Sapientia et Doctrina

On Thursday, July 10, 2008, the US Fourth Circuit Court of Appeals ruled that Virginia’s lethal injection procedure does not violate the Eight Amendment, and thus is not unconstitutional. Judge William Traxler wrote the majority opinion, in which Judge Dennis Shedd joined:

Virginia is one of the thirty states that has adopted the three-drug combination discussed in Baze. Although there are some minor variations, the protocol is largely identical to that of Kentucky and, like Kentucky’s, includes a number of safeguards designed to ensure that the lethal chemicals are properly administered intravenously in a quick, humane fashion. The execution team consists of IV team members and an executioner who are experienced and well-trained. The IV team members, who possess prior medical qualifications, are provided with initial training in the insertion and establishment of IV catheters and lines for the execution process and with monthly refresher sessions conducted by a licensed physician. Additionally, all members of the execution team participate in monthly walk-throughs of the execution procedure.
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For our purposes, however, it is enough to observe that Virginia is not constitutionally required to eliminate every possibility that pain might occur or every unnecessary risk that may exist. Because Virginia’s rapid-flow induction procedure does not present a “substantial” or “objectively intolerable” risk of serious harm to Emmett, its use is a judgment call entrusted to the officials of the Department of Corrections. (CHRISTOPHER SCOTT EMMETT, v. GENE M. JOHNSON, Director, Commonwealth of Virginia Department of Corrections; GEORGE M. HINKLE, Warden,Greensville Correctional Center; LORETTA K. KELLY, Warden, Sussex I State Prison,, 2008 )

Justice Scalia has emphasized this point before, “This is an execution — not surgery….. We have been discussing this as though that is a constitutional requirement. Where does that come from, that you must find the method of execution that causes the least pain? We have approved electrocution, we have approved death by firing squad. I expect both of those have more possibilities of painful death than the protocol here. Where does this come from that in the execution of a person who has been convicted of killing people we must choose the least painful method possible? Is that somewhere in our Constitution?”  (Das, 2008 )

Description of the process:

Virginia’s protocol calls for the sequential injection of three lethal chemicals into the bloodstream by intravenous (IV) catheters and lines. See Baze, 128 S. Ct. at 1526-27. The first chemical consists of a 2-gram dose of sodium thiopental (“thiopental” or “Pentathol”), a fast acting barbiturate, which is divided between two syringes. When given in the amounts used for lethal injection of inmates, thiopental results in a deep, coma-like unconsciousness. It also results in the cessation of breathing, generally within a minute of its administration. It is followed by a syringe of normal saline to flush the IV line to ensure full delivery and eliminate the possibility of a chemical interaction between the thiopental and the next chemical. According to eyewitnesses, the administration of the thiopental is usually accompanied by a brief period of loud snoring, followed by the expected cessation of respiration.

The second chemical consists of 50 milligrams of pancuronium bromide (or “Pavulon”), a neuromuscular blocking agent that paralyzes the inmate, preventing all voluntary and involuntary movement of the skeletal muscles. The pancuronium bromide is followed by another syringe of normal saline to again flush the IV line.

The third chemical consists of 240 milliequivalents of potassium chloride, divided between two syringes. Potassium chloride interferes with the electrical signals that stimulate heart contractions, causing cardiac arrest and the “flat-line” electrocardiogram (EKG) reading that Virginia requires for the pronouncement of death. A third syringe of normal saline is also administered after the potassium chloride to flush the line.

By statute, “the Director or an assistant, a physician employed by the Department or his assistant, such other employees of the Department as may be required by the Director and . . . at least six citizens who shall not be employees of the Department” shall be present at each execution. Va. Code § 53.1-234. In practice, the Director, Deputy Director, and Warden of Greensville Correctional Center (where the death chamber is located) are all present during lethal injections, along with an execution team designated and trained to carry out the procedure. The execution team is comprised of a security team responsible for transporting and securing the inmate, an IV team to establish the requisite IV lines, and an executioner who injects the chemicals into the IV lines. Additional persons are present as needed to keep the execution records and attend to the equipment. The physician charged with the task of declaring death is also present and continuously monitors the inmate’s heart activity via a heart monitor. A second physician, who is charged with training the IV team, is usually present as an observer.

