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Know Your Executioner

Stephen Michael West

Stephen Michael West

Meet Stephen Michael West. He is not a man I would invite to dinner at my house. He is at the vanguard of a rather interesting legal issue, though, which is why I write about him today.

Section I of this post contains a description of his crimes, because some people will want to know about the facts and circumstances of his crime and his conviction. The description of the crime itself is pretty tough stuff and if you are made uncomfortable by things like that, you can skip ahead to section II.

For now, it’s enough to know — this case asks the rather unusual question, one I am not aware of being asked before, of whether a condemned prisoner has the right to know the identity of and speak with his own executioner.

 

I

In March of 1986, when he was 23 years old, West and a fellow resident of rural Union County, Tennessee (a community located north-northeast of Knoxville), went looking for sex before their breakfast shift at the McDonald’s restaurant where they both worked. The accomplice said he knew a woman who would give them sex, and led them to the home of a family and they waited until the husband left for work. Then, the accomplice used the ruse of wanting to borrow money so he and West could gain entrance. Thereafter the mother was raped, and both the mother and the fifteen-year-old daughter were killed with guns and knives. West and the accomplice then returned to work his regular shift at McDonald’s, initially telling no one about what had happened.

So far, the story has never been in any serious dispute. Beyond those points, the picture becomes a little bit cloudier.

West made five different confessions to the police, each of which had inconsistencies with the other, and the Miranda status of those confessions were disputed (although the trial court resolved the Miranda arguments against West and the confessions were entered into evidence). Consistent throughout West’s confessions, however, was his claim that he not participate in the rapes and murders of the accomplice’s victims (though he admits he was in the house when it happened).

West has also claimed to have had ineffective assistance of counsel at his trial, which consisted of no statement at all from the accomplice, who had confessed to the rape and both killings. His trial counsel did not investigate nor seek to present evidence of a purported mental Illness caused by a history of childhood abuse. Prison doctors have diagnosed West as suffering from auditory hallucinations, major depression with psychotic episodes and paranoid schizophrenia.

Other than evidence of West’s confessions, the only other evidence put forward by the state at the trial were neighbors who saw a blue car later traced back to West’s accomplice, and a forensic pathologist who provided persuasive testimony that two people participated in the rape of the mother.

Nevertheless, West was convicted of two counts of first-degree murder with aggravating circumstances, and two counts of kidnapping, and one count of rape (forensic evidence about the sexual assaults on the younger woman was, apparently, inconclusive). Because the murders occurred within the course of the commission of the other, serious, and violent crimes of kidnapping and rape, he was eligible for and ultimately received the death penalty according to the laws of the state of Tennessee.

The accomplice was 17 years old at the time and was therefore ineligible for the death penalty under Tennessee’s laws. He is serving two life sentences. It is very, very difficult to conjure up all that much sympathy for Mr. West notwithstanding the contentions about his mental illness and his insistence that he did not actually kill the women who were the victims of the crimes committed that dark day.

West was 23 when he was involved, however he actually was involved, in these life-shatteringly awful crimes. He has spent the last 29 years in prison under a sentence of death and will, with certainty, die where he has lived functionally all of his adult life, inside a prison. The significant questions of his fate that remain unresolved are when and how he will meet that death.

 

II

Regardless of the merits of the Tennessee judicial system’s judgment of death upon him, West stands a convicted murderer and rapist and in this post, I shall question neither his legal guilt nor his moral culpability.

Most recently, his execution was scheduled for January of 2014. West yet lives; Tennessee has not been able to conduct an execution since 2009 because of legal challenges to its execution protocol. His attorneys have been among the leaders of a movement to challenge the way prisoners are executed, in the hopes of preventing the executions from happening at all.

Once upon a time, Tennessee used the classic three-drug protocol for executions by way of lethal injection. That protocol consists of intravenous injection of first 1) a barbituate, classically sodium thiopental, followed by 2) a paralytic, classically pancuronium bromide, and then 3) a lethal agent, typically potassium chloride. As one writer put it, the vulnerability to challenge of this execution protocol is:

If the barbiturate is not fully effective, perhaps because the dose is too low or the needle misplaced, the inmate may still be able to feel pain. If the paralyzing agent is then injected, the person will feel suffocated — but will be unable to move or cry out, and may even look peaceful. The potassium chloride will then cause an intense burning sensation, muscle cramping and chest pain.

