Big Lizards:Blog:Entry “The World Turned Rightside Up”

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December 17, 2006

The World Turned Rightside Up

Hatched by Dafydd

You will all recall -- as I'm certain you've memorized every Big Lizards post by now -- and if you haven't, how do you expect to pass? -- that we earlier blogged about the stunning instance of Clinton appointee Judge James Robertson, the judge who got the Hamdan case rolling in the first place, throwing out the sequel on the grounds that, according to the Military Commissions Act of 2006, the federal courts no longer had jurisdiction over enemy-combatant detainees.

In other words, doing the right thing according to the principle of judicial restraint. It was the world turned upside-down!

Well, the world has righted itself: for now, another different Clinton judge, U.S. District Judge Jeremy Fogel ("the old Fogel," we called him back in February) has used the flimsiest of excuses to find California's (and nearly every other state's) method of execution, lethal injection, "unconstitutional." Fogel held that it violated the Eighth Amendment stricture that "cruel and unusual punishments [shall not be] inflicted."

We previously covered this same case in a number of posts:

If I Should Ouch Before I Die

Michael Morales Dead Pool

Doctors Overturn Death Penalty

The Old Fogel Has Gotten His Wish

The verdict was expected, natch; back in February, the judge did everything but send spam-mail to the media explaining how he was going to rule, no matter what the evidence.

If you want a detailed analysis of just what's wrong with the judge's decision, you should read Patterico; he's one of those lawyer types, and he can give you all the particulars. But I'm here to give you the view of the ordinary guy who doesn't have the right to write "Esq." after his name (except in the Dutchy of Occulisia, where I'm actually a Peer of the Realm).

So to boil down a nutshell, the judge held that lethal injection was "cruel and unusual" because of the theoretical possibility that some condemned murderer may ouch before he dies:

Today, Fogel said "anomalies in six execution logs raise substantial questions" about whether some inmates "may have been conscious when" the second or third drugs were injected.

Fogel said that "substantial questions" had been raised by the records of previous executions in the state and that the California Department of Corrections' "actions and failure to act have resulted in an undue and unnecessary risk of an 8th Amendment violation."

That is, we don't really know whether it actually happened, but it's just possible that some prisoners might have felt some pain during their executions, in the few minutes before they died.

Actually, it's even worse. The judge tried to conceal his ill-shaped and gargantuan agenda behind a veneer of reasonability by saying that the state could skate -- if they would only adhere to a few simple protocols during executions (from our previous post, The Old Fogel Has Gotten His Wish, linked above):

In the last installment, the court-appointed anesthesiologists point-blank refused to participate in the execution.

The only other option Fogel allowed was to execute Morales by an untried, unapproved overdose of barbiturates. The state planned to do just that before the execution order expired Tuesday at midnight... however, Judge Fogel (a Clinton appointee) then added a new twist: even that lethal overdose must be administered by a doctor, nurse, or medical technician, lest it cause Morales pain:

Prison officials had planned to press forward with the execution Tuesday night using the second option. The judge approved that decision, but said the sedative must be administered in the execution chamber by a person who is licensed by the state to inject medications intravenously. That group would include doctors, nurses and other medical technicians.

To everyone's great and unexpected shock (including Judge Fogel, I'm sure) no such medical personnel were willing to inject the drug. This might have something to do with the fact that the AMA, the American Society of Anesthesiologists, the California Medical Association, and the various professional national and state organizations of nurses and medical technicians all oppose capital punishment -- and have all declared participation by their members in executions to be "unethical," which could lead to the member being subject to disciplinary actions including the loss of his medical license.

What a beautiful Catch-22! The judge says that lethal injection is perfectly all right -- but only if a doctor or other medical professional administers it... knowing that no medical professional would dare do so for fear of having his license yanked. But hey, it's not Judge Fogel's fault; it's not like he set the rules. (Oh, wait, he did; I mean, it's not like he set the rules of the AMA).

Back to the L.A. Times article. This is an odds-on favorite for an issue-analysis Oscar in the category of "Sounds vague but is in fact meaningless":

The ruling means that it is unlikely that there will be any executions in the state in the near future. It was issued shortly after Florida Gov. Jeb Bush declared a halt to executions there in the aftermath of a botched lethal injection execution this week.

The two actions represented a dramatic development in the long-running battle over capital punishment in the U.S. Just a year ago, even the most vociferous opponents of the death penalty would not have expected challenges to lethal injection procedures to have gained such gravity. But the challenges have resulted in stays of execution around the country.

We are to believe that it never occurred to "opponents of the death penalty" that filing for stays of execution around the country -- and judge-shopping for like-minded jurists -- might result in those stays being granted.

Of course, the California Supreme Court did manage to overturn all 61 executions but one during the tenure of Chief Justice Rose Bird (which tenure ended when she and two of her cronies were forcibly removed by California voters); and more recently, after the Ninth Circus Court of Appeals delayed one killer's execution so many times that the U.S. Supreme Court actually issued an injunction against any further stays.

A reasonable person might conclude that you can always find a federal judge who will weep at the sad fate of a mass murderer.

Thus, in this case, the Time's phrase "challenges... have gained such gravity" -- which evokes an image of the entire country collectively drawing breath and consulting its conscience, in light of staggering new evidence -- merely means a single, anti-capital-punishment judge in California made a stupid ruling that has to be dealt with... before the rest of us can get on with the business of ushering the lawless breed out of this world.

