Some anti-death-penalty folks are all in a lather about a AP story by Julie Carr Smyth quoting CJLF President Michael Rushford on the ACLU's role in the lethal injection controversy. See, e.g., NCADP here.
One of the statements is, "They [the ACLU] were against the gas chamber 30 years ago - they said there was only one humane alternative and that would be lethal injection." It is surprising that this statement generates any controversy at all among people knowledgeable in the capital punishment debate. We commented on this history in this blog six months ago, noting that in the Robert Alton Harris case, Justice Stevens based his dissent regarding the gas chamber on the availability of lethal injection and the opinions of experts that it was the more humane alternative. We gave the citation in case anyone doubted it, Gomez v. U.S. District Court, 503 U.S. 653 (1992).
So where did Justice Stevens get his information on the expert consensus regarding the humane alternative? From the briefing submitted for Harris, of course. See footnotes 6 and 7 of the dissent. Who was representing Harris? The ACLU.
Quod erat demonstrandum.
The other statement had to do with the ACLU's drive for disclosure of the names of persons involved in carrying out the execution. Richard Dieter of the anti-death-penalty DPIC is quoted saying, "For medical personnel, yes, there may be a cost. But that's sort of like the cost that the state, or all of us, bear."
No, actually, it isn't. The cost to personnel is different in kind from the cost to the state. Anonymity for the people carrying out the execution has a long tradition for good reason. Murderers sentenced to death are very bad people and often have very bad associates. Some are members of organized gangs. Stanley Williams was the founder of the Crips. Clarence Allen arranged, from within prison, the murder of a witness to his first murder. No great leap of imagination is required to understand why the tradition of anonymity remains valid today.
The quoted statement in question is, "The ACLU, which has staked out its turf as severely against the death penalty, will use this opportunity to out someone involved in an execution, and use it to put these people at risk." Is the ACLU aware that public disclosure will put people at risk? That is nearly certain. They are very much aware of how harassment of abortion providers has impacted the availability of abortion in some parts of the country. They are surely aware that the anti-death-penalty movement, like most movements, has its fanatic fringe, such as Kathleen Culhane, who forged affidavits and believed she was doing the right thing. They are certainly aware of the threat of professional discipline action against any medical professional who assists in the enforcement of this law. They are certainly aware that many death row inmates still have connections to criminal elements outside the prison.
Back when presumptions were allowed, we used to instruct juries that people are presumed to intend the natural consequences of their voluntary acts. The instruction is history, but the logic and the knowledge of human behavior behind it remain valid. If a course of action puts people at risk, if someone pursues that course knowing of that consequence, and if the consequence furthers that person's goal, is it a reasonable inference that the person intends the consequence? Yes.
We don't know that to a certainty, of course. A full statement would have included that qualification. But people quoted in newspaper stories don't get to make full statements. Reporters call. We talk for half an hour. One or maybe two sentences get printed in the story, and we have no say in which ones are chosen. That is just the way it is.
If the ACLU really wants to safeguard the privacy and security of the execution team against the likely consequences of their current action, let them come forward with a statement to that effect and a plan to carry it out.