It’s easy, especially for those who have read of the awfulness of crimes like West’s, to dismiss the fact that the condemned prisoner feels pain upon being executed. Our concern about performing an execution in a humane way does not arise out of sympathy for the prisoner — it is out of respect for our own laws, which prohibit the imposition of cruel and unusual punishments.

And indeed, after a rash of botched executions (example), Tennessee faced several political and practical challenges to its ability to adhere to its execution protocol. The seeming wave of botched executions in other states rallied death penalty opponents in Tennessee, who began to push for abolition. In March of 2011, the state surrendered its entire stock of sodium thiopental to the DEA in the face of a threatened seizure based on violation of importation laws; since then, Tennessee’s correctional system presently has had no supply of either sodium thiopental or pancuronium bromide.

"Old Smokey," the electric chair used by the State of Tennessee until 1960.

“Old Smokey,” the electric chair used by the State of Tennessee until 1960.

So, in September of 2013, Tennessee switched to a one-drug protocol using only one drug: a massive dose of pentobarbital. Getting the drug turns out to be a logistical challenge because most manufacturers will not sell the drug to prison systems. As a “backup,” the state adopted a law authorizing executions by electric chair if lethal injection drugs are not available, in May of 2014.

Such, then, is the present state of capital punishment in Tennessee; such, then, is the foundation for the latest round of legal challenges in which Stephen Michael West is the ostensible lead plaintiff.

 

III

Let’s be clear: West isn’t the actual intellectual or political mover here. It’s his lawyers — court-appointed, dedicated, idealistic, smart, and publicly-paid lawyers — who have been filing pleading after pleading, keeping their client alive. Everything that you will read about from this point forward in the post. on both sides of the argument, has been paid for by the taxpayers of the state of Tennessee.

The gravamen of the legal challenge pending in a Nashville court is that either a massive dose of pentobarbital or the administration of the electric chair constitutes cruel and unusual punishment. It’s a civil case, so the burden is on the plaintiffs (that is, West and his fellow condemned prisoners) to prove that the state will violate their Eighth Amendment rights.

As for the electric chair challenge — having offered proof that the state has difficulty getting pentobarbital, the defendants wanted to demonstrate that the electric chair was necessarily and unavoidably painful, sometimes not even lethally so. On July 2, 2015, the Tennessee Supremes made clear that they are having none of it: West must show that he will necessarily face the electric chair, not that he might, before they will even allow him standing to challenge this mode of execution. That, in turn, will only happen if lethal injection according to the then-current protocol is found to be unconstitutional, or if there are no drugs available at the scheduled time of execution.

Until one of those two things happens, no one gets to challenge whether the electric chair is a cruel and unusual method of punishment, because there is no chance that the electric chair will be used. It’s just there. Sitting in a corner, behind some ropes on stanchions. Looking kinda scary but not actually engaged in the act of killing anyone.

More interesting than that, though, is the claim that could trigger the ripeness of a challenge to the electric chair — a showing that the pentobarbital injection (if there ever is any) is cruel and unusual. To do that, the attorneys wanted to inspect the execution chamber, and they wanted to depose the actual executioners. In order to do that, they needed to know who the executioners were — who are the people who will actually administer the fatal dose of pentobarbital?

What the attorneys are looking for is the likelihood that the people who are administering the drugs are not qualified to do so, that they do not have any substantial medial training. Presumably, they have medical experts lined up who will say that X% of people are allergic to pentobarbital and if West is one of them, he will not slip painlessly into the arms of Morpheus before succumbing; he will fall into anaphylaxis and convulse painfully before dying or, more perversely, experience intense pain shooting through his blood vessels before dying but not be able to move and thus present the outward appearance of peace and repose to the observers. How can we really tell when someone else is actually in pain, anyway?

So the plaintiffs tried to ascertain the identities of the executioners, who they had sued as “John Doe Executioners 1-100” and the state resisted giving this information. Initially the trial court indicated that it would be amenable to having that information circulated just among counsel, with counsel under orders to keep the identities of the executioners secret. Then, the state reached a deal with the attorneys for the prisoners that, if the executioners were to be called to testify, they would do so behind a screen and with their voices disguised. This was also good enough for the trial court. And it was good enough for the appellate court.

