Of the many “issues” arising in the context of criminal law, none bears the scrutiny of execution.  While there is suffering for mistakes in every aspect of the law, and certainly in every aspect of the criminal law, there is no going back after a life is taken.  And so the grand “we,” lawyers, society, courts, treat it with a degree of solemnity and seriousness that’s given nothing else.

Or not.

Via Jeff Gamso, a decision by Southern District of Ohio Judge Gregory Frost cuts to the chase:

It is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not. This is nonsense.

Thoroughly parsing the opinion for its revelation that the State of Ohio takes its death protocols very seriously, unless there’s an impediment such as the unavailability of drugs, a hole in their racket or the sun’s in their eyes, in which case they just do something else, whatever they happen to come up with at any moment.

Ohio’s execution policy now embraces a nearly unlimited capacity for deviation from the core or most critical execution procedures. No inference is required to reach this conclusion, much less the stacking of inference upon inference. Rather, as set forth below, simply paying attention to the hearing testimony mandates this conclusion. These core deviations are not mere cosmetic variations from an optional or even aspirational set of guidelines. Rather, the deviations are substantive departures from some of the most fundamental tenets of Ohio’s execution policy.

More words than needed to state what became obvious, and indisputable, to Judge Frost, that the state does whatever it has to do to execute people.  They put on a show to pretend there is a formal protocol of the sort that will pass constitutional muster, to appease the nine in Washington who allow the show to go on, but the reality is that it’s nothing more than a show.  Ultimately, the only thing that matter is that, at the end of the show, there’s a dead body.

So what, you say?  That’s what the executioners in Ohio say too, so you’re not alone.  After all, there’s a paper that says somebody gets executed, and as long as the guy is dead by the end of the show, what different does it make if a few lines are ad-libbed?  Dead is dead.

A death warrant cannot trump the Constitution.

That latter document is not an inconvenience to be worked around or ignored. It is the most fundamental expression of the principles, rights, and obligations that define this country, and no governmental actor should ever disregard its dictates and prescriptions in this or any other context to fulfill any sense of perceived duty. It is wholly lawful to execute capital inmates. It is wholly unlawful to even attempt to do so in a manner that violates the Constitution.

The irony appears not to be lost on Judge Frost, that those putting another human being to death for violating the law are violating the law themselves.  But Judge Frost’s words put us on a very dangerous and slippery slope.

That latter document is not an inconvenience to be worked around or ignored.

We don’t get to the point of execution by accident, but by a process fraught with pretense at a thousand points.  And even when execution may not be the end result, the same holds true.  A few facile words, like “furtive gestures” or “totality of the circumstances,” allows law enforcement, prosecutors and eventually courts to leap over the details of that “latter document” and pursue conviction and sentence.  We do it all the time.  They do it all the time.  And we don’t fret too much about it.

“The ends justify the means” is a apt expression of how we get from a chance encounter on the street to a prison cell, or a gurney.  There was nothing to stop judges over the past couple of centuries plus from holding the requirements and safeguards of the Constitution to mean what they say, but thousands upon thousands of decisions hold otherwise. 

There are the big decisions, such as the ones that allow death to be imposed, but there are also the multitude of decisions in little cases, that no one ever hears about and never make a big splash, where almost by whim monumental holes are filled with a judicial shrug.  A judge, faced with the unpleasant business of conflicting testimony, where an agent mouths the routine words that allow the prosecution to proceed and the evidence to come in, is forced to make a choice. 

Does he “go with the flow,” or decide to take an unpopular stand, make the case an issue and call the agents out?  Every work day, a thousand times a day, a judge just lets it pass, knowing that he’s just condemned another person to the hell of prosecution, conviction and sentence despite that “fundamental expression of the principles, rights, and obligations that define this country.”

As it spills out of Judge Frost’s decision on the death penalty, where scrutiny (albeit invariably far greater post hoc than while the process proceeds in the first place, where so many improprieties could have been avoided if anybody gave a damn before the verdict was pronounced) is at its highest, one can’t help but recognize that the rest of the legal system is replete with a Constitution viewed as an inconvenience to be worked around or ignored. 

In the quiet and majesty of courtrooms and chambers, judges make the decision to not do what Judge Frost did here, to make a big stink about the reality that the practical application of our Constitution is all about letting things slide, going with the odds that the state is right and the defendant is guilty, and saying the magic words that allow case after case to slide around the Constitution.

Perhaps Judge Frost’s decision tells us that this system does work?  After all, he’s called out the state for making a sham of its protocols.  He wouldn’t accept that nod and wink of the executioners, that it’s really no big deal, since the guy who is supposed to end up dead ends up dead.  Then again, ignoring the Constitution isn’t enough of an issue to command a decision like this until it reaches to the point of dead bodies. 

Whether the judiciary, even Judge Frost, will decide that it’s time to start taking the Constitution seriously in other cases, to risk upsetting the system by not smoothing the path to conviction by circumventing that most inconvenient of documents, is the question faced in every case.  But if they can’t get death right, there is no chance they would care enough to get it right otherwise.