Close Calls

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

The Supreme Court giveth, the Supreme Court taketh away.

A few days ago the United States Supreme Court decided that if you’re so revolting a human as to be homosexual, you probably still ought to be able to marry whomever you want, even if it’s another faggot or dyke. It was a 5-4 decision.

(Moments earlier the court ruled, by a much clearer 6-3, that queer folk have the right to breathe the same air as the rest of us, as long as they don’t exhale in our general direction.)

This morning, in another 5-4 squeaker, the Court decided it’s okay to execute people by excruciating means because the convicts waiting on deck for their turn at lethal injection failed to show the Court a less excruciating means to kill them.

Oh, the humanity.

Justice Antonin Scalia, who considers himself the smartest of the nine justices, and maybe actually is, blasted the Court for finding a fundamental right — to marry the grownup person of your choice who chooses you back — within its interpretation of the Constitution. Scalia said you might as well find a fundamental right to marry the several persons of your choice; he may be on to something.

Scalia further found the decision a “threat to American democracy.” It’s up to the people to decide who counts as a full human being, and none of the Court’s business. You know, like it’s up to the people to decide who should be slaves (the Constitution pretty specifically defined a black guy as only three-fifths of a white guy), who should get to vote, who should get the best education, who should control a woman’s body (and a man’s, for that matter). Just one more example of the judiciary interfering with the legislatures’ rights to fascist behavior.

Scalia was careful, right from the get-go of his opinion, to emphasize that it was no skin off his nose if a man marries a man, or a woman a woman.

“The substance of today’s decree,” he wrote, “is not of immense personal importance to me.” No, he continued, “(t)he law can recognize as marriage whatever sexual attachments and living arrangements it wishes.” So just as the law may recognize same-sex marriage, it could also recognize a person’s right to marry their pet pig. Just not on Scalia’s watch. He doesn’t think he should decide such things, and in his case I’m inclined to agree with him.

Scalia also had a lot to say in the death penalty case decided today. Even the name of the case echoes the disgusting nature of American death penalty jurisprudence: Glossip v. Gross.

Oklahoma death row inmates filed this suit, not surprisingly after two of them were executed in grisly fashion which I wrote about here. After pesky anti-death penalty advocates somehow “pressured” pharmaceutical companies to stop providing two different drugs that supposedly caused too much pain, Oklahoma managed to find a third drug just as effective, though involving more screaming.

The Court seemed to be saying, you had these two other drugs, you didn’t like them, you haven’t got a better alternative, you got what you deserve.

The majority opinion capsulized the history of this country’s attempts to make execution humane, almost as though such a thing is possible.

Hanging was the preferred method of humane execution till about 1890. People literally lost their heads, or strangled an inordinate time; faces swelled, tongues protruded, eyes popped, there was shit everywhere, and all that jerky dancing went on way past giggling. Not humane enough.

Then came electrocution. Are you kidding me? Blindfolded bald guys strapped to a chair and slathered with conductive jelly, then hit with enough current to light up the small town where they were born. Bones dislocated and broken against the straps, everything swells to popping, same old shit and piss, the sound of bacon frying, sometimes he or she explodes in flame. Even the coroner is inconvenienced till the body cools enough to inspect the cooked brains. Still not quite humane.

Next up, cyanide, the kind that killed a cousin of mine. Breathe deeply, gents, the condemned are told, and it’ll go better for you. Who does that? So, extreme horror, extreme pain, unfortunate memories of all those gassed Jews. Not there yet.

Firing squad: “let’s do it” when slightly paraphrased became a nice slogan for a running shoe company.

Which brings us up to date, with lethal injection, Oklahoma ironically or not being the first state to try it on for size and still struggling to make it fit.

Justice Scalia wrote a corrosive concurring opinion to keep Oklahoma in business, with Justice Thomas signing on just for fun. Scalia and Thomas have earlier written that it’s okay to inflict a lot of pain while weeding out the criminal population, as long as you don’t deliberately intend to do it. So when pain is just an accident or an unfortunate side effect of execution, the hangman is good to go.

Scalia, entertaining as almost ever, opens his opinion with, “Welcome to Groundhog Day,” and launches what he intends a humiliating attack on Justice Breyer for his judicial impertinence to suggest the death penalty be abolished altogether.

Groundhog Day, of course, was a movie about the same day being repeated over and over. Scalia slights the lawyers of the condemned for repeatedly bringing these cases to the court, repeatedly losing, and repeatedly trying again. He doesn’t mention that this is real life, and maybe not as funny as the movie. Not funny to the condemned, of course, though in most cases probably they deserve a rotten death. But not to the lawyers, either, who may not be as comfortable as Scalia is that the United States executes people it later exonerates.

He calls the dissent a “vocal minority,” as though a swing vote is insignificant to outcome (would he say that if Clarence Thomas were a different kind of man?), and lampoons them as “waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare.”

Scalia refutes Breyer’s contention that eighteen years on average on death row is itself cruel and unusual by stating, correctly, that those years are the fault (though I like to say, to the credit) of the lawyers fighting the penalty. So kill ‘em quicker. Never mind it means more dead people later exonerated. Never mind it means the United States remains the most uncivilized civilized nation on Earth.

So, bring on the poison chemicals.

Until you show us something better, prisoners at the bar, this is the most humane method “known to human science.”

Maybe instead of looking for better science, we should look for better humans.