But it wasn’t good enough for the Tennessee Supreme Court, which said no, Mr. West, you don’t get any executioner information or testimony at all, because the prisoner has brought a challenge to the protocol on its face. Presumably, the trial is to proceed as though the drug will be administered by the most-qualified person possible — a top anesthesiologist, perhaps. Of course, that in all probability isn’t who will be doing it. It’s not certain that the executioner is a doctor at all. Does that matter?

Seems to me that it does. An anesthesiologist can be presumed to have training, experience, knowledge, and skill that a lesser-qualified person — a general-practice doctor, a paramedic, a phlebotomist, a prison guard who took a first-aid class — would not. If there is any reasonable medical chance that a large dose of this drug would cause discomfort in the specific person of the condemned, then if we take the notion of not imposing cruel and unusual punishments seriously we must use someone to administer this poisonous dose of barbituate in a way that will not induce that response. A phlebotomist probably doesn’t have enough medical knowledge to do that.

Now, the state’s argument is that barbituates are pleasant to take, and the dose is so large that there is no doubt about even the tiniest potential for survival or sensation. Maybe that’s true, and presumably they have a medical expert who will so testify. Does everyone, uniformly, react that way to a massive intravenous dose of barbituate? I don’t know and I bet most doctors would hesitate to say that this would be a uniform reaction.

Against that, the Supreme Court said the privacy concerns of the executioners must prevail. Were their identities to become known, even inadvertently and innocently on the part of the attorney who disclosed that information, those people would be subject to retaliation and harassment by the families of the condemned and the general public.  Other states, the Court noted, protected the anonymity of their executioners and debatably, the Tennessee Legislature signaled its preference that executioners be given the benefit of performing their jobs anonymously.

So even if the executioners are not top anesthesiologists, we may not know. It could be that the plaintiffs need to make a factual showing that in the hands of an unqualified administrator, these drugs have the potential, in the doses contemplated, to cause pain. And in that case, the state would have to demonstrate how it had a precaution to avoid or mitigate that circumstance — presumably with medical personnel involved.

But that hasn’t happened yet; maybe it’ll turn out that the plaintiffs can demonstrate this as a matter of fact but they’ll have to do it without the executioners or any knowledge about them.

 

IV

Make no mistake about the objective: the goal here is to stop the execution from happening at all. The method here is to make the execution as difficult as possible for the state to perform. Make it hard for the state to get the drug. Make the state prove that the drug is absolutely 100% foolproof. Make the state find someone with rare qualifications to administer the drug, and then persuade all such people not to do it so the state can’t find an executioner. And cost the state as much money as possible along the way.

I think it’s a chump’s game at this point. Stephen Michael West has lived functionally his entire adult life in prison and will do so for the rest of his life. We call this “justice” and if, as I have chosen to allow unchallenged, he is truly guilty of the crimes for which he has been convicted, I’m going to say that yes, that is justice.

What’s going on now is a complex legal dance in and out of the rules of civil discovery and touching on issues that are perhaps best left alone. Would confronting your executioner be something you would want to do in the hopes of persuading him not to go through with it? Is there some measure of comfort in having the executioner be anonymous (and possibly unseen) at the time of life’s end? These are morbid matters that inspire at least small measures of dread and terror, and they need not be.

Nor need we go through the expense. Leave aside the issue that the current state of affairs forces very talented lawyers to intentionally gum up the workings of the justice system simply to stall for time, and the perversity involved in such an endeavor. Isn’t life in prison punishment enough for anything? I see no cause for mercy in West’s case for the now thirty-year-old crime; but I hardly consider life in prison to be “mercy.” Insisting on killing the man will cost Tennessee much more money than whatever public benefit it claims it might achieve. Let the executioners remain anonymous; let them go home and not ever hear a call to their grim duties. Save money, save time, save effort, and devote those resources to other, better places, like preventing future crimes.

 

Feature image: Public domain, sourced from wikimedia commons. Mug shot of Stephen Michael West taken by Tennessee Department of Corrections, no copyright on government works. Picture of Tennessee electric chair, nicknamed “Old Smokey” by prison guards from the 1950’s, creative commons licensed sourced from wikimedia commons. Note that in 2014, Tennessee caused a new, different-appearing electric chair to be created which was exhibited to the media after Gov. Haslam signed the law reinstating use of the device; I have found no non-copyrighted pictures of that newer chair.

