of "apocalyptic consequences" was, rather, "a fear of too much justice," and the fact that the death penalty was the legislatively adopted norm in most states was unpersuasive given the issues at stake: "death and race."

It was scrutiny that the majority in McCleskey feared. It is scrutiny that some members of the current Supreme Court fear. It is certainly scrutiny that departments of corrections fear. In 1991, Powell stated that if he could change his vote in any case it would be the one he cast 14 years earlier in McCleskey. If trial courts allow discovery to go forward in lethal injection challenges, we will not have to wait 14 years for some justices to reconsider what went wrong in Baze.

Actually, I think that what some members of the current Supreme Court truly fear is what Semel and other death penalty opponents often seem eager to seek: the de facto elimination of the death penalty through persistent constitutional litigation rather than de jure reform through the democratic process. The fear is not of too much justice, but of too much persistent effort by death penalty abolitionists to achieve through the courts what they have not been achieve through the ballot box.

I do not begrudge sincere efforts by death penalty opponents to argue forcefully against state killing (just as I do not begrudge other sincere "culture of life" advocacy against abortion and doctor-assisted suicide). I am, however, consistently troubled when death penalty abolitionist advocacy is directed so forcefully toward courts rather than at politicians and the public.

Some related post-Baze posts:

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