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Boat People

In April 1975, as the North Vietnamese and Viet Cong closed in on Saigon, President Gerald Ford called together key officials of his administration and asked them to plan and implement an evacuation of Americans, South Vietnamese who had worked with Americans, and others from Saigon. Ultimately about 138,000 Vietnamese were evacuated, and about 130,000 of them were resettled in the United States.

Resettlement camps were set up at four military bases around the country, one of them at Fort Indiantown Gap, not far from my home town. The refugees were resettled from the military bases to all 50 states. I remember that my little town suddenly had more Vietnamese restaurants than movie theaters.

The Communist Vietnamese government initially engaged in what was called a “velvety transition.” But before long, the government started sending mass numbers of South Vietnamese to “re-education camps,” worked vigorously to stamp out all vestiges of private enterprise, and cracked down on dissent. People began to flee.

Flight escalated to exodus: in September 1978, a ship named the Southern Cross unloaded more than 1,200 Vietnamese people on an Indonesian island. The peak of the exodus was June 1979, when 59,000 Vietnamese people landed on southeast Asian shores – the Philippines, Indonesia, Malaysia, Hong Kong, Thailand, and other countries.

Although many of the initial wave of refugees traveled on large ships, southeast Asian nations started refusing landing to those larger vessels, leading subsequent waves of refugees to evade authorities by using small, overcrowded, dangerously leaky boats. The refugees became known as “boat people.”

The United Nations convened an international conference to deal with the refugee crisis, and, in July 1979, the United States and other western countries agreed to increase the number of refugees they would accept. In just four years, 623,000 Vietnamese refugees were re-settled in western countries, the majority coming to the United States, Australia, France and Canada.

I don’t remember any great American popular resistance to accepting Vietnamese refugees, either in 1975 or in the 1979 to 1982 period. I remember public officials expressing compassion – in particular, I remember the Republican governor of Iowa, Robert Ray, remarking to the effect of, “we are all boat people,” invoking America’s immigrant heritage, as well as the desperate circumstances of many of our immigrant ancestors.

In an important respect, our country has changed for the worse since the 1970s. Central American children are coming to our southern border in search of safety. Boys and girls as young as seven years old are traveling unaccompanied 1,500 miles or more to get away from gang warfare and other violence, coming to our border in hopes of saving their lives.

Their numbers are not huge – at last count, 52,000 kids had arrived since the wave began in 2012. That is almost exactly the number of American orphans adopted by American families each year; the total number of adoptions by American families per year is about 120,000. Ironically, many American families looking to adopt travel to the very same countries that these kids are fleeing, especially Guatemala.

The waves of Vietnamese refugees were perhaps more closely and obviously connected to American actions than the Central American refugees are. But make no mistake: American actions in Central America are far from blameless, including specifically as it relates to this refugee crisis. At one time or another, American interests made most Central American countries into banana republics. We installed or backed autocrats, we exploited people and resources, and we sent arms or even soldiers.

In 2008, we enacted a law that provided for an asylum hearing before deportation of any child from a country not bordering the United States. We enacted that law in reaction to child trafficking, one of the most despicable practices every concocted by humans.

But now it has become inconvenient to house and feed children while they wait for their hearings. So the cry has gone up to repeal the 2008 law. The cry has gone up to deport these children now, to refuse them entry at the border, to send them back into the desert they crossed to get here. The cry has gone up: “What part of ‘illegal’ don’t you understand?”, as if children need legal justification to flee for their young lives.

Many of the people letting loose these cries wave the American flag, surely one of the most insulting invocations of patriotism in recent history. Many of these folks also invoke Jesus Christ – the same Jesus Christ who demanded that his disciples “let the little children come to me”; who preached that if a man forces you to walk one mile with him, you should walk with him a second mile, and if a man steals your coat you should also give him your shirt.

Other than Native Americans, we all immigrated from somewhere else. “The law is the law” makes a nice slogan, but it also makes a convenient substitute for thought and an excuse for appalling callousness. We are indeed all boat people. Let the little children come to us.

Let the Little Children Come to Me

Murrieta, California, takes its name from two Basque sheep ranchers, the brothers Esequial and Juan Murrieta, who bought and worked 52,000 acres of meadow land in the late 1800s, roughly half-way between Los Angeles and San Diego.