 

Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California and the managing editor of Ordinary Times. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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52 thoughts on “Know Your Executioner

  1. I think we should have the governor of the state that administers the execution actually be the one to do it, and the President in the case of federal crimes, that way Rick Perry would have been able to put his money where his mouth is and prove to the world that he’s not the distant, tough-talking coward that I suspect most Southern conservative politicians are.

    That being out of the way, I’m not against the death penalty in principle but in practice; the biggest problem for me is with how we’ve disowned the seriousness with which we ought to take the death penalty with sanitized language and detached, bureaucratic procedure. If you’ve read my comments on other posts this week, you’ll find that the death penalty isn’t the only topic about which I feel this way. When we take a life, the most serious thing we could do, we should use as unsanitized, visceral, and real language as possible to describe it, in order to fully appreciate the seriousness of what we’re doing.

    Also, I’m curious, I always read these stories about convicted murderers given the death penalty waiting thirty years on death row or whatever. Has anyone ever considered that there is a right to swift execution? Do we owe those convicted as well as society that? It seems like having someone wallow in bureaucratic hell is a waste of court and public resources, grossly unfair, and a prolonging of what we have already determined to be justice.

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    • I think we should have the governor of the state that administers the execution actually be the one to do it, and the President in the case of federal crimes…

      If we have to have the death penalty, which I oppose, I favor inert-gas asphyxiation for exactly this reason. No medical training required, anyone can do it so long as the prisoner is mildly restrained. Heck, for a while you could buy do-it-yourself kits on the Internet — a plastic bag with a pull string to tighten it, a tank of helium with a pressure regulator, and some plastic tubing. My preference would be that the prosecutor who seeks the death penalty should be the one who does the deed.

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    • Then any given election becomes a referendum on the death penalty as well. The candidate who says “I will not pull the lever on old sparky, because we just don’t know!” will be going up against the guy who says “I will pull the lever on Dylann Storm Roof and I will look him in the eyes as I do so.”

      Reporters will ask questions like “Seriously? You wouldn’t even pull the lever for Dylann Storm Roof?” during the debates.

      Maybe the society has changed since the Bush-Dukakis debate. Maybe it has changed enough that the anti-death penalty guy would win the election.

      But I rather expect to hear explanations like “we had to field a candidate who supported the death penalty because we wanted to win the election and do the good that we could do until the culture changed” if we institute this policy.

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    • It seems like having someone wallow in bureaucratic hell is a waste of court and public resources, grossly unfair, and a prolonging of what we have already determined to be justice.

      Fans of expediting the death penalty and speeding it up have adopted the slogan “Justice delayed is justice denied!”

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  2. While one part of me thinks it would be good to force us all to view and own an execution, there is a part of me that recalls the history of how public executions were a favored afternoon entertainment.

    In the current political climate I suspect that candidates would fall all over each other trying to conjure up the most sadistic torture possible.

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  3. As always very interesting but it could use a proofread. What was done to the mother and daughter? verb missing.

    Accomplice, to me, generally connotes an individual who is not the principal perpetrator. Since the juvenile apparently committed the rapes and murders, I would characterize the juvenile as the principal and Mr West as the accomplice. And since he’s facing the death penalty, I think it would be helpful to know what specific acts the State eventually proved that he did commit.

    Your lead-in is a little misleading in that you state that question is “whether a condemned prisoner has the right to know the identity of and speak with his own executioner”. But the actual question is whether the prisoner’s counsel has that right. This is one of the rare cases (national security being the other area that immediately comes to mind) where the attorney gets to learn certain information but is barred from conveying it to his client.

    Facial vs as-applied challenges are one of those legal niceties that drive me crazy. Was this a strategic decision by counsel to file a facial challenge only, waiting to bring the as-applied challenge once the execution date is set and the execution team selected? That seems a very risky move, because the State may now have an argument that the prisoner has waived the argument by not bringing it in the earlier litigation.

