Know Your Executioner


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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52 Responses

  1. There’s a reason his face is always well-hidden.Report

  2. Avatar Christopher Carr says:

    I think we should have the governor of the state that administers the execution actually be the one to do it, and the President in the case of federal crimes, that way Rick Perry would have been able to put his money where his mouth is and prove to the world that he’s not the distant, tough-talking coward that I suspect most Southern conservative politicians are.

    That being out of the way, I’m not against the death penalty in principle but in practice; the biggest problem for me is with how we’ve disowned the seriousness with which we ought to take the death penalty with sanitized language and detached, bureaucratic procedure. If you’ve read my comments on other posts this week, you’ll find that the death penalty isn’t the only topic about which I feel this way. When we take a life, the most serious thing we could do, we should use as unsanitized, visceral, and real language as possible to describe it, in order to fully appreciate the seriousness of what we’re doing.

    Also, I’m curious, I always read these stories about convicted murderers given the death penalty waiting thirty years on death row or whatever. Has anyone ever considered that there is a right to swift execution? Do we owe those convicted as well as society that? It seems like having someone wallow in bureaucratic hell is a waste of court and public resources, grossly unfair, and a prolonging of what we have already determined to be justice.Report

    • I think we should have the governor of the state that administers the execution actually be the one to do it, and the President in the case of federal crimes…

      If we have to have the death penalty, which I oppose, I favor inert-gas asphyxiation for exactly this reason. No medical training required, anyone can do it so long as the prisoner is mildly restrained. Heck, for a while you could buy do-it-yourself kits on the Internet — a plastic bag with a pull string to tighten it, a tank of helium with a pressure regulator, and some plastic tubing. My preference would be that the prosecutor who seeks the death penalty should be the one who does the deed.Report

    • Then any given election becomes a referendum on the death penalty as well. The candidate who says “I will not pull the lever on old sparky, because we just don’t know!” will be going up against the guy who says “I will pull the lever on Dylann Storm Roof and I will look him in the eyes as I do so.”

      Reporters will ask questions like “Seriously? You wouldn’t even pull the lever for Dylann Storm Roof?” during the debates.

      Maybe the society has changed since the Bush-Dukakis debate. Maybe it has changed enough that the anti-death penalty guy would win the election.

      But I rather expect to hear explanations like “we had to field a candidate who supported the death penalty because we wanted to win the election and do the good that we could do until the culture changed” if we institute this policy.Report

    • It seems like having someone wallow in bureaucratic hell is a waste of court and public resources, grossly unfair, and a prolonging of what we have already determined to be justice.

      Fans of expediting the death penalty and speeding it up have adopted the slogan “Justice delayed is justice denied!”Report

    • Avatar Kolohe in reply to Christopher Carr says:

      I think a great many people running for office would have no problem with Ned Stark rules. They would actively boast about it in campaign ads.Report

  3. Avatar LWA says:

    While one part of me thinks it would be good to force us all to view and own an execution, there is a part of me that recalls the history of how public executions were a favored afternoon entertainment.

    In the current political climate I suspect that candidates would fall all over each other trying to conjure up the most sadistic torture possible.Report

  4. Avatar Francis says:

    As always very interesting but it could use a proofread. What was done to the mother and daughter? verb missing.

    Accomplice, to me, generally connotes an individual who is not the principal perpetrator. Since the juvenile apparently committed the rapes and murders, I would characterize the juvenile as the principal and Mr West as the accomplice. And since he’s facing the death penalty, I think it would be helpful to know what specific acts the State eventually proved that he did commit.

    Your lead-in is a little misleading in that you state that question is “whether a condemned prisoner has the right to know the identity of and speak with his own executioner”. But the actual question is whether the prisoner’s counsel has that right. This is one of the rare cases (national security being the other area that immediately comes to mind) where the attorney gets to learn certain information but is barred from conveying it to his client.

    Facial vs as-applied challenges are one of those legal niceties that drive me crazy. Was this a strategic decision by counsel to file a facial challenge only, waiting to bring the as-applied challenge once the execution date is set and the execution team selected? That seems a very risky move, because the State may now have an argument that the prisoner has waived the argument by not bringing it in the earlier litigation.

    Putting aside my bias against the death penalty, what an incredible waste of judicial resources to leave the as-applied challenge for a second round of litigation. But wasting time is precisely what the plaintiffs want to do. (It’s the rare area of litigation where the plaintiff wants the judicial system to move as slowly as possible.)

    Substantively, the State created this problem by medicalizing the execution. We’ve gone from the hangman to the firing squad to the electrician to now a nurse? The guillotine might be incredibly gross, but it would seem to me (based on no research whatsoever) quick and fool-proof.

    (I lived in France for a while when I was young. I have a distant memory of watching a movie loosely based on the life of one of the last people executed by guillotine. The movie ended on the execution scene. There were three executioners, two to drag the man (who was tied to a chair) to the device, and one to loose the rope that held up the blade. Since I saw that movie something like 35 years ago, one can see that it made quite an impression.)Report

    • Avatar Burt Likko in reply to Francis says:

      Fixed the grammar; of course the mother and daughter were killed as we are discussing murder.

