Viewpoint: Death Penalty Excoriated in Kozinski’s “Modest Proposal”

On July 19, 2014, the Ninth Circuit held in Wood v. Ryan, No. 14-16310 (9th Cir. 07/19/2014) that Wood, an inmate facing execution on July 23, legitimately sought information from the Arizona Department of Corrections regarding the nature of the drugs to be used for his lethal injection, their manner of injection, and the qualifications of those administering those drugs.

The opinion states that “[k]nowing the source and manufacturer of the drugs, along with [their specific identifiers], allows the public to discern whether state corrections departments are using safe and reliable drug manufacturers. Similarly, knowing the specific qualifications of those who will perform the execution will give the public more confidence than a state’s generic assurance that executions will be administered” safely and according to regulation.

Wood pleaded that by withholding the information, Arizona had violated the First Amendment. The Ninth Circuit issued a preliminary injunction in his section 1984 case which also acted as a stay of execution for his death sentence.

In essence, the case vindicated the public’s First Amendment right to know, and therefore discuss, what the majority termed the “seismic shift in the lethal injection world in the last five years . . . “

The opinion sketches the progress from thiopental to pentobarbital, and then “to various cocktails of drugs as . . . the manufacturer of pentobarbital stopped selling the drug to prisons.“ States turned to “new types and combinations of drugs, like Midazolam and Hydromorphone, and states are enacting laws to shield the identities not just of executioners, but of the companies that produce lethal injection drugs.” Meanwhile, several flawed executions “have sparked public curiosity and debate over the types—and quality—of drugs that should be used in lethal injections.”

A petition to rehear the Wood decision was denied en banc on July 21. Chief Judge Alex Kozinski dissented, stating directly that if Wood could not get a stay of execution under the Eighth Amendment because lethal injection was cruel and unusual, then Wood “certainly is not entitled to one under the First Amendment.”

Kozinski, having identified the Wood opinion as a questionable First Amendment route to a blatently clear end, a stay of Wood’s death, pointed out that this legal detour was the direct result of states’ ill-considered adoption of lethal injection as a means of accomplishing the death penalty.

Kozinski starts with the fact that “[u]ntil . . . three decades ago, executions were carried out by means designated for that purpose alone: electric chairs were the most common, but gas chambers, hanging and the occasional firing squad were also practiced.” These procedures were unsuccessfully challenged under the Eighth Amendment.

“Nevertheless, starting in the late 1970s, states began moving away from these traditional methods of execution and towards using drugs as execution tools. Perhaps this was done in the belief that it would forestall a constitutional challenge to [other] method[s] of execution; perhaps it was thought to be more humane . . . Whatever the reason, the federal government and all states that retain capital punishment now authorize the use of drugs for that purpose . . . ”

The move to lethal injection was “misguided”:

“Subverting medicines meant to heal the human body to the opposite purpose was an enterprise doomed to failure. Today’s case is only the latest in an unending effort to undermine and discredit this method of carrying out lawful executions.”

Kozinski notes that “[u]sing drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful . . . But executions are . . . nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.”

Kozinski concluded that if states wish to continue carrying out the death penalty, they must abandon lethal injection “and return to more primitive—and foolproof—methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising . . . If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.”

The shock these remarks induced in the legal community was palpable. The dissent was widely reported in the media as advocating cruelty and a return to primitive mores. This is a misunderstanding which confuses a trope for essential meaning, though Kozinski obviously encouraged this misunderstanding by using an elaborate and exaggerated literary style. Kozinski has been known for pranks in the past. For instance, in US v. Syufy Enterprises, 903 F.2d 659 (9th Cir. 1990), he mentioned approximately 215 movie titles in the body of an opinion concerning possible antitrust violations by a movie theater chain.

Kozinski’s death penalty remarks, while surely darker than his Syufy Enterprises opinion, have a satirical lineage going back at least to Jonathan Swift’s 1729 “A Modest Proposal.” Swift proposed the elimination of Irish overpopulation by recommending the eating of nearly all poor children under the age of one. This would eliminate the numbers of the poor while simultaneously providing the remainder with nutrition.

In an ironic manner which emulates Swift, Kozinski has prodded discussion of the validity of the death penalty by undercutting it with the ridiculous and straight-faced advocacy of the return to firing squads. His purported conclusion, spurious as it may be, is based on a sober and serious analysis:

“While I believe the state should and will prevail in this case, I don’t understand why the game is worth the candle. A tremendous number of taxpayer dollars have gone into defending a procedure that is inherently flawed and ultimately doomed to failure. If the state wishes to continue carrying out executions, it would be better to own up that using drugs is a mistake and come up with something that will work, instead.”