Murrieta enjoyed a boomlet from 1882 to 1935, the lifetime of Murrieta’s passenger rail service, as tourists came to visit nearby hot springs. After rail service ended, Murrieta was a sleepy small town, housing just 2,200 residents as late as 1980. Then Interstate 15 was built right through Murrieta, and the population topped 100,000 by 2010.

Now a small city, Murrieta remains a conservative bastion, known for its anti-gay, anti-immigrant, anti-Muslim views. The population is 55 percent non-Hispanic white and 26 percent Hispanic, with significant African-American and Asian-American minorities. As close as it is to the Mexican border, and with California’s liberal policies on immigration, the non-Hispanic white population no doubt concerns itself about shrinking to minority status.

Murrieta is home to the Calvary Chapel Bible College, an unaccredited institution founded by the  late evangelical pastor Chuck Smith. Smith was one of those who attributed the 9/11 attacks to divine revenge for America’s tolerance of homosexuality and abortion.

Earlier, Smith had predicted that the world would end with the second coming of Christ, before the end of 1981. On the very last day of the year, New Year’s Eve 1981, Calvary Chapel held a service for the congregation to await the fulfillment of Smith’s prophecy. Of course, 1982 checked in right on schedule, but as it is ever with false prophets, Smith continued unhumbled for 30 more years.

The recent surge of unaccompanied children illegally crossing into the American southwest has been widely reported. Children caught illegally immigrating are treated differently than adults; deportation of unaccompanied children is too cruel even for American immigration policy.

But it is not too cruel for Murrieta, California. As facilities have filled, and conditions deteriorated, federal officials have begun flying and busing children to facilities elsewhere. Buses carrying 300 illegal immigrants to Murrieta were blocked Tuesday by a mob of white, flag-waving Murrietans, evidently with the full support of Murrieta’s elected leaders. In the showdown between the mob and the buses, the mob won, and the buses turned around and headed off to San Diego.

There were counter-protesters on hand, an ethnically mixed crowd preaching love and care for the children, contrasting starkly with the all-white anti-immigrant protesters, faces blazing with hate, waving the Red, White and Blue.

I obviously have no idea whether any of the protesters expected the second coming of Christ in 1981, or expect it still, but I do think many of them could pay more attention to the words of Christ his first time around.

It’s one thing for a country of immigrants to give hostile treatment to adults who come here looking for a better life. But people who want our government to stop children at our border and send them back into the desert have lost something important: they have lost empathy; they have lost compassion. Let the little children come to us.


The Tenth Shall Be First

The federal Court of Appeals for the Tenth Circuit today rejected Utah’s prohibition against same-sex marriage. After a long series of federal trial-level decisions rejecting same-sex marriage bans, this was the first federal appellate court ruling on the question since the Supreme Court struck down the Defense of Marriage Act last June. The name of the case is Kitchen v. Herbert.

The decision was not unanimous. Judge Paul Kelly, a George H.W. Bush appointee, would have upheld the same-sex marriage ban. Judges Carlos Lucero, a Clinton appointee, and Judge Jerome Holmes, a George W. Bush appointee, out-voted Judge Kelly.

In addition to Utah, the Tenth Circuit covers Colorado, Kansas, New Mexico, Oklahoma, and Wyoming. New Mexico already permits same-sex marriage, so today’s decision makes no change there. Even in the other five states, change will have to wait – the court stayed its ruling pending possible review by the U.S. Supreme Court.

The losing defendants, the governor and attorney general of Utah, have 90 days to ask the Supreme Court to consider the case. Opposition papers are then due 30 days later. The Court can decide whether to hear the case any time after that.

Although public opinion in Utah has shifted dramatically this year, and even the Mormon church has softened its opposition, a majority still oppose same-sex marriage. Therefore, unlike Pennsylvania’s Republican Governor Tom Corbett, who chose not to appeal when his state’s marriage ban was struck down, I expect that Utah’s Republican Governor Gary Herbert will appeal.

