June 13, 2006

The lethal injection case.

Linda Greenhouse writes about yesterday's lethal injection case, Hill v. McDonough:
The case was filed under the Civil Rights Act of 1871 [Section 1983, which] permits suits against government officials for violation of rights guaranteed by the Constitution or federal laws.

The lower federal courts dismissed the suit, however, on the ground that the only way for an inmate to challenge the method by which he is to be executed is through a petition for a writ of habeas corpus....

In his opinion for the Supreme Court on Monday, Justice Kennedy said ... that while a habeas corpus petition was the only way to challenge the constitutionality of a sentence, Mr. Hill was challenging not his "lethal injection sentence as a general matter," but only the way in which the sentence was to be carried out.
As the unanimous opinion indicates, this is the clear right answer (in a troublesome area of jurisdictional doctrine). Left for another day is the underlying question about the substance of the 8th Amendment right against cruel and unusual punishment. There the question is how well the different chemicals work. Do they really block the pain or do they only cause the subject to appear to be feeling nothing? As the article says, the Court recently turned down a case that presented the question directly and has avoided intervening in a number of executions where the issue could have been raised.

IN THE COMMENTS: This painting gets discussed:


The Drill SGT said...

So why can't they use a dose of morphine that is ten times the lethal amount?

Simon said...

IIRC, the case that they turned down was under the wing of what used to be Goldstein-Howe, the folks that run SCOTUSblog. To my recollection, Tom Goldstein made a comment at SCOTUSblog back when they filed that they thought their case was the ideal vehicle to challenge the lethal injection protocol, yet the court turned them away.

I have a feeling that at least part of the reason for the sudden outbreak of "go along to get along" on the court is because there is a feeling that the institution is in a state of flux; they have gained a new leader and a new colleague, which will change the dynamics, but I think there also has to be at least a suspicion on the court that one or two of their collegaues are eyeing the eject button in the imminent future. Thus, all sides may be - to some extent - playing for time.

Alternatively, it could really just be the Roberts effect, but I have my doubts that our Fearless Leader's position has been accurately construed.

Gahrie said...

OK..If people object to lethel injection, let us return to a form of execution that is clearly constitutional, given that it was being used before the Constiution was written, while the Constitution was written, and after the Constitution was written.

Let's just start hanging them again.

Charlie (Colorado) said...

Guillotine! Guillotine!

Seriously. If the prisoner is face down it's going to be as close to painless as it could possibly be --- no blood pressure to the brain, no spinal connection, as soon as the blade is a few cm into the neck.

The Chinese method of a bullet into the base of the brain should be pretty painless too.

Now, can someone explain to me why an execution should be expected to be completely painless?

Troy said...

The bullet or the blade -- the quickest and most effective. Listening to Kevin Federline's album is a close third.

ignacio said...

I've always been under the impression that sodium pentothal made one feel rather good. Wasn't this the original "truth serum"?

Simon said...

"Let's just start hanging them again."

I realize you're being ironic, but in point of fact, that's one of the things that makes the objection to the lethal injection protocol so ludicrous. The objection is that the chemical dosage and sequence might result in the condemned suffocating. In other words, there is a significant chance that the execution might be botched and the condemned will die of suffocation, fully aware of what's going on. Yet hanging - death by suffocation, or, once they moved to trying to break the neck, the significant risk of death by suffocation - was the principlal means of execution before, during and for almost a century after the Eighth Amendment was ratified!

I have previously argued that the electric chair may be unconstitutional, but lethal injection? No way.

Simon said...

"Listening to Kevin Federline's album is a close third."

Now that really is cruel and unusual.

Richard Dolan said...

According to Simon, "at least part of the reason for the sudden outbreak of 'go along to get along' on the court is because there is a feeling that the institution is in a state of flux..."

That strikes me as too cynical a reaction to the SCOTUS and too dismissive of the actual legal issue decided in Hill v. McDonough. The decision in Hill v. McDonough was unanimous, among other reasons, because it was the only possible result the Court could reach if one takes the text of the two statutes seriously. Section 2254 (federal habeas re state custody) deals with "an application ... in behalf of a person in custody pursuant to the judgment of a State court" where the permitted ground for the application is "that he is in custody in violation of the Constitution or laws or treaties of the United States." In contrast, Section 1983 provides a remedy whenever someone acting under color of state law deprives the complainant of a right protected or guaranteed under federal law. As the Court was at pains to point out, the issue in Hill was not the validity of the sentence imposed by a state court, or the right of the state authorities to keep Hill in "custody" pursuant to the judgment of the state court. Since the sentence imposed by a state court is the event authorizing the state prison warden to maintain any felon in custody, habeas cases uniformly challenge the legality of the sentence. Here the state court's sentence directed that Hill be executed according to law, but the method of execution is itself something that the state court neither directs nor controls. Thus, both as a matter of form and substance, the object of Hill's suit did not fit within the parameters of the relief that a federal habeas court is empowered to grant.