Shouldn't take long.

Hatched by Dafydd on this day, December 17, 2006, at the time of 3:34 AM

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Comments

The following hissed in response by: nk

Both opponents and supporters of the death penalty should shudder at such rulings. The discussion at Patterico's took a ghoulish turn about execution methods but, in my view, it is not the method which primarily makes a death sentence "cruel and unusual". (Well, sure, we don't want torture and mutilation.) The death penalty is at its most "cruel and unusual" when it is imposed (or not imposed) not according to the rule of law but at the whim of one man.

The above hissed in response by: nk at December 17, 2006 5:02 AM

The following hissed in response by: Cowgirl

Brilliant Dafydd! You have once again created order out of chaos.

The above hissed in response by: Cowgirl at December 17, 2006 7:26 AM

The following hissed in response by: DrMalaka

Why not execute prisoners the same way they killed their victims? If judges think that it is so important to take the convicts past/family/upbringing and such into account when deciding whether execution is appropriate then one would reasonably think that it is important to take his beliefs into account on how to administer the death penalty.

The above hissed in response by: DrMalaka at December 17, 2006 7:39 AM

The following hissed in response by: Bill Faith

Linked.

The above hissed in response by: Bill Faith at December 17, 2006 9:54 AM

The following hissed in response by: hunter

If this is the new standard, then we need to release all convictes from prison. Prison is full of unusual and cruel (by this Judge's standard) punishments.
Additionally, all doctors, medical labs, and hospitals will need to stop the use of IV's or needles. They may hurt, and sometimes even pierce a vein. That's gotta hurt!
Call me a lawyer: Healthcare violted my civil rights.
This Judge is deomnstrating such a lack of judicial temprement and ability as to raise doubts if he can properly carry out the law.
He needs to go, and this case needs to be dismissed with prejudice.

The above hissed in response by: hunter at December 18, 2006 11:44 AM

The following hissed in response by: KarmiCommunist

... before the rest of us can get on with the business of ushering the lawless breed out of this world.

You had me interested in what you were saying...up until the above point. In my humble Low and Ignorant Insane swamp hermit opinion, humans are by nature a “lawless breed”, especially whilst having to live under sooooooooooo many Manmade Laws, and with some humans deciding which laws deserve more punishment than the breaking of other laws. Basically, if a Law is actually needed, then it should be able to fit into a small and similar sentencing guideline...say, like 10 years to the Death Penalty (25 years to the Death Penalty works better for me, but i would settle for a minimum of 10 years). Example 1: If the Traffic Law, Speeding, is worth having as a law, then violators should be sentenced to a minimum of 10 years in Prison, and the same goes for jaywalkers, spitting on the sidewalk, walking on the wrong side of a sidewalk, etc. Example 2: Shoplifting and cheating on taxes should receive the same sentence as a burglary...perhaps cheating on taxes should actually fall into the same category as Armed Robbery, since it’s been said that the “pen is mightier than the sword”. Think a minimum of 10 years in Prison for breaking any law...so to speak of the human "lawless breed".

If you want a detailed analysis of just what's wrong with the judge's decision, you should read Patterico;

Both of you do a good job, but Patterico is a lawyerly type, and thusly a tad too longwinded for most of us. Though he did a masterful job of exposing the weaknesses of Judge Fogel. i shall expound on those and other weaknesses:

1) Eighth Amendment - Further Guarantees in Criminal Cases - Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

(Er, excuse humble me, but what’s not “cruel and unusual” about sticking any living ‘Thang in a cage, and separating that ‘Thang from sexual and intimate contact with that ‘Thang’s opposite sex?!?)

2) Patterico points out that Judge Fogel "complains about matters as trivial as the sufficiency of the lighting used in the execution chamber, and the type of paper used to record the EKG tracings. He also appears to find constitutional significance in matters such as whether any of the team leaders suffer from post-traumatic stress syndrome, or whether they have been disciplined for things like smuggling illegal drugs into the prison.

(Lighting in US jails and US Prisons improved a lot between 1975 and 1996...trust me; however, lighting improvement seems rather minor when you are the #4 Inmate placed into a “9 by 7” (closer to 8.6’ by 6.6’ when construction is actually finished) cell. Long story there, but #4 gets his mattress pad placed right at the “Sh*t-Jacket” (a combo of a toilet and sink, but one drinks from the sink or dies of thirst)...up against, and centered on it. BTW, if you ever end up as a #4, then i suggest that you place your head up against the bars, and your foots about the “Sh*t-Jacket”. BTW, why are jail guards and/or Prison Guards allowed to work in jails or Prisons if they “suffer from post-traumatic stress syndrome” or/and “have been disciplined for things like smuggling illegal drugs into the prison”?!? Forget them having a job in the “execution chamber”, but why are they even allowed to work in any Corrections System!!! How does one get 4 humans into an 8.6’ by 6.6’ cell??? Experimenting and practice from ‘Da “Box”...so to speak of a smaller area with more humans in it.)

3) Nevermind the rest...

Any human wishing to spend the rest of their life in a cell deserves to die...call it a mercy killing, and put them out of their misery (i don't care if it's a 'Grandma' who hit a cop for giving her a jaywalking ticket).

KårmiÇømmünîs†

The above hissed in response by: KarmiCommunist at December 18, 2006 5:15 PM