      I believe the current fashionable proposal is nitrogen gas — it’s supposed to put the subject to sleep through gradual oxygen loss and then suffocate him while he sleeps. As with all supposedly humane forms of execution, my response to that is, “What could possibly go wrong?”Report

      • There’s an obvious risk of deadly nitrogen gas escaping into the atmosphere.Report

      • What kinds of values of “go wrong” are you wondering about? I’m on your side about the death penalty, counselor, but consider these points.

        Cruel? The Air Force studies hypoxia as a normal job risk; there is a small chance of convulsions after loss of consciousness, but this is apparently quite rare. The safety materials and training classes for handling nitrogen — I went through a training class for a summer job — harp, over and over and over that other than perhaps a bit of dizziness, there are no symptoms before you pass out. This is the reason that, in terms of annual deaths, nitrogen is the most dangerous industrial gas around. They’ve had plenty of chances to interview survivors; it doesn’t hurt.

        Reliability? Put a pulse-ox sensor on them; 30 minutes with no pulse and blood-oxygen below X and they are dead. Period. No chance of error.

        Availability? Pick a metro area — you can go buy tanks of dry nitrogen or cryo containers of liquid nitrogen. It’s too necessary an industrial gas to think about it ever not being on the market. I mentioned a summer job — we were a State of Nebraska facility and bought many tanks every summer. Worst case, someone like me knows enough to buy off-the-shelf stuff and seperate nitrogen in adequate quantities.

        Mechanical reliability? The standards are ridiculously low. Standard practice is never transport liquid nitrogen by elevator. If you have to, practice is to use an elevator that you can block out intermediate destinations, put the container in the elevator at the starting floor, let the car go to the destination with no people in it, remove the container. The integrity of an elevator car is more than good enough for a nitrogen-asphyxiation gas chamber.

        Inert-gas asphyxiation is closer to quick, painless, and fail-safe than anything in use today. I hate to write this, but part of me was hoping that the SCOTUS would push Oklahoma into using it so that those facts were demonstrated.Report

  5. Avatar Will Truman says:

    This post is good, but incomplete without this music video:


  6. Avatar notme says:

    This is why I enjoy mocking liberals about the death penalty. They pursue spurious claims then complain that the death penalty is bad b/c it takes too long and is expensive.Report

    • Avatar Doctor Jay in reply to notme says:

      I think you’re conflating two very different things. The attorneys representing inmates under death sentence pursue claims in hopes of delay. This does not make them liberals, not remotely. It makes them good counsel, who represent the interests of their client.Report

      • Avatar notme in reply to Doctor Jay says:

        You are right, the lawyers may not be libs but liberals do use the time taken up by spurious claims to whine about the death penalty taking too long and costing too much. They want to have it both ways, the convict gets all his due process no matter how spurious the claim and then they want to use the length of time to whine about the death penalty.Report

        • Avatar InMD in reply to notme says:

          It seems to me that there is a similar level of hypocrisy on the part of conservatives who make government incompetence a significant basis of their political platform but suddenly when the state is killing people insist that the system is trustworthy and should be subject to as little review as possible.Report

    • Avatar Burt Likko in reply to notme says:

      If you see the appeals and the judicial review as dispensable then this line of argument might have some heft.

      I do not see the appeals and judicial review as dispensable.Report

  7. Avatar aarondavid says:

    Serious question @burt-likko that just occurred to me while reading this. Could the state use eminent domain to seize pentobarbital? Could the state set up manufacture itself? It is simply a chemical compound, I am sure the state has a lab somewhere that could put it together.

    Otherwise I am generally of the same opinion as @christopher-carr , minus the governor doing it. I don’t think it would help with the debates.Report

    • Avatar LeeEsq in reply to aarondavid says:

      There is nothing to prevent a state from making it’s own death penalty drugs besides the Americsn distaste for socialism. Lots of states and cities make their own asphalt and tar for roads.Report

      • Avatar aarondavid in reply to LeeEsq says:

        I am guessing that the drug is actually heavily regulated by the FDA/DEA, as I can see all sorts of small companies rushing in to make it and provide it. I would think that the next problem would be because the amounts would be so small (doesn’t take that much to hot shot someone, and there really aren’t that many executions,) not that many companies would set up just to produce one drug and breaking into the industry is not easy.

        But is it really socialism if the state isn’t making it for sale, and in fact is the only provider? As those socialism haters still need tar and asphalt…Report

        • This. If it’s still under patent, then simply no way. If not, then there are all sorts of hoops for a generic manufacturer to jump through. Have you done bioequivalency testing? Does your production facility conform to FDA spec? Has it been through the necessary periodic FDA inspections? Are your raw materials FDA certified?

