Lying and Other Hijinks About the Death Penalty

Relatively unnoticed among her several frenetic attempts to come to the aid of a child killer was Judge Tanya Chutkan’s order (wiped away by the Supreme Court last night) to stay the Purkey execution because the drug to be used had not been approved by the FDA as “safe” and effective, and had not been prescribed by a physician.  Kent analysed this attempt here, but there is more that usefully could be said.

Kent dismantles, with his usual precision, the sleight-of-hand Judge Chutkan employed in her analysis.  But I’d like to step away from the lawyerly approach to ask the question any fair-minded layman must be puzzling over:  Why is a chemical that’s going to be used in an execution required either to be approved by a doctor or be “safe”?  The point of an execution is not to heal the “patient” or assure his safety.  It’s to end his life and terminate the need for safety.  Is there anyone who doesn’t understand this?

One thing I’ve noticed over the years is that lawyers tend to become caught up in their own world, a world that sometimes becomes entranced with needless, and occasionally idiotic, complications.  The idea that an execution drug is part of the healing arts is a sterling example.  No normal layman could possibly think such a thing, but capital litigation is now at the point where nine Supreme Court justices have to get up in the middle of the night to ponder it.

Along with the (closely related) incentives for defense counsel to blast out spaghetti claims in the 48 hours before an execution, this needs to change.

One more thing that bears mentioning is the indignant claim by the lawyer for the other child killer executed this week, Daniel Lewis Lee, that “It is beyond shameful that the government, in the end, carried out this execution in haste, in the middle of the night, while the country was sleeping,” (as reported in this Washington Post article).

Where’s the haste, exactly?  Lee’s case, like most other capital cases, was the opposite of haste.  Lee was convicted 23 years ago.  Justice for him ambled along at a snail’s pace because (1) our law unaccountably tolerates it, and (2) the defense bar does everything it can  —  which is quite a lot  —  to balloon it.  The idea that 23 years is “haste” is beyond preposterous, but this is the sort of thing defense lawyers serve up with equal doses of frequency, indignation and belligerence.