Murderer is Murdered by Law.

December 19, 2010 at 7:00 P.M. Attacks against my computer have prevented me from "defragmenting" or "defragmentalizing" my hard discs (choose your favorite term). I will try again tomorrow to perform this action and will struggle to regain the ability to space paragraphs normally at these blogs.

November 15, 2010 at 10:53 A.M. A single quotation mark was removed from this text since my previous review of the essay. I have now restored that quotation mark to the text. John Schwartz, "Murderer Executed In Arizona," in The New York Times, October 28, 2010, at p. A16 and Norman Mailer, The Executioner's Song (New York: Warner Books, 1979).

... the Warden said, "Do you have anything you'd like to say?" and Gary looked up at the ceiling and hesitated, then said, "Let's do it." That was it. The most pronounced amount of courage, Vern decided, he'd ever seen, no quarter, no throatiness, right down the line. Gary had looked at Vern as he spoke.

"The state of Arizona executed Jeffrey Landrigan on Tuesday night after the Supreme Court lifted a lower court's injuction blocking the lethal injection."

Norman Mailer would have delighted in the ironies of this situation:

"Last-minute appeals for Mr. Landrigan, who was convicted of murder in 1990, focused on the origins of one of the drugs used in the state's three-drug execution protocol." 

This is not an isolated problem:

"Shortages of barbituates have led to delays in several states. The only domestic manufacturer approved by the Food and Drug Administration [FDA] to make sodium thiopental, the barbituate used in Arizona, suspended production of the drug a year ago."

As a result:

"With no supplies coming from sources approved by the F.D.A." -- the F.D.A. is concerned about the safety of lethal injections? -- "Judge Roslyn O. Silver of Federal District Court in Arizona had demanded that the state provide information about the origins of its drug, in order to know whether there were risks of impurity or efficacy that could violate Mr. Lanigan's rights under the Eighth Amendment barring cruel and unusual punishment." ("The Allegory of the Cave.")

The FDA will not approve just any drug that will kill you. In order for the FDA to give its "blessing," as it were, the lethal drug must kill you "nicely." 

Notice that this concern has nothing to do with the medications used to put someone to sleep before the lethal substance is administered. 

I recall an American general's response to criticisms of his methods in battle: "There is no nice way to kill people."

There is no potential increase in suffering for the victim to be executed regardless of the drugs used because the person will not be awake, or conscious, I hope, when the legally-sanctioned poison is administered. 

Evidently, the concern by the FDA is that an individual not be writhing on a stretcher (or convulsing) and providing an ugly spectacle for the good folks witnessing the death who may want to snap some pictures of the event. Refreshments may be served in Texas executions in the future. (See Kevin Spacey and Kate Winslet in "The Life and Death of David Gale.")

"The state refused to detail in open court, the origins of the drug or the process used to obtain it, citing confidentiality laws, though officials said it had come from England. Thus 'the court is left to speculate,' Judge Silver wrote, 'whether the non-FDA approved drug will cause pain and suffering.' ..."

It is undisputed that the drug will cause death. The company that manufactures this lethal drug to be used in executions is British. The Brits have outlawed the death penalty, like all EU nations, but the owner of this company (or primary stockholder) is probably someone who has been knighted by the Queen. Inconsistent?

"A three-judge panel of the Court of Appeals for the Ninth Circuit upheld the order. After the full Ninth Circuit refused to rehear the case, the state appealed to the Supreme Court."

The result is predictable:

"In a one-page order issued Tuesday night" -- this decision must have been written by Justice Thomas -- "explaining the 5-to-4 vote to vacate Judge Silver's temporary restraining order, the Supreme Court stated that Judge Silver's reasoning was flawed because the case affirming the constitutionality of the three-drug execution method Baze v. Rees, [sic.] had a high standard of proof that an execution method would cause harm.

I think the Supreme Court of the United States of America should take judicial notice of the fact that execution methods are intended to, and do in fact, cause harm. Indeed, I would go so far as to suggest that execution methods often result in the EXECUTION of persons, i.e., in death or ultimate harm. (Jonathan Swift's "A Modest Proposal.")

In a nation where several jurisdictions still use hanging or firing squads as execution methods, where "mistakes" have resulted in MULTIPLE execution attempts of the same individuals on the same occasions, this concern as regards lethal injections seems a tad puzzling. 

I always suspected that Justices Scalia, Thomas, Roberts and Alito were bleeding heart liberals and fond of coddling criminals, but this squeamishness about execution methods is surprising coming from them. "Burn them all!," Mr. Scalia may insist with his usual chuckle.

"The Court stated that 'speculation' cannot substitute for evidence that the use of the drug is 'sure or very likely to cause serious illness and needless suffering.' ..."

What a relief. 

In other words, let us try the drugs from Britain and see what happens. This way it will not be necessary to "speculate" on whether they cause "needless suffering" or "serious illness" because we will be able to tell right away whether persons subjected to the drugs die quickly, quietly, or efficiently, as opposed to "suffering serious injury or illness." (?)

I describe this U.S. Supreme Court decision as an example of what Lord Coke (pronounced "Cook") described as the "artificial reason of the law."