All members of the execution team are trained in the lethal injection procedure on an ongoing basis. The IV team receives training in the insertion and maintenance of IV lines from a physician licensed to practice medicine by the Virginia Board of Medicine. At least two members of the IV team must “have received training as military corpsmen, cardiac emergency technicians, or should receive on-the-job training from a physician in receiving and dispensing medications, to include starting and administering IV fluids.” DOP 426. The team members are trained over an initial period of at least twenty hours, but are not certified as proficient until the training physician is personally satisfied with their skill level. The executioner has been trained by his predecessor in the administration of the lethal drugs, including training on how to assess for obstructions or other problems with the IV catheters and lines. In addition, the entire execution team receives at least eight hours of monthly training, which includes participating in mock executions. In addition to refresher training conducted with the IV team members in the location and placement of IV catheters and lines, the team members are educated about how to assess for complications in the IV lines that might prevent the effective administration of the chemicals.

The current IV team consists of an individual with 20 years of medical service and EMT training, and a certified phlebotomist. The physician responsible for training the IV team testified that he has never observed any complications or mistakes by the IV team during an execution and has found the team members to be very proficient.

Before each execution, the Department of Corrections obtains enough chemicals to prepare three full sets of syringes. In addition, the IV team examines the inmate to assess venous access and any anticipated difficulty in establishing the IV lines. On the evening of the execution, the IV team prepares and fills two complete sets of the syringes. The syringes are labeled sequentially, placed on a tray, and kept by the executioner. The death chamber itself consists of a single room, with an adjacent, windowed room for the witnesses.

Immediately prior to the execution, the inmate is transported to the execution room, where he is placed on a gurney, restrained, and positioned to face the adjoining witness room. The window to the witness room is then temporarily blocked by a curtain while the final preparations are made. A second, rear curtain containing a window and two portholes is present behind the inmate’s head.

The IV team establishes two IV lines, one primary and one backup, and attaches tubing to allow for a saline drip and the administration of the lethal drugs from behind the rear curtain. The IV lines are passed through the portholes in the rear curtain. The IV catheters are secured and taped down to avoid movement or migration. Once the catheters and lines are inserted, the executioner starts a continuous drip flow of IV fluids to ensure that they are properly placed, open, and flowing, which is confirmed by the IV team. The electrodes for the EKG are also connected to the inmate.

Once the IV team completes its work, all team members move behind the rear curtain. When the execution is ready to proceed, the curtain that temporarily blocks the witness room is removed. During the entire process, the Director remains in front of the rear curtain with the inmate. He is also in constant contact with the Governor’s office by way of a telephone located in the death chamber. When the Director receives confirmation from the Governor’s office that the execution may proceed, he instructs the Warden to start the execution. The Warden then steps behind the rear curtain and signals the executioner to begin.

The execution process is conducted in a solemn environment and the general practice is to conduct the process largely in silence and to communicate via hand signals. Once the order to proceed is given, the executioner sequentially injects each of the chemicals and intermittent saline flushes in a “rapid-flow” manner. A member of the IV team takes each labeled syringe in order from the tray and hands it to the executioner for administration. The executioner, in turn, double-checks each label for accuracy before injecting the contents of the syringe into the IV line. While doing so, the executioner is able to observe the inmate and the IV site either through the window or porthole in the rear curtain, but in practice the current executioner chooses to observe through the porthole. The distance from the porthole to the inmate’s arm, where the IV is sited, is approximately three feet or less. While administering the chemicals, the executioner watches for swelling or other signs of infiltration at the IV site. The executioner is trained to feel for any resistance against the injection of the syringe contents. If the flow is stopped, he encounters undue resistance, or he becomes concerned for any reason that the primary line has ceased to be a patent and flowing portal, he can motion for the IV team to switch to the back-up IV line.