But I don’t think the Supreme Court is going to be in any hurry to consider this case. Justice Anthony Kennedy, in his majority opinion in the DOMA case, promised that the DOMA decision did not pre-determine the outcome of the same-sex marriage issue. In his dissenting opinion, Justice Antonin Scalia pilloried that disclaimer, and of course Justice Scalia was right. I think Justice Kennedy is going to want to have more than one court of appeals decision on his side before he goes there.

In any event, the Supreme Court often decides to get involved only where there is a “conflict in the circuits” – meaning different outcomes from different federal courts of appeals. Cases are already pending in five other courts of appeals – for the fourth, fifth, sixth, seventh and ninth circuits. I would expect the Supreme Court to put the Kitchen v. Herbert decision on hold for awhile, to see how some of the other courts of appeals rule.

I’ve argued that a short delay in Supreme Court review would be in the interests of marriage equality. The Court tends to enter into the big social issues only as the country is nearing consensus. I’ve pointed out that the Court did not strike down bans on interracial marriage until only 16 states still had them, and did not strike down sodomy laws until only 14 states still had them. As of now, 31 states still ban same-sex marriage.

Another Tenth Circuit case, from Oklahoma, was argued on April 17. A Virginia case was argued in the Fourth Circuit Court of Appeals on May 13. Cases from four states will be argued on August 6 in the Sixth Circuit: Kentucky, Michigan, Ohio and Tennessee. And an Idaho case is tentatively scheduled for argument in the Ninth Circuit during the week of September 8. State court litigation is also pending in a number of states.

Today’s decision was a little on the fast side for federal appeals courts – only 76 days from argument to decision. If some of the other cases take longer to decide, it could easily be January or February before the Supreme Court decides whether to consider the same-sex marriage issue. At that point, it may not be possible to get briefing done and argument scheduled in time for a decision before the Court adjourns for the summer of 2015. That would put the decision off to the the 2015 – 2016 session, which I think at least several justices will want to do, and which I think will enhance the chances for success.


Republicans Attack Another Demographic: Veterans

Angry that most veterans’ groups refused to join his call for the resignation of the head of the Department of Veterans Affairs, Republican Senator Richard Burr last week wrote a remarkable open letter to America’s veterans. He said that leaders of those veterans’ groups are “more interested in their own livelihoods and Washington connections than they are to the needs of their own members.”

Senator Burr elaborated: those leaders “appear to be more interested in defending the status quo within VA, protecting their relationships within the agency, and securing their access to the Secretary and his inner circle” than in “gaining access to care” for their members.

Today’s New York Times reported today, “The Veterans of Foreign Wars, the Disabled American Veterans and the Paralyzed Veterans of America hit back hard.” One organization promised to “inform our members and our constituents of the repeated failure to act by our elected officials” – which certainly seems like a threat to go after Senator Burr at the next electoral opportunity, which happens to be 2016. One organization pointed out that Senator Burr had actually skipped the part of the Senate hearing that included testimony from the veterans’ groups. One organization accused Senator Burr of opting for “cheap political attacks” instead of “pursuing policy solutions.” One group pointed out that its staff accounts for 47 combat deployments – underscoring the fact that Senator Burr has no military experience.

Senator Burr’s view appears to be that problems at Veterans Affairs are entirely the fault of President Obama and his secretary of veterans affairs, General Eric Shinseki. But the veterans’ groups don’t see it entirely that way. The legislative director of the Paralyzed Veterans of America lays the blame on “insufficient resources that this administration and previous administrations have requested” but Congress has failed to provide. Just last February, Republicans in the Senate, including Senator Burr, successfully filibustered a Democratic effort to bolster the VA’s resources. That effort was led by Democratic Senator Bernard Sanders, who pointed out that the VA’s patient load had grown by 1.5 million in the last two to three years, 200,000 of whom suffer from post-traumatic stress disorder and traumatic brain disorders.

Critical to the debate is that today’s Republicans would love to dismantle the VA, which after all stands as surely the finest example of public health care in the United States. Republicans would love to send veterans out into the private sector to get their health care. But veterans’ organizations aren’t wild about the idea. They are concerned that the VA’s expertise in specialized medical care for spinal cord injury, blindness, amputation, brain trauma and PTSD are not easily matched in the private sector. As the legislative director of the Disabled American Veterans put it, “Simply giving a veteran a plastic card and wishing them good luck in the private sector is no substitute for a fully coordinated system of health care.”

