Recently, a federal judge ruled that
California’s death penalty was
unconstitutional because of the delay
between death sentence and execution —
currently more than 20 years in California. As
a result of this decision, more than 700 of
the state’s inmates have had their death
sentences commuted to life in prison without
parole. For the 17 inmates scheduled to be
executed in California, no clear protocol
appears to exist as to how or when they will
be executed.
While District Court Judge Cormac Carney
based his ruling on the Eighth Amendment,
which prohibits cruel and unusual
punishment, he did not argue that the death
penalty itself is cruel and unusual. Rather, he
wrote that the administrative delays result in
high degrees of randomness regarding who
will be executed and when and that this
waiting game amounts to cruel and unusual
punishment. As he put it in his ruling:
Indeed, for most [death row inmates],
systemic delay has made their
execution so unlikely that the death
sentence carefully and deliberately
imposed by the jury has been quietly
transformed into one no rational jury
or legislature could ever impose: life in
prison, with the remote possibility of
death. As for the random few for
whom execution does become a
reality, they will have languished for
so long on death row that their
execution will serve no retributive or
deterrent purpose and will be
arbitrary.
Carney did not comment on whether a
quicker route to execution would be
constitutional, and his decision leaves open
the possibility that California could
streamline its process and reinstate the
death sentence. But for now, because the
California system operates like a lottery, with
little to no reason behind who may be
executed and when, all executions have been
halted.
In the absence of a moral decision by elected
officials or the public to end executions in
the U.S., the tyranny of bureaucracy —
delays, paperwork and all — might be an
anti-death-penalty advocate’s best ally.
Administrative halt
While the court decision may still be
overturned on appeal, this case, in
conjunction with the recent public kerfuffle
over the new drug combinations used for
lethal injection, suggests that the death
penalty’s days are numbered. While there’s
been no real push to end the death penalty
on moral grounds — the argument that the
death penalty is cruel and unusual per se
seems to be forestalled by current Supreme
Court jurisprudence — it will likely grind to an
administrative halt, both legally and in the
court of public opinion, precisely because
state governments cannot find a way to
carry out executions without revealing their
internal inefficiencies.
The Supreme Court previously ruled the death
penalty unconstitutional on administrative
grounds. In the 1972 Supreme Court case
Furman v. Georgia , in which the court struck
down the death penalty as it existed in the
United States at the time, Justice William J.
Brennan wrote a concurring opinion that
resonates with the rationale behind many
arguments against the death penalty.
He thought that the true problem with the
death penalty statutes were that “they treat
members of the human race as nonhumans,
as objects to be toyed with and discarded.”
He and Justice Thurgood Marshall thought
that the death penalty was, on its face,
unconstitutional, but the court majority
decided that the death penalty was
permissible as long as it was applied
consistently and without discrimination. As a
result, states rewrote their laws to add what
are usually called aggravating factors (e.g.,
planned murder, murder committed in
connection with other felonies like kidnapping
and rape) and mitigating ones (e.g., mental
state, mental illness, childhood abuse) that
juries must consider before they condemn
someone to death.
Most death penalty appeals rely on the
Eighth Amendment to the extent that Furman
and other cases have held that the death
penalty is cruel and unusual when applied to
certain classes of people: the mentally ill ,
juveniles and a disproportionate number of
racial minorities. For a long time, many anti-
death-penalty advocates and those who
represent the condemned on appeal (legal
work I have done) have argued that the
death penalty can never be fulfilled in a way
that is fair because of jury selection and
local judicial politics. The facts indicate that
people on death row in every state are
mostly poor and members of a racial
minority. A significant number are mentally
ill.
But the latest death penalty objections
present a different argument: What if the
death penalty is such a bureaucratic
nightmare that no one should be subjected to
it, least of all the tax-paying public? Here
Brennan’s language about “objects to be
toyed with” recalls the nightmare of waiting
for Veterans Administration benefits, of
people lost in endless paperwork and delay.
Today it’s easy to feel alienated and reduced
to a number in situations ranging from
renewing a driver’s license to applying for
Social Security, so the inhumanity of delay
may resonate with voters more vividly than
persuading people that convicted murderers
deserve to be kept alive. The general public
expresses little concern about those who
commit crimes as long as they are kept out
of sight.
