The CCA, like most of California's judges, has decided to give some temporary merit to the claim that lethal injection might just involve some pain. I feel confident that the claim, like so many other death penalty red herrings, will itself die a quick death once the SC rules on the issue.

Meanwhile, doesn't it seem a bit strange that O'Brien, the latest winner in the injection-delay lottery, has his crime summarized in a nice, clinical sentence:

"For an hour, the six raped and tortured the girls before strangling them - stomping on their necks for good measure."

At some point, the courts are going to have to explain why criminals who have received a fair trial that establishes they legally deserve to be executed should likewise have some mysterious right to die without any sense of dying.

So far, Scalia is the only one pointing out the obvious:

"I just don't know from where you are deriving this principle that there cannot be any pain. It seems like an extreme proposition."

For an interesting discussion of the politics of seeking a Happy Death Box, read this editorial.

[This message was edited by John Bradley on 05-16-06 at .]

[This message was edited by John Bradley on 05-18-06 at .]

Surely even incarceration involves a degree of pain, and more than merely emotional pain. If we are to accept the notion that punishment cannot inflict pain, fling open the prison doors!

The Eastern District just sent back to state court one of our capital cases on the lethal injection issue: Alba--a case retried after the Saldano fiasco! Sting . . . . it is more like kicked in the belly!

John, the problem with these cases, as well as many others, is a bunch of judges legislating from the bench. The Eighth Amendment prohibits "cruel and unusual" punishments from being inflicted. The question then becomes, "What does cruel and unusual mean?" Unfortunately, instead of interpreting the words of the Eighth Amendment as the Framers meant them when they were written, our Supreme Court has decided to apply "evolving standards of decency" and world opinion to decide what offends the Eighth Amendment. Certainly, if there is a sufficient number of citizens who oppose a particular punishment, the Constitution can be amended. However, when the Courts decide to change its meaning to suit them without regard for the Framers intent, they have ursurped the role of the legislature and violated the Separation of Powers doctrine. Much mischief could be avoided by simply looking to the punishments commonly applied at the time the Eighth Amendment was written.

Here are some common forms of punishment from that time period:

Stocks: Wooden framework with foot holes in which the ankles were locked while the criminal sat down.

Pillory: Like the Stocks, the Pillory was a wooden framework. The Pillory, on the other hand, had holes for the head and hands. Also, the criminal had to stand. It was common to throw items such as rotten fruit and/or rocks at the criminal which made the already extremely uncomfortable Pillory an even worse punishment.

Whipping Post: This was simply where criminals were whipped before the entire town.

Ducking Stool: The Ducking stool was a chair to which criminals were tied and dunked into water as punishment.

In light of the punishments that were not considered cruel or unusual at the time the Eighth Amendment was written, it seems ridiculous to question our current method of execution. I would love to see what type of punishment the Framers of our Constitution would have considered appropriate for O'Brien. I suspect that, given an option between that and our current method of execution, O'Brien would be begging for the needle.

[This message was edited by Sammy McCrary on 05-16-06 at .]

John, I saw the Houston news last night. They interviewed Pena's father, who understandably was very upset that justice was delayed, yet again. The defendant's name is Derrick O'Brien. The victims were Elizabeth Pena & Jennifer Ertman. Just thought we should get the names right.

[This message was edited by e hernandez on 05-16-06 at .]

Appeals court lifts stay in gang member case
Another prisoner executed after similar appeal denied.
By Michael Graczyk
ASSOCIATED PRESS
Thursday, May 18, 2006

HOUSTON The Texas Court of Criminal Appeals on Wednesday lifted a reprieve it issued this week that stopped the execution of a Houston gang member condemned for the torture-slaying of two teenage girls.

Lawyers for Derrick Sean O'Brien won the halt to the execution when they argued in an appeal that the drugs used to kill the prisoner "unnecessarily create a risk that O'Brien will suffer excruciating excessive pain during the administration of his lethal injection."


To read Judge Cochran's concurring opinion, go to this link. What should concern us, however, is that four judges on the CCA (Price, Holcombe, Womack and Johnson) dissented. Womack gives no reason for his dissent, a curious approach to such litigation. Price expresses his doubts as to whether lethal injection is constitutional. Johnson just wonders aloud when a challenge could be heard.

Cochran makes it clear that not one court in the land has said lethal injection is cruel and unusual. She also makes it clear that O'Brien presented no evidence supporting his claim. Where's the beef?

[This message was edited by John Bradley on 05-18-06 at .]

I believe that every convicted murderer sentenced to death has a Constitutional right to not have to bear any more pain than his or her victim.

Time for this one to go. I was living in Houston at the time, and clearly remember the many appearances by the victim's family in the media. My god, to have your child killed in such a brutal and senseless manner. I couldn't imagine the pain. To paraphrase Andy Kahan, this guy is a poster child for the death penalty and surely needs to go. Another fine job by the Harris County DA's Office.

Once again, Judge Cochran has provided an articulate analysis and adopted a most sensible position. Too bad Judge Womack would not share his thoughts. Obviously the d/p has not become dormant despite all the recent stays across the nation.

Even the more extreme death penalty opponents cannot deny the guilt of Derrick O'Brien and company. It is regrettable that in such a case, the appeals process has been abused to extend both the lives of the criminals and the torment of the families of their victims.

Does 'effective counsel' demand a defense attorney who is a latter day Clarence Darrow? Did not the spirit of the ban on 'cruel and unusual punishment' deal with the more exotic modes of execution such as burning; burial alive; being hanged, drawn, and quartered while accepting a simple hanging. Perhaps it was a mistake to substitute more 'humane' methods. There seems to be no pleasing some people.

Should a punishment far less painful than the crime be deemed unusually cruel?

It is regrettable that 'fan clubs' for monsters such as O'Brien send love letters and money to convicted killers who appear utterly without remorse. Yet the folly of the love-lorn correspondents is far less offensive that judicial creativity that creates new avenues of escape for the worst of the worse.

If I put my blinders on and just go by the strict wording then it seems that punishment can be cruel, or punishment can be unusual, but it cannot be both cruel and unusual.

Sending someone to prison for 10 years for a first offense class C misdemeanor is unusually cruel, but the punishment is not an unusual punishment in the sense that many people are sentenced to 10 years in prison for more serious crimes.

When I take the blinders off and look at the words in context of the full amendment, it does seem like "unusually cruel" punishments are prohibited by the spirit if not the letter.

quote:

---

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

---

I guess the word "excessive" influences my thinking with regard to the punishments clause even though it is only specifically used for bail and fines. To me, the application of the word "excessive" to bail or fines requires context of both the severity of the crime and the affluence of the criminal. This need for context then bleeds over into the punishment clause and adds "unusually cruel" to my understanding, even though those words are clearly not explicitly written in the amendment.


In Wilkerson v Utah (1878) the SC reaches back to Blackstone for support of the proposition that although a few criminals were tortured to death in England, the practice was unusual because most people sentenced to cruel deaths such as being drawn and quartered, disemboweled alive, beheaded, dissected in public, or burned alive were not really tortured to death when time actually came for the execution: "the humanity of the nation by tacit consent allowed the mitigation of such parts of those judgments"



It makes sense that "unusually cruel" is a moving target that will change over time. It has certainly changed since that 1878 law in which, after death, the next most severe punishment was 15 years painful hard labor.