Taking on veterans’ groups – on the Friday before Memorial Day! – seems an odd tactic for Republicans, who have for decades positioned themselves as the party that honors military service. So it’s a mark of how strongly Republicans feel about public health care that they would use the issue as a basis for an assault on groups with names like Paralyzed Veterans of America.

But I wonder if there might be another force at play. I’ve been unable to find racial demographics for veterans broken down by period of service, but I think it’s pretty clear that military service has been transformed from a white institution during World War II to a much more heavily African-American and Latino institution during the three wars in Iraq and Afghanistan. The VA’s web site compiles data that supports this.

The VA projects that the total number of veterans will drop from 23 million in 2010 to about 14.5 million on 2040. (Obviously this projection depends on some assumptions about how many new veterans we create between now and 2040.) During that time, non-Hispanic white veterans will decrease from almost 18 million to about 9.5 million. Non-Hispanic African-American veterans will also drop, but much less – from 2.6 million to 2.4 million. But Hispanic veterans will actually increase from 1.3 million to 1.7 million. Other veterans, including Asian-American, native American, and Pacific Islander, will also increase, from about 800,000 to about 900.000.

All told, the veteran population will shift from nearly 80 percent non-Hispanic white in 2010 to about 66 percent in 2040. This reflects the change in military demographics since World War II. Combined, veterans of World War II and the Korea War total less than 15 percent of the veteran population now, diminishing essentially to zero by 2040. Veterans of the Iraq and Afghanistan wars will outnumber Vietnam veterans in the next year or two, and will make up more than 55 percent of all veterans by 2040.

Today’s Tea Party-driven Republicans seem to have written off African-Americans, Latinos, Asian-Americans, lesbians and gay men, and urbanites. On Memorial Day, I wonder if Republicans are getting ready to write off America’s veterans.


Things Change: From Man Purses to Tattoos

My spouse and I just got back from two weeks in Italy. It was our fourth vacation there - I’ve spent more time in Italy than any other country except the U.S. and Canada. Italy has the artistic, architectural, cultural, culinary, oenological and historical appeal of France, without the sniffing superiority.

The last time I was in Italy was three years ago. The fad then was man purses. They were like shoulder bags, except smaller and thinner, and usually square or close to square, not rectangular. They were worn with long shoulder straps, so that the actual man purse rode at belt level on one side of the back.

It was one thing to see slender young Italian men wearing man purses, with their slim-tailored shirts and leather shoes. But the fad had crossed into Slovenia, and it was quite another thing to see strapping Slavic jocks walking around Ljubljana with man purses slung over their shoulders.

Three years later, man purses have largely disappeared. A lot of the young Italian men have bulked up with weight-lifting, which is fine. They’ve also gone for spare-no-body-part tattooing, which is less fine.

Another change I noticed was a substantial influx of immigrants from Africa, the Middle East, and South Asia. This of course is a historic reversal for Italy, which was traditionally a country of emigrants, not immigrants – half or more of Argentines are descended from Italians, and some towns in Brazil are as much as 95 percent Italian. To this day, more than a million Americans speak Italian at home. Italians also emigrated in large numbers to Australia, Canada, France, Peru, Switzerland, Uruguay and Venezuela.

While I was in Italy, I read an estimate that 850,000 people, mostly from Africa and Syria, had gathered in Libya looking for a way across the Mediterranean to Italy. The country has seen an increase in far-right anti-immigrant sentiment, but mostly Italy continues not only to absorb the immigrants but to actively patrol the Mediterranean to rescue would-be immigrants from leaky, overcrowded boats. The government’s main beef is that the rest of Europe needs to give more than lip service to the rescue and resettlement effort.

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Although Italy only became an actual country in the mid-nineteenth century, the country progressed fairly well until World War I, which killed nearly three quarters of a million of its soldiers and bankrupted the country. Benito Mussolini’s fascist regime took power shortly thereafter, leading to a disastrous alliance with Nazi Germany. Italy was one of the deadliest fronts of the Second World War, which ended with another half-million Italian soldiers killed and the Italian economy in ruins – per capita income at the end of the war was about equal to what it had been in 1900.