Human playthings
Brennan’s objection to treating humans as
playthings — an essentially moral argument
— isn’t too far removed from the recent
administrative objections to last month’s
Arizona execution, in which convicted
murderer Joseph R. Wood’s lawyers appealed
his death sentence under the First
Amendment, arguing that he was entitled to
know where the drugs that would kill him
came from. Because the makers of sodium
thiopental, a drug that had been regularly
used for lethal injections, refuse to export the
drug for that purpose, states are forced to
experiment with other combinations. Wood
was ultimately executed with the Ohio two-
drug protocol: medazolam and
hydromorphone. The case bounced back and
forth, with a three-judge panel for the Ninth
Circuit agreeing that Arizona could not
execute Wood until it revealed the source of
its drugs. The Supreme Court decided that
the execution should move forward by
denying the stay of execution, with no
comment.
The unavailability of drugs previously used to
execute convicts reveals the cracks in the
seams about the death penalty — the
seeming callousness of state officials in the
face of a serious undertaking. There’s
something undeniably crude about the
reported Texas-Oklahoma football joke by the
Oklahoma assistant attorney general when
Texas asked Oklahoma for some
pentobarbital in order to carry out its
scheduled executions.
Ninth Circuit Judge Alex Kozinski even
argued that states should resort to the
guillotine or firing squads because lethal
injection was causing such administrative
nightmares. And yesterday a federal judge
extended a moratorium on executions in Ohio
until January to give the state more time to
figure out a new procedure for killing inmates
with a different combination of lethal
chemicals.
These sorts of moves stem from the same
frustration Carney expressed in his opinion.
In a technologically advanced age, why can’t
states execute inmates in a manner that
doesn’t appall so many people?
Kozinski’s argument that the lethal injection
isn’t the best method of execution resonates.
He thinks that executions shouldn’t be
“serene or beautiful.” They are — and should
be — brutal. Observers at Wood’s execution
say he took nearly two hours to die, gurgling
and gasping to the end. Some might argue
that he deserved it. But perhaps the most
chilling point of all was a state official’s
insistent denial that anything had gone
wrong.
Objecting to the death penalty on
administrative grounds rather than moral
ones appears to avoid this conundrum. No
one, especially state officials, needs to face
the brutality of government-sanctioned death
at all, and no one needs to wonder why the
death penalty has persisted in the United
States when most Western countries have
outlawed it. This may be the most logical
end to the death penalty, a way that requires
no one to admit fault.
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Write a comment
Robyn Blanpied
As the author notes, the similarities
to the VA and DMV reflect an
arbitrary, implacable system that
feeds on the people it is meant to
serve. Police brutality, immigration,
the demonization of female
reproductive control and the insertion
of religion into Law - all reflect a
lack of consistency of application of
legal rights and protections. As Marx
predicted in the 1800s, under an
unregulated capitalistic system,
everything has a price, but nothing is
valuable. They need to be brought to
heel and resume their Constitutional
role as the protector of the citizen,
not the economy.
Visit Al Jazeera English
OPINION
RICK BOWMER / AP
What if the death penalty
is such a bureaucratic
nightmare that no one
should be subjected to it,
least of all the
tax-paying public?
“
”
Jessica Pishko graduated with a J.D. from
Harvard Law School and received an M.F.A.
from Columbia University. She practiced
corporate law, specializing in securities fraud,
and represented death penalty clients and
victims of domestic abuse pro bono.
The views expressed in this article are the
author's own and do not necessarily reflect Al
Jazeera America's editorial policy.
California’s death penalty was
unconstitutional because of the delay
between death sentence and execution —
currently more than 20 years in California. As
a result of this decision, more than 700 of
the state’s inmates have had their death
sentences commuted to life in prison without
parole. For the 17 inmates scheduled to be
executed in California, no clear protocol
appears to exist as to how or when they will
be executed.