The physician, who is also positioned behind the rear curtain, continuously monitors the EKG reading and pronounces death when all electrical activity ceases, i.e., when the EKG registers a flat-line reading. The EKG is also monitored by an execution team member. The Deputy Director stands next to the physician. A timekeeper records the time that each chemical is administered, as well as the time that death is declared. The DOP 426 checklist provides that “[i]f the heart monitor does not indicate a flat line reading within ten minutes after completing the injection of the first set of lethal chemicals, then a second set of lethal chemicals will be administered (Pavulon and Potassium Chloride only), using the alternate IV line.” DOP 426. In practice, the Director, who is in front of the rear curtain with the inmate and the liaison with the Governor’s office, has delegated the task of overseeing the administration of the lethal drugs to the Deputy Director, who has been attending executions in Virginia since 1995. In addition to personally observing the preparations for the execution, he oversees the entire process, including all activities conducted behind the windowed curtain. He testified that if the EKG does not indicate a flat-line reading within a minute or two after administration of the first set of chemicals, he immediately orders the executioner to administer the second set of pancuronium bromide and potassium chloride.

Once the EKG registers a flat-line reading and the physician declares death, the Warden steps out from behind the back curtain and signals to the Director that death has occurred. The Director notifies the Governor’s office that the death sentence has been carried out, and the curtain to the witness room is closed to prevent further observation. The body of the inmate is transported to the medical examiner’s office and the execution team members meet to sign the execution log and participate in a debriefing on the execution. (CHRISTOPHER SCOTT EMMETT, v. GENE M. JOHNSON, Director, Commonwealth of Virginia Department of Corrections; GEORGE M. HINKLE, Warden,Greensville Correctional Center; LORETTA K. KELLY, Warden, Sussex I State Prison,, 2008 )

Bibliography

1. CHRISTOPHER SCOTT EMMETT, v. GENE M. JOHNSON, Director, Commonwealth of Virginia Department of Corrections; GEORGE M. HINKLE, Warden,Greensville Correctional Center; LORETTA K. KELLY, Warden, Sussex I State Prison,, 07-18 (UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT July 10, 2008).
2. Das, D. (2008, May). Supreme Court Pardons Lethal Injections. Retrieved July 13, 2008, from A Modest Proposal: http://amp.utdallas.edu/?storyid=881

In our country law is not a body of technicalities in the keeping of specialists or in the service of any special interest. There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny. Legal process is an essential part of the democratic process. (Frankfurter, 1947)

Bibliography
UNITED STATES v. UNITED MINE WORKERS OF AMERICA. SAME v. LEWIS, JOHN L. President of United Mine Workers of America., 330 U.S. 258 (The Supreme Court March 6, 1947).

Many institutions / individuals tend to settle out of the court in fear of burdensome costs of discovery / e-discovery. A lawyer in Virginia, Clifford Shoemaker, tried to use that technique to silence a critic of his by serving her with a subpoena to produce a shockingly broad collection of information, including her bank statements, tax returns, communications with religious organizations, and personal correspondence with other bloggers.

A federal magistrate judge in New Hampshire not only quashed the subpoena but also sanctioned Clifford Shoemaker for abusing the legal process by issuing such a subpoena to Kathleen Seidel:

Mr. Shoemaker made no attempt to avoid imposing an undue burden or expense on Ms. Seidel. To the contrary, I find that he sought to burden her by requiring production of every scrap of paper related to autism, her web site, her tax returns, and her communications with the government. He improperly imposes a requirement to create documents, e.g., a list of “names of persons helping, paying or facilitating . . . these endeavors.” The documentation sought is exhaustive. . . .

Read More .. ..

LATEST UPDATES (7/03/08): It appears that The Supreme Court may have a made a mistake by making capital punishment for rapists unconstitutional. It admits to the error, on the basis that it  overlooked the fact that Congress has added child rape to the military death penalty in 2006. Details here, here, and here.

On 25th of June 2008, In a 5-4 vote, the Supreme Court struck down the Louisiana law that allowed the execution of rapists convicted of raping a child. This is indeed the sad news of the day. It is an example of how few liberal Justices have taken the business of creating laws into their own hands. What should be decided by the Legislative branch is now being decided by the Judicial Branch. In the past, Justice Scalia has voiced his opposition to this law-making practice of the Supreme Court :

The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize. (BOARD OF COUNTY COMMISSIONERS, WABAUNSEE COUNTY, KANSAS v. UMBEHR, 1996)

This Court seems incapable of admitting that some matters—any matters—are none of its business. (SOSA v. ALVAREZ-MACHAIN ET AL., 2004)

In KENNEDY v. LOUISIANA, June 25, 2008,   Justice Kennedy delivered the opinion of the Court, in which four of his liberal colleagues, Justice Souter, Justice Stevens, Justice Ginsburg, and Justice Breyer joined, making execution of convicted rapists unconstitutional.