Although Italy became a Republic in 1946, Italian governments have been notoriously unstable – Italy has had 63 governments in 67 years. Until the end of the 1970s, the country suffered social unrest and terrorist attacks by extremist groups like the Red Brigades. Still, aided by the Marshall Plan, the Italian economy flourished. From 1950 to 1970, a period still known as the Economic Miracle, Italy’s economy grew faster than any other in Europe. By 1985, living standards in Italy matched those in Western Europe as a whole. Italian commercial interests did well in the Balkans after the fall of the Berlin Wall, often out-competing the Germans in that region. Today, Italy has the eleventh largest economy in the world, a high standard of living, and a strong social safety net, all despite taking a bigger than average hit in the 2007 – 2008 financial meltdown.

American politicians can’t find the money to maintain American schools, roads and bridges that aren’t more than fifty years old; Italian politicians somehow find the resources to maintain whole cities that were built before Europeans put up so much as a single structure in the New World. There are parts of Italy where you can’t turn a shovel of dirt without uncovering antiquities, and somehow Italian politicians find resources sufficient both to preserve the antiquities and to build around them.

The United States has a land mass about 33 times that of Italy. It’s less than 900 miles from the tip of the toe of the boot of Italy all the way to the Austrian border, compared to more than 3,300 miles from San Diego to Presque Isle, Maine. But Italy has more than 500 miles of high-speed rail, whereas the U.S. has none – our fastest rail line is the Northeast Corridor’s Acela service, which has a maximum speed of 150 miles per hour, and an average speed under 70.

Italy opened its first high-speed rail line when Jimmy Carter was president. The best hope for American high-speed rail is that a connection from Fresno to Bakersfield will start service in 2021. By then, the Italians will have further expanded their internal high-speed rail and will be well on their way to connecting their internal network to France, Switzerland, Austria and Slovenia.

During our stay in Italy, we flew to and from Milan, and traveled by train to Florence, Pisa, Bologna, Ravenna and Rimini. At one point during the 50-minute trip from Bologna to Milan, I happened to glance up at a monitor and saw that we were moving at 297 kilometers per hour – basically three times the maximum speed on American highways.

Of course the train stations were already there before high-speed rail came, even to Italy. At the Bologna station, the high-speed tracks had to be run below the existing lines, and then passenger access routes had to be built to the new, deeper platforms – which must have increased the cost of construction considerably. Yet the Italian politicians who have run 63 governments in 67 years somehow came up with the resources to get it done, all the while propping up Pisa’s tower from tilting too far, keeping the Pantheon in spiffy shape for the tourists, and restoring every medieval and Renaissance town and basilica and museum and da Vinci fresco and Bellini painting and Michelangelo sculpture and Byzantine mosaic to nearly pristine condition.

A Short History of the American Death Penalty

America has always had capital punishment. The first American execution was in 1608 in the Jamestown colony, when Captain George Kendall was shot by a firing squad on charges of spying for Spain. Early colonial law made large numbers of crimes punishable by death.

America has also had opposition to capital punishment, almost as long as it has had capital punishment. Prominent influences came from penal theorists like Jeremy Bentham and Cesare Beccaria, who in the late 1700s promoted the movement away from execution in favor of incarceration. Following their thinking, Thomas Jefferson proposed a Virginia bill to limit execution to the crimes of murder and treason; his bill failed by one vote. In his day, Jefferson was considered quite the liberal for suggesting that gay men should be castrated instead of killed.

Execution was routine in early America, with penal executions conducted in public as late as the 1930s. The largest non-military execution in our history occurred in Rhode Island in 1723, when 26 pirates were hanged. The two largest military executions occurred in 1862 in Minnesota, when 38 Dakota natives were hanged on charges of rape and murder during the Dakota War; and in 1917, when 13 African-American soldiers were hanged for participating in the Houston Riot during World War I.

Hanging and firing squad were the most prominent early methods of execution in the U.S., but we also experimented with even more brutal stuff like burning, crushing, and bludgeoning. Although the firing squad remains a legal death penalty option, and has been used as recently as 2010, in Utah, the peak year for firing squad executions appears to have been 1626, when maybe eight people were executed by shooting. Hanging peaked much later, when about 150 people where hanged in 1900. Two states still allow hanging, but it hasn’t been done since 1996.