    Putting aside my bias against the death penalty, what an incredible waste of judicial resources to leave the as-applied challenge for a second round of litigation. But wasting time is precisely what the plaintiffs want to do. (It’s the rare area of litigation where the plaintiff wants the judicial system to move as slowly as possible.)

    Substantively, the State created this problem by medicalizing the execution. We’ve gone from the hangman to the firing squad to the electrician to now a nurse? The guillotine might be incredibly gross, but it would seem to me (based on no research whatsoever) quick and fool-proof.

    (I lived in France for a while when I was young. I have a distant memory of watching a movie loosely based on the life of one of the last people executed by guillotine. The movie ended on the execution scene. There were three executioners, two to drag the man (who was tied to a chair) to the device, and one to loose the rope that held up the blade. Since I saw that movie something like 35 years ago, one can see that it made quite an impression.)

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    • Fixed the grammar; of course the mother and daughter were killed as we are discussing murder.

      I believe the current fashionable proposal is nitrogen gas — it’s supposed to put the subject to sleep through gradual oxygen loss and then suffocate him while he sleeps. As with all supposedly humane forms of execution, my response to that is, “What could possibly go wrong?”

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      • What kinds of values of “go wrong” are you wondering about? I’m on your side about the death penalty, counselor, but consider these points.

        Cruel? The Air Force studies hypoxia as a normal job risk; there is a small chance of convulsions after loss of consciousness, but this is apparently quite rare. The safety materials and training classes for handling nitrogen — I went through a training class for a summer job — harp, over and over and over that other than perhaps a bit of dizziness, there are no symptoms before you pass out. This is the reason that, in terms of annual deaths, nitrogen is the most dangerous industrial gas around. They’ve had plenty of chances to interview survivors; it doesn’t hurt.

        Reliability? Put a pulse-ox sensor on them; 30 minutes with no pulse and blood-oxygen below X and they are dead. Period. No chance of error.

        Availability? Pick a metro area — you can go buy tanks of dry nitrogen or cryo containers of liquid nitrogen. It’s too necessary an industrial gas to think about it ever not being on the market. I mentioned a summer job — we were a State of Nebraska facility and bought many tanks every summer. Worst case, someone like me knows enough to buy off-the-shelf stuff and seperate nitrogen in adequate quantities.

        Mechanical reliability? The standards are ridiculously low. Standard practice is never transport liquid nitrogen by elevator. If you have to, practice is to use an elevator that you can block out intermediate destinations, put the container in the elevator at the starting floor, let the car go to the destination with no people in it, remove the container. The integrity of an elevator car is more than good enough for a nitrogen-asphyxiation gas chamber.

        Inert-gas asphyxiation is closer to quick, painless, and fail-safe than anything in use today. I hate to write this, but part of me was hoping that the SCOTUS would push Oklahoma into using it so that those facts were demonstrated.

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  4. This is why I enjoy mocking liberals about the death penalty. They pursue spurious claims then complain that the death penalty is bad b/c it takes too long and is expensive.

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  5. Serious question that just occurred to me while reading this. Could the state use eminent domain to seize pentobarbital? Could the state set up manufacture itself? It is simply a chemical compound, I am sure the state has a lab somewhere that could put it together.

    Otherwise I am generally of the same opinion as , minus the governor doing it. I don’t think it would help with the debates.

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      • I am guessing that the drug is actually heavily regulated by the FDA/DEA, as I can see all sorts of small companies rushing in to make it and provide it. I would think that the next problem would be because the amounts would be so small (doesn’t take that much to hot shot someone, and there really aren’t that many executions,) not that many companies would set up just to produce one drug and breaking into the industry is not easy.

        But is it really socialism if the state isn’t making it for sale, and in fact is the only provider? As those socialism haters still need tar and asphalt…

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        • This. If it’s still under patent, then simply no way. If not, then there are all sorts of hoops for a generic manufacturer to jump through. Have you done bioequivalency testing? Does your production facility conform to FDA spec? Has it been through the necessary periodic FDA inspections? Are your raw materials FDA certified?

          Per the discussion upstream, it would almost certainly be cheaper and faster for a group of states to go through the SCOTUS and get inert-gas asphyxiation blessed than it would be to produce their own drugs.