Instead, Hill claimed that the method of execution deprived him of rights guaranteed by the Eighth Amendment. Assuming that Hill proves his claim, a federal court can easily grant relief within the usual range of remedies permitted under Section 1983.

As the NYT article is at pains to point out, the lower courts never reached the merits of Hill's claim; instead the case was dismissed on jurisdictional grounds. Hill had sued under Section 1983, but the lower courts dismissed his case because they held that Hill's claim could only be brought as a habeas petition subject to all of the many statutory limitations that apply to habeas cases. Hill did not and could not meet those habeas standards.

In rejecting that holding, the Court reached an obviously correct result that, at its root, gave force to the differences between the relief available under the habeas statute and Section 1983. There was nothing surprising about that result, nor anything that requires or warrants cynical speculation that the driving force here was "really" some internal political calculus by various members of the Court.

The only interesting part of the decision -- and the part that is likely to have real impact going forward -- was at the very end of Kennedy's opinion (Part III), where he addresses the standards to be applied by a court presented with a Section 1983 claim. As Kennedy makes clear, a federal court acts well within its discretion in denying a stay, and thus permitting an execution to go forward, if the state prisoner has delayed in bringing the petition until the eve of execution (as is frequently the case) or if any other equitable considerations warrant the denial of a stay. Those standards apply even if the court finds that the prisoner's Section 1983 claim on the merits is potentially meritorious. That is a pretty direct warning to those engaged in defending state prisoners under sentence of death not to engage in the kind of tactical gamesmanship that has often characterized death penalty litigation.

Perhaps I shouldn't be surprised that the really significant aspect of the Court's decision has gotten considerably less play than the more sensational issues -- whether lethal injection violates the Eighth Amendment -- that the Court never even addressed.

Jeff said...

We're really down to splitting hairs when we consider the relative cruelty of lethal injection vs. the electric chair. It just goes to show how far from real cruelty we have come.

The Drill SGT said...

LOL Jeff,

I was in Bruges Belgium 6 months ago looking at some of those Flemish masters. There was a painting of a city father who was found guilty of fraud or abuse of office.

They flayed him alive and hung his skin above the seat of the guy's replacement. The painting was a tripograph (3 screen display)

Come a ways in defining cruel and unusual in the last 500 years

Elizabeth said...

They flayed him alive and hung his skin above the seat of the guy's replacement.

I particularly like that element: the new guy had clear criteria to meet. I propose we offer less deference and respect to our own public servants, and make our expectations more overt. No heads on pikes, of course, but maybe a video feed from the federal pen cells of their predecessors.

37383938393839383938383 said...

I've never understood the evolving standards stuff. The "cruel" part obviously refers to particularly bad punishments, and the evoloving standards of cruelty make sense there. But it seems that the "unusual" part of the cruel and unusual clause is really meant to protect individuals from being singled out, i.e., you can't rip out Person X's tongue if every other criminal just has to pay a fine for the same crime. If lethal injection isn't cruel, then so long as it is uniformly applied, I don't see how it could be unusual.

The Drill SGT said...

In the paintings,

Panel 1 was the before. City court, petioners seeking things, bribes being taken, etc.

Panel 2 was the flaying. Arab looking guys with Turbins, and sharp knives working on the Councilor (alive). Musculature shown as the skin came off.

Panel 3 was the after. City court, cleaned up as it were with a new Boss, the flayed skin, and much less corruption.

The interesting thing was that, these guys were going after "Cruel and Unusual" as a way of making the crime and punishment memorable. They brought in experts (arabs in turbins) to make sure that the job was done professionally, and that the guilty lived as long as possible.

We obviously changed between 1550 and 1750. interesting. Perhaps it was Cromwell (his over the top methods) that helped wean our lesser natures away from some of those excesses.

Simon said...

"We're really down to splitting hairs when we consider the relative cruelty of lethal injection vs. the electric chair."

If you looked at my reasoning for why the electric chair may be unconstitutional, which I linked to, you would understand why I cannot agree that it is splitting hairs.

For that matter, even if you disagree with my reasoning, I find it an astonishing concept that the electric chair is (for all purposes of use other than Eighth Amendment analysis) no more cruel than lethal injection, and I would suggest that the mere fact that the latter has entirely subsumed the former in actual practise is demonstrative of this much.

Richard Dolan said...

As for the paintings in Bruges, the Drill Sgt is referring to work by Gerard David. I remember seeing those paintings some 35 years ago, and they were unforgettable.