In 1881, New York opened a search for an execution method less brutal than hanging, and Thomas Edison answered the call. His company produced the first electric chair, the State of New York was persuaded to adopt it, and the first execution by electrocution occurred in New York’s Auburn Prison in 1890. Electrocution gradually replaced hanging as the leading method of execution, and held its edge through most of the 20th century, withstanding a brief challenge from the gas chamber, which peaked in the early 1950s. Both methods remain legal, and were last used in 1999 (gas) and 2013 (electrocution).

Although execution was routine in colonial and early America, it was not especially common until well into the 1800s. As late as 1865, we executed just 51 people; we did not reach 100 executions in a year until about 1880.

From there, though, executions took off, peaking at 161 in 1910, briefly dropping for a few years, then peaking again at 198 in 1935. After that, executions dropped almost every year, until Americans executed no human being in 1968, for the first time in almost 250 years. For 11 out of 13 years from 1968 to 1980, we executed no one; from 1972 to 1976, the U.S. Supreme Court prohibited executions.

After the Court lifted that suspension in 1976, 34 states and the federal government have executed 1,378 prisoners. But the practice of capital punishment is grossly uneven. Texas alone, with 515 executions, accounts for almost 40 percent of the total. The top 15 states account for more than 92 percent of the total. Ten of the 11 states of the Civil War Confederacy are in the top 15 – all but Tennessee, which ranks 21st – plus Oklahoma, Missouri, Ohio, Arizona and Indiana.

We appear to be in another period of long-term death penalty decline. From a post-1976 peak of 99 executions in 1999, executions have declined to 39 in 2013. Eighteen states and the District of Columbia now prohibit execution, and several other states allow execution but have executed no prisoners since the restoration of the death penalty in 1976. Public support for execution has dropped, even more so when the option of life in prison without parole is offered.

International pressure to eliminate executions is mounting. Ninety-five countries now legally prohibit executions, and another 44 have essentially abolished executions in practice. Fifty-eight countries retain the death penalty; of those, only 34 are considered to be “active” death penalty jurisdictions, and in any given year only about 20 countries actually perform executions.

China is believed to perform more than 80 percent of the world’s executions; information about Chinese executions is a state secret. Data can be unreliable about executions in other countries that are either secretive or chaotic, like North Korea, Iran and Somalia.

Amnesty International reported 778 executions by 22 countries in 2013. In this respect, the U.S. is not keeping good company. No European country executed a prisoner in 2013, although Belarus still imposes death sentences, and the United States was the only country in the western hemisphere to conduct an execution last year.

Aside from China, the “top 10″ of executions in 2013 was Iran (369), Iraq (169), Saudi Arabia (79), North Korea (70), the U.S. (39), Somalia (34), Sudan (21), Yemen (13) and Japan (8). I’m guessing that most of those countries would not rank among America’s “most admired.” In what other context do we fall between North Korea and Somalia in international rankings? And how can we not be ashamed that we do in this context?

Lethal injection was first used in this country by Texas, in 1982, and quickly became the overwhelmingly predominent method of execution. The only American manufacturer of one of the three drugs used in the original lethal injection protocal, sodium thiopental, stopped producing the drug in reaction to its use in executions. And the European Union in 2011 banned the export of drugs for use in executions.

American doctors have been increasingly reluctant to help states develop new lethal injection protocols, and, in combination with the unavailability of sodium thiopental, this has created problems for death penalty states. Even once they are able to develop new lethal injection protocols, those protocols must withstand judicial scrutiny against claims that the protocols impose pain beyond that necessary to cause death, and therefore are an unconstitutionally cruel punishment.

The difficulties death penalty states are having getting to execution are pretty clearly suggested by the fact that, for the 39 executions performed in 2013, the average time between commission of the crime and execution was about 15 years; only six were less than ten years; one was 35 years – John Ferguson was executed at 65 years old, after three decades on death row, for murders he committed in 1977 and 1978.