Justice Alito, filed a dissenting opinion, in which Justice Roberts,  Justice Scalia and Justice Thomas, joined.

Justice Alito wrote:

The Court is willing to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape because, in the end, what matters is the Court’s “own judgment” regarding “the acceptability of the death penalty.” Ante, at 24. Although the Court has much to say on this issue, most of the Court’s discussion is not pertinent to the Eighth Amendment question at hand. And once all of the Court’s irrelevant arguments are put aside, it is apparent that the Court has provided no coherent explanation for today’s decision.
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The Court’s final–and, it appears, principal–justification for its holding is that murder, the only crime for which defendants have been executed since this Court’s 1976 death penalty decisions, is unique in its moral depravity and in the severity of the injury that it inflicts on the victim and the public. See ante, at 27-28. But the Court makes little attempt to defend these conclusions.

With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. See, e.g., Tison v. Arizona, 481 U. S. 137 (1987). In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?
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With respect to the question of the harm caused by the rape of child in relation to the harm caused by murder, it is certainly true that the loss of human life represents a unique harm, but that does not explain why other grievous harms are insufficient to permit a death sentence. And the Court does not take the position that no harm other than the loss of life is sufficient. The Court takes pains to limit its holding to “crimes against individual persons” and to exclude “offenses against the State,” a category that the Court stretches–without explanation–to include “drug kingpin activity.” Ante, at 26. But the Court makes no effort to explain why the harm caused by such crimes is necessarily greater than the harm caused by the rape of young children. This is puzzling in light of the Court’s acknowledgment that “[r]ape has a permanent psychological, emotional, and sometimes physical impact on the child.” Ante, at 24. As the Court aptly recognizes, “[w]e cannot dismiss the years of long anguish that must be endured by the victim of child rape.” Ibid.

The rape of any victim inflicts great injury, and “[s]ome victims are so grievously injured physically or psychologically that life is beyond repair.” Coker, 433 U. S., at 603 (opinion of Powell, J.). “The immaturity and vulnerability of a child, both physically and psychologically, adds a devastating dimension to rape that is not present when an adult is raped.” Meister, Murdering Innocence: The Constitutionality of Capital Child Rape Statutes, 45 Ariz. L. Rev. 197, 208-209 (2003). See also State v. Wilson, 96-1392, p. 6 (La. Sup. Ct. 12/13/96),685 So. 2d 1063, 1067; Broughton, “On Horror’s Head Horrors Accumulate”: A Reflective Comment on Capital Child Rape Legislation, 39 Duquesne L. Rev. 1, 38 (2000). Long-term studies show that sexual abuse is “grossly intrusive in the lives of children and is harmful to their normal psychological, emotional and sexual development in ways which no just or humane society can tolerate.” C. Bagley & K. King, Child Sexual Abuse: The Search for Healing 2 (1990).

It has been estimated that as many as 40% of 7- to 13-year-old sexual assault victims are considered “seriously disturbed.” A. Lurigio, M. Jones, & B. Smith, Child Sexual Abuse: Its Causes, Consequences, and Implications for Probation Practice, 59 Sep Fed. Probation 69, 70 (1995). Psychological problems include sudden school failure, unprovoked crying, dissociation, depression, insomnia, sleep disturbances, nightmares, feelings of guilt and inferiority, and self-destructive behavior, including an increased incidence of suicide. Meister, supra, at 209; Broughton, supra, at 38; Glazer, Child Rapists Beware! The Death Penalty and Louisiana’s Amended Aggravated Rape Statute, 25 Am. J. Crim. L. 79, 88 (1997). (KENNEDY v. LOUISIANA, 2008 )

Bibliography

BOARD OF COUNTY COMMISSIONERS, WABAUNSEE COUNTY, KANSAS v. UMBEHR, 518 U.S. 668 (The Supreme Court June 28, 1996).
KENNEDY v. LOUISIANA, 554 U. S. ____ (The Supreme Court June 25, 2008 ).
SOSA v. ALVAREZ-MACHAIN ET AL., 542 U.S. 692 (The Supreme Court June 29, 2004).

