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Phone Access During Executions?

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Because of what are said to be "botched executions," abolitionists (both those who admit they are and some who don't) are pushing for the right to have access to phones during the execution process so that they can reach judges in the event of, shall we say, incipient botching.

Should they get it?

Kent and I think not.  We are quoted in a balanced article by Jordan Rubin in Bloomberg BNA.

"If we are to have an effective death penalty, as the Supreme Court has said the Constitution allows, then, at some point, the opportunity for litigation must come to an end," William Otis told Bloomberg BNA via email.
My exchange with Mr. Rubin fleshes it out.  In my first note to him, I wrote:

The problem with allowing phone access during an execution is that it is certain to be abused without consequence to the abuser.

I respectfully disagree with the assertion that this question is not about the death penalty as a general  matter.  Death penalty opponents have been unable to convince either the public or the Supreme Court to ban capital punishment, and so they have settled on a strategy of making it burdensome, expensive and time-consuming  --  in other words, too impractical to use. 

The phone access issue is part of that abolition-by-a-thousand-cuts strategy.  Most executions occur under a death warrant that expires at a given time and date.  The defense lawyers' strategy is to lodge a (literally) last minute appeal to the court, hoping to win a stay.  If the stay comes late enough in the process, the death warrant will expire, meaning that the execution cannot be carried out at all until the issuance of a new warrant.  That in turn will create yet another litigation window, in which newly-minted (and virtually always meritless) claims will the raised, such as low IQ, newly discovered evidence (this ten or twelve or fifteen years after the fact), or deficient counsel at some much earlier stage. 

This is gaming the system.  Defense lawyers believe this is justified because "the state is trying to kill my client," but I do not agree with this argument, nor with any other features that will make simply running the clock more prevalent than it already is in capital litigation, which is far too much.

Another problem with this proposal from my point of view is that it tends to paint the condemned man as the victim, a portrayal that is easy at the moment he's strapped to the table, but misleading to the point of mendacity.  The suffering of the murder victim and the deliberate and often cruel nature of the prisoner's crime tends to be pushed entirely out of sight.

As the Supreme Court has said, executions are highly likely to involve a degree of pain, as death in other circumstances often does.  This would be too easy and too tempting for defense counsel to portray in a phone call as something greater than it is.  The subsequent excuse will be that counsel "thought" he saw writhing or gasping or some other troubling sign, even if no one else did.

The proposal of phones availability is not accurately portrayed as a limitation on access to the courts.  The actual question is whether access to the courts, which generally has been extremely generous year after year after year, has any limitation whatever.

The defense bar, in effect, would give a negative answer to that question.  I respectfully disagree.  If we are to have an effective death penalty, as the Supreme Court has said the Constitution allows (Glossip v. Gross), then, at some point, the opportunity for litigation must come to an end.

Mr. Rubin responded:

Thanks very much for the detailed reply.

Following up on your point of defense attorneys overeagerly/wrongly arguing their clients are in pain during executions, are you aware of any instances where that has happened in jurisdictions that allow phone access during executions? 

Relatedly, would you characterize the Joseph Wood execution ( http://abcnews.go.com/US/arizona-execution-takes-hours-prompts-plea-stay/story?id=24687542https://en.wikipedia.org/wiki/Execution_of_Joseph_Wood ) as an example of attorneys abusing their ability to access phones during executions? I bring up the Wood case because another commenter who will be quoted in the article mentioned it, so I'd like to give you the opportunity to discuss the case, given your criticism of phone access. 

I replied:

Cell phone access in the death chamber is such a recent phenomenon, and has so little history, that I'm in a poor position to give you an answer you could rely on.  You might want to try Kent Scheidegger at the CJLF in Sacramento.  [Which Mr. Rubin did].  I have been around the death penalty debate long enough to know, however, that defense counsel do not, shall we say, err on the side of caution in making claims in behalf of their client.  Push-the-envelope claims have become routine in defense work, particularly in capital cases.


In the last 40 years, there have been over 1450 executions in the US, and it's sure to be the case that some of them  will have had problems (just as even very secure LWOP incarceration also has problems, with inmates finding ways to kill each other). To my knowledge, though, 98% or 99% of these many hundreds  of executions have gone forward without incident.


The Wood case may be an example of a problematic execution procedure, although it's hard to tell just from a Wikipedia article, and dying people can gasp even when they are unconscious and feeling nothing.   I did see that Justice Kennedy denied the motion (which doesn't mean it was frivolous, necessarily, but does mean that it lacked persuasive legal merit).


But for however that may be, the fact that there may be isolated instances in which access to a death chamber cell phone would not be used in an abusive way does not answer the question whether they should routinely be allowed.  As I was trying to show in my first response, perfection is unattainable, in executions as in every important human endeavor (for example, the system acquits or fails to convict guilty people all time).  The question is one of tradeoff's.


Adding yet another layer of delay to a system that is already farcically larded with them, and a layer that will  provide any real assurances only in rare instances, is in my view a bad tradeoff.  According to Gallup, the death penalty has been supported by 60% or more of the public for at least 40 years.  A plurality (41%) believes it is not used often enough. This this 2016 poll.  A measure that will be employed correctly only a tiny percentage of the time, but may contribute significantly to abolition-by-a-thousand-cuts, is not the sort of public policy would be wise to adopt.  


1 Comment

Fundamentally, what right does a federal judge have to condition the state's right to move forward with an execution on cellphone access? And how is that judge going to enforce his or her order that an execution be stopped (presumably the only reason to have cellphone access)?

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