After meeting with German Chancellor Angela Merkel this week, and no doubt discussing a number of issues not including capital punishment, President Obama and the chancellor held a press conference. In response to a question from an Agence France-Presse reporter, Obama said that Oklahoma’s badly mishandled execution of Clayton Lockett earlier in the week was “deeply troubling,” and that there are “significant problems” in the “application of the death penalty” in this country.

The President then charged Attorney General Eric Holder to review the application of the death penalty in this country. Although Obama re-stated his long-standing support for capital punishment in some cases, death penalty opponents are hoping – and proponents are worrying – that Holder’s review might lay the basis for a future change in the President’s position on the question. Holder himself opposes capital punishment.

Cruel and Unusual

On August 22, 1987, Charles Warner raped and murdered his roommate’s year-old daughter, Adrianna Waller. On June 3, 1999, Clayton Lockett and two accomplices kidnapped Stephanie Neiman, Lockett shot her twice with a shotgun, and one of his accomplices buried her, still alive. Both Warner and Lockett were convicted and sentenced to death.

On February 26, 2014, attorneys for Lockett and Warner filed a civil lawsuit against the Oklahoma Department of Corrections in the Oklahoma District Court. The attorneys wanted to know who was supplying the drugs that would be used to execute their clients, and what those drugs would be. This is an issue because pharmaceutical companies are increasingly unwilling to allow their products to be used to kill people, even legally. As a result, death penalty states have been forced to improvise.

They lawsuit challenged the constitutionality of a 2011 Oklahoma law that provides: “The identity of all persons who participate in or administer the execution process and persons who supply the drugs, medical supplies or medical equipment for the execution shall be confidential.”

The Oklahoma Department of Correction contended that this law prevented not just the disclosure of the names of the people who supplied the drugs, but also the disclosure of the names of the drugs themselves. The inmates’ lawyers asked for an order striking down the 2011 law, and staying the inmates’ execution until the Oklahoma Department of Correction identified the drugs that would be used in the execution.

On March 11, 2014, the District Court dismissed the case, concluding that it did not have jurisdiction to stay an execution – the only court with that jurisdiction, the District Court said, is the Oklahoma Court of Criminal Appeals. The same day, the inmates’ lawyers appealed to the Oklahoma Supreme Court, which ruled on March 13, 2014, that the District Court did in fact have the jurisdiction not only to determine the constitutionality of the 2011 confidentiality law but also to issue a stay of execution of the law was found to be unconstitutional.

Both sides moved for summary judgment in the District Court, which ruled on March 26, 2014, that the 2011 law is unconstitutional. However, the District Court refused to stay the executions, finding that the statutory requirements for a stay were not satisfied. Specifically, the District Court held, the Court could stay an execution only in a case where a condemned inmate was challenging either the criminal conviction or the sentence of death. In this case, the inmates were challenging the state’s refusal to disclose the drugs that would be used to in the executions and where they came from.

Once again the inmates’ lawyers appealed to the Oklahoma Supreme Court and moved for an emergency stay of execution. Oklahoma’s attorney general argued that the motion for a stay should be transferred to the Oklahoma Court of Criminal Appeals, and, on April 17, 2014, the Supreme Court retained jurisdiction over the appeal from the District Court, but transferred the stay request to the Court of Criminal Appeals.

The next day, the Court of Criminal Appeals refused the case, asserting that it did not have jurisdiction. At the same time, the Oklahoma attorney general appealed to the Oklahoma Supreme Court from the District Court’s conclusion that the 2011 confidentiality law was unconstitutional.

The Oklahoma Supreme Court said the issue to be decided was “whether these appellants should have some access to an appellate tribunal for consideration of a stay of execution based upon the consideration of grave first impression constitutional issues regarding the manner in which their lives will be taken. More simply, the sole issue presented to this Court on this date is whether some court should hear their plea for a stay and ensure their constitutional right to access to the courts.” The issue of access to the courts came up because, without knowing the drugs that would be used to execute their clients, the lawyers could not assess or assert a claim that use of those drugs would inflict a torturous, and therefore unconstitutional, death.