Addendum

The following politicians have publicly denounced this decision of the court:

1. Senator McCain;
2. Senator Obama
3. Bobby Jindal, Governor of the State of Louisiana
4. Troy King, Atorney General, Alabama

Resources

1. Kennedy v. Louisiana opinion text
2. Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice
   

[Law] is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated. (Aquinas, 1265-1274)

Note(s):

1. Aquinas, T. (1265-1274). Summa Theologica, First Part of the Second Part, Question 90, Article 4.

Because just as good morals, if they are to be maintained, have need of the laws, so the laws, if they are to be observed, have need of good morals. (Machiavelli, 1513-1517)

Note(s):
Machiavelli, N. (1513-1517). Discourses on the First Decade of Titus Livius. (A. Gilbert, Trans.) Duke University Press.

In holding that the Establishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Court—with nary a mention that it is doing so—lays waste a tradition that is as old as public-school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion, which promises to do for the Establishment Clause what the Durham rule did for the insanity defense. See Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954). Today’s opinion shows more forcefully than volumes of argumentation why our Nation’s protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people. (Robert E. LEE, Individually and as Principal of Nathan Bishop Middle School, et al., Petitioners, 1992)

I cannot join for yet another reason: the Court’s statement that the proposed use of the school’s facilities is constitutional because (among other things) it would not signal endorsement of religion in general. Ante, at ____. What a strange notion, that a Constitution which itself gives “religion in general” preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general. The Attorney General of New York not only agrees with that strange notion, he has an explanation for it: “Religious advocacy,” he writes, “serves the community only in the eyes of its adherents and yields a benefit only to those who already believe.” Brief for Respondent Attorney General 24. That was not the view of those who adopted our Constitution, who believed that the public virtues inculcated by religion are a public good. It suffices to point out that during the summer of 1789, when it was in the process of drafting the First Amendment, Congress enacted the famous Northwest Territory Ordinance of 1789, Article III of which provides, “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” 1 Stat. 52 (emphasis added). Unsurprisingly, then, indifference to “religion in general” is not what our cases, both old and recent, demand. (LAMB’S CHAPEL and John Steigerwald, Petitioners, v. CENTER MORICHES UNION FREE SCHOOL DISTRICT et al., 1993)

Bibliography
Robert E. LEE, Individually and as Principal of Nathan Bishop Middle School, et al., Petitioners, 505 U.S. 577 (Supreme Court June 24, 1992).

LAMB’S CHAPEL and John Steigerwald, Petitioners, v. CENTER MORICHES UNION FREE SCHOOL DISTRICT et al., 508 U.S. 385 (The Supreme Court June 7, 1993)

But where there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.(William Wayne THOMPSON, Petitioner v. OKLAHOMA, 1988 )

Bibliography
William Wayne THOMPSON, Petitioner v. OKLAHOMA, 487 U.S. 815 (The Supreme Court June 29, 1988).

Convictions in opposition to the death penalty are often passionate and deeply held. That would be no excuse for reading them into a Constitution that does not contain them, even if they represented the convictions of a majority of Americans. Much less is there any excuse for using that course to thrust a minority’s views upon the people. Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us — the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which JUSTICE BLACKMUN did not select as the vehicle for his announcement that the death penalty is always unconstitutional — for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina, cert. pending, No. 93-7200. How enviable a quiet death by lethal injection compared with that! If the people conclude that such more brutal deaths may be deterred by capital punishment; indeed, if they merely conclude that justice requires such brutal deaths to be avenged by capital punishment; the creation of false, untextual, and unhistorical contradictions within “the Court’s Eighth Amendment jurisprudence” should not prevent them. (Callins v. Collins, Director, Texas Department of Criminal Justice, Institutional Division., 1994)

Bibliography
Callins v. Collins, Director, Texas Department of Criminal Justice, Institutional Division., 510 U.S. 1141 (The Supreme Court February 22, 1994)

That is, quite simply, the issue in this case: not whether the power of a woman to abort her unborn child is a “liberty” in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe, and of the mystery of human life.” Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected - because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the long-standing traditions of American society have permitted it to be legally proscribed. (PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, et al., Petitioners, v. Robert P. CASEY, et al., etc., 1992)

Bibliography
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, et al., Petitioners, v. Robert P. CASEY, et al., etc., 505 U.S. 833 (The Supreme Court June 29, 1992).