While District Court Judge Cormac Carney
based his ruling on the Eighth Amendment,
which prohibits cruel and unusual
punishment, he did not argue that the death
penalty itself is cruel and unusual. Rather, he
wrote that the administrative delays result in
high degrees of randomness regarding who
will be executed and when and that this
waiting game amounts to cruel and unusual
punishment. As he put it in his ruling:
Indeed, for most [death row inmates],
systemic delay has made their
execution so unlikely that the death
sentence carefully and deliberately
imposed by the jury has been quietly
transformed into one no rational jury
or legislature could ever impose: life in
prison, with the remote possibility of
death. As for the random few for
whom execution does become a
reality, they will have languished for
so long on death row that their
execution will serve no retributive or
deterrent purpose and will be
arbitrary.
Carney did not comment on whether a
quicker route to execution would be
constitutional, and his decision leaves open
the possibility that California could
streamline its process and reinstate the
death sentence. But for now, because the
California system operates like a lottery, with
little to no reason behind who may be
executed and when, all executions have been
halted.
In the absence of a moral decision by elected
officials or the public to end executions in
the U.S., the tyranny of bureaucracy —
delays, paperwork and all — might be an
anti-death-penalty advocate’s best ally.
Administrative halt
While the court decision may still be
overturned on appeal, this case, in
conjunction with the recent public kerfuffle
over the new drug combinations used for
lethal injection, suggests that the death
penalty’s days are numbered. While there’s
been no real push to end the death penalty
on moral grounds — the argument that the
death penalty is cruel and unusual per se
seems to be forestalled by current Supreme
Court jurisprudence — it will likely grind to an
administrative halt, both legally and in the
court of public opinion, precisely because
state governments cannot find a way to
carry out executions without revealing their
internal inefficiencies.
The Supreme Court previously ruled the death
penalty unconstitutional on administrative
grounds. In the 1972 Supreme Court case
Furman v. Georgia , in which the court struck
down the death penalty as it existed in the
United States at the time, Justice William J.
Brennan wrote a concurring opinion that
resonates with the rationale behind many
arguments against the death penalty.
He thought that the true problem with the
death penalty statutes were that “they treat
members of the human race as nonhumans,
as objects to be toyed with and discarded.”
He and Justice Thurgood Marshall thought
that the death penalty was, on its face,
unconstitutional, but the court majority
decided that the death penalty was
permissible as long as it was applied
consistently and without discrimination. As a
result, states rewrote their laws to add what
are usually called aggravating factors (e.g.,
planned murder, murder committed in
connection with other felonies like kidnapping
and rape) and mitigating ones (e.g., mental
state, mental illness, childhood abuse) that
juries must consider before they condemn
someone to death.
Most death penalty appeals rely on the
Eighth Amendment to the extent that Furman
and other cases have held that the death
penalty is cruel and unusual when applied to
certain classes of people: the mentally ill ,
juveniles and a disproportionate number of
racial minorities. For a long time, many anti-
death-penalty advocates and those who
represent the condemned on appeal (legal
work I have done) have argued that the
death penalty can never be fulfilled in a way
that is fair because of jury selection and
local judicial politics. The facts indicate that
people on death row in every state are
mostly poor and members of a racial
minority. A significant number are mentally
ill.
But the latest death penalty objections
present a different argument: What if the
death penalty is such a bureaucratic
nightmare that no one should be subjected to
it, least of all the tax-paying public? Here
Brennan’s language about “objects to be
toyed with” recalls the nightmare of waiting
for Veterans Administration benefits, of
people lost in endless paperwork and delay.
Today it’s easy to feel alienated and reduced
to a number in situations ranging from
renewing a driver’s license to applying for
Social Security, so the inhumanity of delay
may resonate with voters more vividly than
persuading people that convicted murderers
deserve to be kept alive. The general public
expresses little concern about those who
commit crimes as long as they are kept out
of sight.