The Supreme Court noted that the Court of Criminal Appeals had disobeyed a “constitutional directive of this Court,” which made the Court of Criminal Appeals’ action “invalid.” The result was that the only state appeals court with jurisdiction to decide a motion to stay an execution had refused to consider the motion. The Supreme Court invoked the common law “rule of necessity,” which basically says that if a thing must be done, then someone must do it – and, in this case, where the court that is supposed to do it refuses, then the Oklahoma Supreme Court must of necessity do it instead.

Although the Oklahoma Supreme Court relied on common law doctrine, there is a pretty good constitutional case to be made that where a state law provides for stays of execution, and vests a specific court with exclusive appellate jurisdiction to decide on stays, then an inmate seeking such a stay is constitutionally entitled to have his motion decided by that court.

In any event, the Oklahoma Supreme Court issued an emergency stay of execution, to allow time for briefing, argument and decision of the question on appeal – the constitutionality of the 2011 confidentiality law. The Court issued its stay on April 21, 2014, by vote of 5 – 4.  The four dissenters maintained that the Supreme Court had no jurisdiction over the case, and that the case should have been transferred in its entirety to the Court of Criminal Appeals.

On April 22, 2014, the Republican Governor of Oklahoma, Mary Fallin, signed an order stating that the Oklahoma Supreme Court’s “attempted stay of execution is outside the jurisdiction of that body,” and therefore the executions would proceed on April 29, 2014.

Then on April 23, 2014, the Oklahoma decided the full appeal. The Court concluded that the 2011 confidentiality law protected the confidentiality of individuals, and did not provide that the drugs to be used in the execution could not be named. But by then the state had disclosed which drugs would be used. The inmates and their lawyers could effectively pursue their claim that execution with the specified drugs would constitute cruel and unusual punishment, and therefore the Court unanimously rejected the District Court’s finding that the 2011 confidentiality law is unconstitutional.

Having denied the inmates’ appeal, the Court vacated the stay of execution it had issued on April 22, which the Governor had made plain on April 23 she intended to ignore.

On Tuesday evening, April 29, 2014, Clayton Lockett was taken to the execution room, strapped down, and injected with drugs that were intended to take his life. Members of the press, correction officials, and the family of Lockett’s victim were seated outside. At 6:23 p.m., the blinds were raised on the windows between the viewing areas and the execution room. Lockett was lying down, a sheet covering hs body to his shoulders.

The warden asked Lockett if he had any last words, and he said “no.” The warden ordered that the execution begin. Fifty milligrams of midazolam, a powerful sedative, were injected into each of Lockett’s arms, preparatory to injection of two other drugs that would stop Lockett’s breathing and heartbeat.

Lockett did not immediately lose consciousness, but may have after a few minutes. At 6:36 p.m., Lockett rolled his head, kicked his leg, and mumbled something. He began “writhing and bucking” as if trying to get up, and “grimacing, grunting and lifting his head and shoulders entirely up from the gurney”; he “appears to be in pain.” Lockett was mumbling, mostly unintelligibly to eyewitnesses. At 6:39 p.m., the blinds were lowered between the viewing areas and the execution room.

Reporters were told that the execution had been halted due to a “vein failure,” but at 7:06 p.m. Lockett was declared dead due to a massive heart attack. Governor Fallin stayed Charles Warner’s execution and ordered an investigation into the Lockett’s execution.

I am opposed to capital punishment in all cases. But even accepting the premises of capital punishment, Oklahoma’s execution of Clayton Lockett is troubling. The Oklahoma attorney general argued that the Court did not have jurisdiction to stay the executions, but the Court disagreed. The Oklahoma Supreme Court issued a considered judgment that the execution should be stayed while Lockett’s appellate claims were duly deliberated. Governor Fallin flatly disobeyed the Court’s order and scheduled executions anyway. The Court then responded by rejecting Lockett’s appeal on an “expedited” basis, without taking the customary briefs and argument.

The execution of Clayton Lockett will always be tainted by Governor Fallin’s contempt of court and the Court of Criminal Appeals’ disobedience of a superior court’s order. The Court’s decision on Lockett’s appeal will always be tainted by the suspicion that they acted as they did to save face in light of Governor Fallin’s disobedience, rather than on the merits of Lockett’s appeal.

And our country will be tainted by the barbarity of this execution, and of all executions, until we decide, as most of the world has decided, that capital punishment is incompatible with civilization.


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