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      • I’d actually love to see this turn into a political football, if only to see conservative politicians falling all over themselves to promote state control of industry. Or alternatively, to watch their heads explode at having to choose between no death penalty and state control of industry.

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    • Sure, but that creates another problem: the first time a state does that, the manufacturer simply says “All righty, then, no more sales at all in the United States or to any U.S. customer period” and now the drug is totally unavailable for therapeutic purposes.

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    • The standard process used in all capital cases in Colorado typically takes a bit under ten years, is largely independent of whether the defense attorneys are sleazy or otherwise, and costs upwards of $1.5M (all reasons why it’s seldom pursued). Back at the beginning of the proceedings, the defense offered a guilty plea in exchange for life without parole. The DA decided to spend the state’s money and try for the death penalty, which is why we’ve just gotten to the guilty verdict after three years. There’s still some chance that the jury will decide on life without parole instead of death.

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        • The state picks up the costs, as very few of our 64 counties could afford it. The number comes from the legislature’s Joint Budget Committee staff, from the analyst handling the AG’s budget, back when I worked there. The money pays for a whole lot more hours on both sides, plus added investigative and lab expenses, compared to non-capital cases. In the Holmes case, which has largely been a matter of dueling experts, the state is picking up the tab for all of that.

          The DA in the case has sometimes been described as a rising star in the state Republican party. Many people expect that he will try to leverage the publicity from the Holmes case into a nomination for the US Senate seat that’s up this year.

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  6. Thanks for the post, Mr. Likko. That’s interesting.

    I only have an Off Topic thing to say:

    I’m guessing here, but it seems to me that there is a non-insignificant number of people who are:

    – pro-life AND pro-death penalty

    and there is also a non-insignificant number of people who are:

    – pro-choice AND anti-death penalty

    However, I am unsure of how many of each, but there are lots, to be sure. In general, I’d lump conservatives/Republicans and most libertarians in the first group; and liberals/Democrats and some libertarians in the second group, but that’s just me categorizing things.

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    • Not only are there lots of each, but I have seen essays from both positions expressing incredulity that the other position could exist. Like, they understand how someone might be anti-both, or how someone might be pro-both… but someone who is pro-one and anti-other (as opposed to a reasonable anti-one and pro-other)??? That is just so crazy! Can you believe it???

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      • You see, I’m a weird one. I’m pro-choice and pro-death penalty.

        We’re just using the death penalty on the wrong people. The herd needs to be thinned much more deeply and much more often. Particularly at the top.

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  7. This was a fantastic post, Burt.

    As to the single and rather large question at hand, I remain somewhat dubious (despite being pretty anti-death penalty).

    I know that incarceration and execution are different things, but still this question niggles at me: Had West been convicted of 2 life sentences like his accomplice was due to age, mercy, or different laws at the time, would we have allowed him to hold off incarceration until all the people who might have oversight of him in the penal system were thoroughly vetted by West’s attorneys? If there are a personnel change at the prison at a later date, would we allow his incarceration to be suspended until such time as those new employees could be properly vetted by West’s attorneys?

    We wouldn’t, I think, and what’s more I think we’d find the notion deeply ridiculous. We would instead say that the degree to which prison employees were or weren’t qualified was a separate issue, and one that needed to be dealt with completely unattached to the issue of whether or not West should be incarcerated.

    All of which is to say that I think even though we’re all wanting to say that we are looking at this issue in a dispassionate way that has to do with things other than our opinion of the death penalty, I’m not sure that we are.

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    • I don’t see another way to check the qualifications of the law’s agents in this case, though. For a prison guard or some such, we can reasonably expect that a mistreated prisoner will sue or otherwise complain, and qualifications will be dealt with in that way (this might not be a valid expectation, but it seems reasonable). In a death penalty case, I don’t see another opportunity to examine the qualifications of those administering the drug. I suppose if the execution were botched to the point that the prisoner survived they might respond in court, but I don’t feel we should rely on such circumstances.

      I also feel like there are cases where the qualifications of prison guards, arresting police officers, or others involved matter during the trial or appeal, but for some reason I can’t think of any.

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  8. People are talking about making a Mars colony more feasible by making the first few iterations of the trip one-way only. Saves enormously on fuel costs and enables you to take a lot more on each trip.

    Seems to me like we’ve got the makings of a halfway decent penal colony system again.

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