Those appalled by the seemingly cruelty of his spurious conclusion should relax–he really doesn’t mean it. What he intends, at the high risk of being misunderstood, is truth-telling. Death penalty litigation has been a charade masking deep political and societal changes in public opinion. The courts and the parties know that the abolition of the death penalty is certain in the immediate future.

There is no shortage of proof. Both the California governor and the Attorney General voted for Proposition 34, the 2012 measure which would have abolished the state death penalty and were not shy about publicizing their votes. The vote on Proposition 34 was roughly 52% against to 48% for. It is not beyond possibility that a a gain of a few more percentage points in society’s attitude in favor of abolition will cause either or both to abandon defense of the death penalty entirely, much as both abandoned Proposition 8, the anti-gay marriage proposition, when it was obvious that the electorate would favor gay marriage.

Moreover, no California execution has occurred since 2006, the advent of lethal injection litigation. As Kozinski notes as an example: “Another symptom of the problem is the decade-long inability (or perhaps unwillingness) of California state officials to come up with an execution protocol, effectively putting the state’s death chamber out of commission“ (See Jones v. Chappell, No. CV09-02158-CJC (C.D. Cal. 07/16/14); http://images.law.com/sites/jamesching/2014/07/18/ninth-circuit-preview-jones-v-chappell-invalidates-california-death-penalty/) It is difficult to imagine that there is substantial momentum in the state for any execution at any time in the future.

In sum, the state’s highest public officials, and quite possibly, the courts and the state’s own administrative agencies are at least passively in favor of the abolition of the death penalty. But Wood’s outcome chillingly makes this outcome even more certain. On July 23, Wood’s application for a stay of his execution and certiorari was denied. (Wood v. Ryan, No. 14-5333 (07/23/14))

Wood was executed on July 23. His death took two hours amid reports of labored breathing which some witnesses took as evidence that the execution was cruel and unusual. Kozinski’s observations about the flawed nature of lethal injection were confirmed, and it very well may be that, as he implied, any future death by lethal injunction will cause the abolition of the death penalty by reason of its barbaric outcome.

As Wood’s appeal to the First Amendment was ultimately futile, so is any other legal approach to the abolition of the death penalty other than the invalidity of lethal injection under the Eighth Amendment. Even in Eighth Amendment cases such as Jones v. Chappell, a different approach yields a kind of bankruptcy of ideas. This case, cited by Kozinski, invalidates the California death penalty on the basis of extreme post-conviction delay in processing the inmates direct and collateral death penalty objections. This produces dysfunctional results which the court held violated the Eighth Amendment. However, in holding the state solely responsible for the delay while failing to acknowledge that the case was within federal hands for 46.2% of the delay, the pot is simply calling the kettle black.

There seems little thought as to what would happen in the admittedly unlikely event that more money is put into the system and appeals are hastened. Legally, the court would have to concede that executions could resume because the length of the post-conviction litigation would be shorter. Without query of the 748 individuals concerned, those sitting on Death Row, the court seemingly engages in the unspeakable arrogance of speaking for the living by concluding that they all, in theory, would be better off dying quicker than surviving during the long duration of their post-conviction appeals.

Besides, the court’s ruling violates one of the premier rules of defense counsel: no defendant is better off by immediately serving the client’s sentence. Otherwise, counsel who contemplated filing an appeal would immediately move to remand the client to custody because the defendant would inevitably receive credit for time served if and when the client lost. (Indeed, the overwhelming percentage of criminal convictions are affirmed.) There is little logic in insisting that defense counsel or their clients are not the better for delay. Why would the court assert the opposite? It is one thing to accept and participate in the accommodation of post-conviction delay. It is another to make it a hypocrisy.

Still, vacuous decisions such as Jones v. Chappell may survive and triumph if, for example, California concedes the case by refusing to defend it. From the point of anti-death penalty advocates, it little matters how the abolition occurs and for what reasons, with or without backbreaking mental contortions. This is a perfectly valid attitude when a life is on the line.

Purists might note that there have been no California executions since 2006 and would bet, with the odds in their favor, there will never be another one. They might insist, then, that the death penalty be abolished for being what it is and is known to be: invalid for the simple and correct reason that the method for execution, either ingenuously or ingeniously chosen, is utterly incapable of meeting Eighth Amendment standards. There is little reason to throw one’s legal reputation under the bus to achieve a desired goal when an alternative, direct, and sustainable route is available.

More by | James Ching James Ching , Law.com Contributor
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