Since David's usual subject matter was religious (lots of madonnas with child), his paintings of justice 15th Century style have gotten less than rave reviews over time. One reviewer comments: "Among his more important works is the pair commissioned by the town of Bruges, The Judgment of Cambyses and The Flaying of Sisamnes (1498, Bruges, Groeningemuseum). These are gruesome, admonitory paintings, warning of the retribution ensuing from corruption and injustice, subjects perhaps not best suited to David's placid style."

I'm all for "warning of the retribution ensuing from corruption and injustice," but flaying a person alive, as David depicts, is an easy case under the Eighth Amendment.

Simon said...

"We obviously changed between 1550 and 1750. interesting. Perhaps it was Cromwell (his over the top methods) that helped wean our lesser natures away from some of those excesses."

In England, treason was punished with either hanging, drawing and quartering, or the "more humane" method, used for women, of burning at the stake, until it was abolished by (coincidentally but almost contemporaneously to) the passage of the Eighth Amendment in 1790. Certainly, use declined after the restoration, but it was still far from unheard of.

One thing I've noticed, though, is that none of the materials I've seen have indicated that the colonists imported the more barbaric English methods of execution. Although there are some exceptional cases, particularly associated with mob justice (for example, one of the victims of the Salem Witch Trials was executed by pressing), for the most part, my research suggests that execution in 18th Century America was overwhelmingly by hanging, a fact which should naturally inform the interpretaion of the Eighth Amendment's injunction on cruel and unusual. Even if you take the most stringently narrow, Scalian originalist view - and I do not - it does not follow that the Eighth Amendment prohibits only those punishments known to the colonists. For example, because the British civilization of India did not begin in ernest until after America had already declared independence, it isn't clear to me that the colonists would have been aware that the predominant method of capital punishment in India, viz., the crushing of the condemned by elephant (starting, only if the victim was lucky enough to recieve clemency, with their head), but it is certainly clear to me that this would have been cruel and unusual punishment in 1791, and hence today. Likewise, if execution by electrocution can be analogized (in terms of the physical mechanism of death) to burning at the stake or boiling in oil, both of which would have been considered cruel and unusual in 1791, it seems to stand to reason that it, too, would be unconstitutional. Lethal injection, however, can really only be analogized to poisoning, or, as alleged in the instant case, suffocation, neither of which would have been considered cruel and unusual in 1791.

The Drill SGT said...

Very good Richard.

It was the Groeningemuseum, and that was the painting. Was I wrong about it being a multi-panel or painting set? I could swear that I remember an image of the successor. You have a better memory of it after 35 years than I do after 35 weeks.

BTW: I highly recommend Bruges over Brussels.

Bruges: Beautiful old town, great art, wonderful food, nice friendly people. everything within walking distance.

Brussels: Headquarters of a growing massive politico/bureaucratic class. expensive, all the visitors are on expense accounts and the price schemes reflect that.

The Drill SGT said...


As I recall, at least British noble/royals guilty of treason met the headsman on the green of the Tower of London

Simon said...

I didn't mean to confine my comments only to the Hill case, and I agree with your discussion of it (excepting your apparent surprise at part III, which I see as little more than re-iterating what was already made clear in Nelson, and clarifying that this case does not modify that framework). Nor did I mean to assert that this IS what is happening. My point was simply that this term has seen consensus in cases that we would scarcely have believed it possible in just a year ago. Surely, all will recall that when cert was granted in Ayotte, the skies darkened with smoke from the dark Satanic mills and foundries wherein NOW and NARAL began forging anew battleaxes and swords, in anticipation of the final armageddon, the great battle to come, the imminent overturn of the holy writ of Roe. Yet, in the final event, Ayotte ended with a narrow and unanimous opinion that both Ginsburg and Scalia were willing to not only join, but silently join. I can believe that its unaminity might have been achieved by our Fearless Leader's insistence on a narrow ruling, but I find it harder to believe that Scalia, in particular, would have kept quiet had this case ben decided a year earlier. Hence, my suspicion that the court is in a state of flux, and perhaps half-anticipating a retirement from Justice Stevens or Justice Souter. Obviously, one cannot know, but that's my suspicion.

The Drill SGT said...

OK, I found the painting.


a 2 panel set and I was wrong about the turbans. What I had imagined was a thrid panel with the successor was actually part of the second panel

The Drill SGT said...


It appears that the city fathers had your sort of forward thinking in 1500. No Video though then.

David's first paintings probably date from the years between 1480 and 1484. They reflect a Dutch influence in his early training. Soon after he arrived in Bruges, however, in 1487 and 1488, the municipal authorities requested him to paint a series of panels for the deputy burgomaster's room in the town hall. This major commission took the form of a large diptych that was first mentioned in the city archives as a Last Judgement, but which in fact depicts The Judgement of Cambyses. The subject is taken from Herodotus: the judge Sisamnes, who had been guilty of prevarication, was arrested and punished by Cambyses, the King of Persia. For his crimes, Sisamnes was condemned to be flayed alive. David represents this scene with a cold and exemplary cruelty. Like the paintings Dieric Bouts made for the town hall in Louvain, David's panels were intended as a stern warning to judges against the temptation of corruption.