          Per the discussion upstream, it would almost certainly be cheaper and faster for a group of states to go through the SCOTUS and get inert-gas asphyxiation blessed than it would be to produce their own drugs.Report

      • Avatar Christopher Carr in reply to LeeEsq says:

        I’d actually love to see this turn into a political football, if only to see conservative politicians falling all over themselves to promote state control of industry. Or alternatively, to watch their heads explode at having to choose between no death penalty and state control of industry.Report

    • Avatar Burt Likko in reply to aarondavid says:

      Sure, but that creates another problem: the first time a state does that, the manufacturer simply says “All righty, then, no more sales at all in the United States or to any U.S. customer period” and now the drug is totally unavailable for therapeutic purposes.Report

  8. Avatar notme says:

    I wonder how long the sleazy defense attorneys will drag out out the James Holmes execution?Report

    • Avatar David Parsons in reply to notme says:

      Hopefully until he dies a natural death in the prison infirmary. Murdering him won’t bring his victims back to life, and as long as he lives he has the opportunity to redeem himself.Report

    • Avatar Michael Cain in reply to notme says:

      The standard process used in all capital cases in Colorado typically takes a bit under ten years, is largely independent of whether the defense attorneys are sleazy or otherwise, and costs upwards of $1.5M (all reasons why it’s seldom pursued). Back at the beginning of the proceedings, the defense offered a guilty plea in exchange for life without parole. The DA decided to spend the state’s money and try for the death penalty, which is why we’ve just gotten to the guilty verdict after three years. There’s still some chance that the jury will decide on life without parole instead of death.Report

      • Avatar Notm in reply to Michael Cain says:

        Id like to know more, so im curious where the 1.5 mil number comes from. Personally, i think that the DA should have made the deal in this case.Report

        • Avatar Michael Cain in reply to Notm says:

          The state picks up the costs, as very few of our 64 counties could afford it. The number comes from the legislature’s Joint Budget Committee staff, from the analyst handling the AG’s budget, back when I worked there. The money pays for a whole lot more hours on both sides, plus added investigative and lab expenses, compared to non-capital cases. In the Holmes case, which has largely been a matter of dueling experts, the state is picking up the tab for all of that.

          The DA in the case has sometimes been described as a rising star in the state Republican party. Many people expect that he will try to leverage the publicity from the Holmes case into a nomination for the US Senate seat that’s up this year.Report

  9. Avatar John Howard Griffin says:

    Thanks for the post, Mr. Likko. That’s interesting.

    I only have an Off Topic thing to say:

    I’m guessing here, but it seems to me that there is a non-insignificant number of people who are:

    – pro-life AND pro-death penalty

    and there is also a non-insignificant number of people who are:

    – pro-choice AND anti-death penalty

    However, I am unsure of how many of each, but there are lots, to be sure. In general, I’d lump conservatives/Republicans and most libertarians in the first group; and liberals/Democrats and some libertarians in the second group, but that’s just me categorizing things.Report

    • Not only are there lots of each, but I have seen essays from both positions expressing incredulity that the other position could exist. Like, they understand how someone might be anti-both, or how someone might be pro-both… but someone who is pro-one and anti-other (as opposed to a reasonable anti-one and pro-other)??? That is just so crazy! Can you believe it???Report

      • Avatar John Howard Griffin in reply to Jaybird says:

        You see, I’m a weird one. I’m pro-choice and pro-death penalty.

        We’re just using the death penalty on the wrong people. The herd needs to be thinned much more deeply and much more often. Particularly at the top.Report

  10. Avatar Tod Kelly says:

    This was a fantastic post, Burt.

    As to the single and rather large question at hand, I remain somewhat dubious (despite being pretty anti-death penalty).

    I know that incarceration and execution are different things, but still this question niggles at me: Had West been convicted of 2 life sentences like his accomplice was due to age, mercy, or different laws at the time, would we have allowed him to hold off incarceration until all the people who might have oversight of him in the penal system were thoroughly vetted by West’s attorneys? If there are a personnel change at the prison at a later date, would we allow his incarceration to be suspended until such time as those new employees could be properly vetted by West’s attorneys?

    We wouldn’t, I think, and what’s more I think we’d find the notion deeply ridiculous. We would instead say that the degree to which prison employees were or weren’t qualified was a separate issue, and one that needed to be dealt with completely unattached to the issue of whether or not West should be incarcerated.

    All of which is to say that I think even though we’re all wanting to say that we are looking at this issue in a dispassionate way that has to do with things other than our opinion of the death penalty, I’m not sure that we are.Report

    • Avatar Guy in reply to Tod Kelly says:

      I don’t see another way to check the qualifications of the law’s agents in this case, though. For a prison guard or some such, we can reasonably expect that a mistreated prisoner will sue or otherwise complain, and qualifications will be dealt with in that way (this might not be a valid expectation, but it seems reasonable). In a death penalty case, I don’t see another opportunity to examine the qualifications of those administering the drug. I suppose if the execution were botched to the point that the prisoner survived they might respond in court, but I don’t feel we should rely on such circumstances.

      I also feel like there are cases where the qualifications of prison guards, arresting police officers, or others involved matter during the trial or appeal, but for some reason I can’t think of any.Report

  11. Avatar Patrick says:

    People are talking about making a Mars colony more feasible by making the first few iterations of the trip one-way only. Saves enormously on fuel costs and enables you to take a lot more on each trip.

    Seems to me like we’ve got the makings of a halfway decent penal colony system again.Report