Human playthings
Brennan’s objection to treating humans as
playthings — an essentially moral argument
— isn’t too far removed from the recent
administrative objections to last month’s
Arizona execution, in which convicted
murderer Joseph R. Wood’s lawyers appealed
his death sentence under the First
Amendment, arguing that he was entitled to
know where the drugs that would kill him
came from. Because the makers of sodium
thiopental, a drug that had been regularly
used for lethal injections, refuse to export the
drug for that purpose, states are forced to
experiment with other combinations. Wood
was ultimately executed with the Ohio two-
drug protocol: medazolam and
hydromorphone. The case bounced back and
forth, with a three-judge panel for the Ninth
Circuit agreeing that Arizona could not
execute Wood until it revealed the source of
its drugs. The Supreme Court decided that
the execution should move forward by
denying the stay of execution, with no
comment.
The unavailability of drugs previously used to
execute convicts reveals the cracks in the
seams about the death penalty — the
seeming callousness of state officials in the
face of a serious undertaking. There’s
something undeniably crude about the
reported Texas-Oklahoma football joke by the
Oklahoma assistant attorney general when
Texas asked Oklahoma for some
pentobarbital in order to carry out its
scheduled executions.
Ninth Circuit Judge Alex Kozinski even
argued that states should resort to the
guillotine or firing squads because lethal
injection was causing such administrative
nightmares. And yesterday a federal judge
extended a moratorium on executions in Ohio
until January to give the state more time to
figure out a new procedure for killing inmates
with a different combination of lethal
chemicals.
These sorts of moves stem from the same
frustration Carney expressed in his opinion.
In a technologically advanced age, why can’t
states execute inmates in a manner that
doesn’t appall so many people?
Kozinski’s argument that the lethal injection
isn’t the best method of execution resonates.
He thinks that executions shouldn’t be
“serene or beautiful.” They are — and should
be — brutal. Observers at Wood’s execution
say he took nearly two hours to die, gurgling
and gasping to the end. Some might argue
that he deserved it. But perhaps the most
chilling point of all was a state official’s
insistent denial that anything had gone
wrong.
Objecting to the death penalty on
administrative grounds rather than moral
ones appears to avoid this conundrum. No
one, especially state officials, needs to face
the brutality of government-sanctioned death
at all, and no one needs to wonder why the
death penalty has persisted in the United
States when most Western countries have
outlawed it. This may be the most logical
end to the death penalty, a way that requires
no one to admit fault.
SHARE THIS:
RELATED NEWS
TOPICS
Death Penalty , Law & Justice, Prison
GET EMAIL UPDATES FROM
AL JAZEERA AMERICA
Sign up for our weekly newsletter
EDITOR'S PICKS
Syria's Assad could benefit
most from renewed global push
against ISIL
Blood gold: From conflict zones
in Colombia to jewelry stores in
the US
OPINION: Beware a Pyrrhic
victory over ISIL
Minnesota probes death of
black man at hands of
Minneapolis police
Afghan refugees in Pakistan
face harassment, discrimination,
HRW says
Tweets by @jesspish
OPINION: The price of sentencing people to
prison
OPINIONS
Governments exploit Paris attacks to push
for more power
by Joshua Kopstein
Kill James Bond
by Malcolm Harris
US leaders cave to popular fear on Syrian
refugees
by Lauren Carasik
A French war on terror?
by Arthur Goldhammer
Don’t subject refugees to a religious test
by Elizabeth Shakman Hurd
START THE CONVERSATION
Write a comment
Robyn Blanpied
As the author notes, the similarities
to the VA and DMV reflect an
arbitrary, implacable system that
feeds on the people it is meant to
serve. Police brutality, immigration,
the demonization of female
reproductive control and the insertion
of religion into Law - all reflect a
lack of consistency of application of
legal rights and protections. As Marx
predicted in the 1800s, under an
unregulated capitalistic system,
everything has a price, but nothing is
valuable. They need to be brought to
heel and resume their Constitutional
role as the protector of the citizen,
not the economy.
Visit Al Jazeera English
OPINION
RICK BOWMER / AP
What if the death penalty
is such a bureaucratic
nightmare that no one
should be subjected to it,
least of all the
tax-paying public?
“
”
Jessica Pishko graduated with a J.D. from
Harvard Law School and received an M.F.A.
from Columbia University. She practiced
corporate law, specializing in securities fraud,
and represented death penalty clients and
victims of domestic abuse pro bono.
The views expressed in this article are the
author's own and do not necessarily reflect Al
Jazeera America's editorial policy.
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