Simon said...

Re the painting and the punishment it depicts: the human capacity (and indeed, apparent proclivity) for barbarity rarely fails to be physically sickening.

The Drill SGT said...


That's the way to draw a crowd and qxxxo here to what otherwise was a civil conversation.

Richard Dolan said...

I certainly agree with Simon that unanimity or near-unanimity is more frequently the reality in SCOTUS decisions today than commentary in the MSM and elsewhere would suggest. The simplistic divisions between supposedly "liberal" and "conservative" justices on the Court give a really false picture of what is going on. To a remarkable extent, the members of the Court today are in broad agreement on a wide range of issues. I also agree that a focus on addressing only the narrowest issue necessary to decide the case is much more likely to result in unanimity or near-unanimity. I have no way of determining whether the justices are writing more narrowly focused opinions than was the norm 30 years ago because the Court is in "flux," as Simon surmises (which, if true, suggests that broader opinions await the formation of a solid ideological majority). I certainly hope that the actual explanation is that the justices view narrower rulings deciding only what is necessary as the better jurisprudential course, regardless of what they may want to do for other, perhaps more ideological reasons. But who knows.

As for the short section of Kennedy's decision addressing the standards for issuing a stay, I also agree that there was nothing new or surprising there as well. The Court has been trying to shut down gamesmanship in death penalty litigation for at least 20 years (e.g., Rose v. Lundy of many years ago); has issued all kinds of detailed procedural rulings intended to make such gamesmanship extremely costly to a state prisoner sentenced to death; and has seen Congress adopt detailed and stringent restrictions on federal habeas relief, particularly in capital cases, all to the same end. The SCOTUS has also summarily reversed courts (especially the Ninth Circuit) that have often stretched to find a federally-based reason to stop an execution of state prisoner. On all of that I suspect we are in agreement.

What struck me about the commentary on the Hill case in particular, and about commentary on SCOTUS decisions more generally, was the desire by so many to ignore what the Court actually decided, and get into the often sensational and controversial issues that the Court just as often wisely found a way to sidestep. At the same time, the commentary brushed aside entirely the portion of the Hill decision that will have real impact in capital cases -- first and foremost, the clear direction to the lower courts to be very demanding in assessing a request for a stay of execution, even if the lower court thinks the issue presented by the case is meritorious. While Kennedy's opinion does not break new ground on that point, it is a remarkably blunt and sharp reminder that a stay of execution is far from automatic in a Section 1983 case and is bound to have immediate consequences in capital cases. In a far more literal sense than denial of class certification in a putative class action, denial of a stay of execution in a capital case will often literally be the "death knell" of the underlying action (as well as the plaintiff bringing it). In that sense, I think there was a real "forest and trees" quality to the commentary on Hill.

Standing back a bit from all of those issues, the larger point is that where the still litigable issues are down to the details of the method of execution, you know that the entire string in death penalty challenges is getting pretty much played out. If that's where death penalty litigation is today, then I suspect that a lot of felons on death row in state prisons should start planning on meeting their Maker sooner than they may wish.

I didn't see much of that in the MSM commentary on Hill (or even House, the second death penalty decided on the same day by a 5-3 court). But perhaps I am missing something here that others see.

chuck b. said...
This comment has been removed by a blog administrator.
chuck b. said...

No jokes about "reinventing the wheel"?

Bissage said...

chuck b.: Frankly, I never thought it much of a selling point.

Jay said...

The basic argument is bogus. Pentothal [pentobarbital] in adequate dosage induces a deep enough coma so that the apneustic center in the brain is turned off and the patient stops breathing because the coma is so deep. The idea that apnea would occur during consciousness with pentothal is outside of any experience or reasonable expectation that I know of. If you are not in deep coma, you don't stop breathing from barbiturates. That's why doctors who commit suicide commonly use it. It's an easy death. Curare-like agents do paralyze breathing during consciousness, but they would not logically be used in lethal injection executions without pentothal or another barbiturate.

David said...

I've donated blood many times, and also donated platelets, which takes over an hour and some degree of pumping to make the blood flow. No doubt this decision is correct legally, but from a common sense POV it's offensive. I think millions of blood donors have suffered more than would these condemned killers.

I wish the death row inmates whose executions are being held up pending a lethal injection decision would be taken out and shot. After all, they're supposed to be executed. If one means is of questionable Consitutionality, let's use another method and get the job done.