“Killing Experiments”: It’s Time For A Nationwide Moratorium On The Death Penalty
We still don’t know where the drugs came from.
We know they used midazolam and hydromorphone. We know the combination was experimental. And now we know that instead of working, the drugs took nearly two hours to kill Joseph Wood, as he snorted and gasped for air 660 times.
Within a couple hours of Mr. Wood’s death, the state of Arizona started damage control. Last night, Governor Jan Brewer called for an investigation into why the execution had taken so long, but she also released a statement saying: “by eyewitness and medical accounts he did not suffer.”
That’s not what the reporters who were in the room have written. “It was very disturbing to watch… liked a fish on shore gulping for air,” Troy Haydentold The Arizona Republic.
One hour and 57 minutes is horrifically long, even when compared to the recent botched execution of Clayton Lockett, who writhed in pain for 45 minutes while the state of Oklahoma struggled to kill him in May.
It’s time to ask the question: How is it possible that, in 2014, state after state is utterly failing at lethal injection? How can it be, given modern medicine, that it could take hours instead of minutes for states to kill someone?
The answer is that the death penalty simply has no place in this country. As method after method of state-sponsored killing has been deemed barbaric and archaic, states are left scrambling to invent new ways to execute.
Lethal injection started as a seemingly more humane alternative to the gas chamber, the electric chair, and firing squads. But as companies both in the U.S. and in Europe have refused to let the drugs they produce be used in executions, lethal injection has become what is essentially medical experimentation, with novel drugs and doses leading to botched execution after botched execution.
Lethal injection is not modern medicine. Executioners do not have proper training, leading to some prisoners being conscious but paralyzed as they slowly asphyxiate. States are fumbling to find drugs, concocting different combinations every time. In the case of Mr. Wood’s execution, the state used a two-drug combination that had been used only once before, when the state of Ohio took 25 minutes to kill Dennis McGuire.
And these killing experiments are being carried out in secrecy. The hours before Mr. Woods was strapped to the gurney were a frenzied attempt to figure out where the drugs came from before they could be shot into his vein. We still don’t know.
The greater problem underlying the horrific executions we have recently seen is not lethal injection or a matter of simply getting the drugs right. The execution of the innocent, the shameful role of race, mentally ill defendants, poor defense lawyering, and prosecutors who hide the truth — these are the problems that make the death penalty completely inappropriate in the modern world. Yet we continue to slowly pick off killing methods that are simply too barbaric to condone, but the truth is that there is no way for states — for our government — to kill someone that is in line with the type of country we want to be.
Today, my heart is with Jeanne Brown and all of those who loved Debra Dietz. My thoughts are with the executioners who will have to live with the horrific botch they carried out yesterday. This entire story is a tragic one, and it should push us to admit that the path to justice simply cannot include more gruesome violence.
It’s time for a nationwide moratorium on the death penalty.
Brian Stull, Senior staff attorney with the ACLU Capital Punishment Project; The Huffington Post Blog, July 24, 2014
“Advancing A Political Agenda”: When Freedom Of Religion Becomes A Sword, Not A Shield
Growing up, I went to a small school in Boston that was affiliated with the church across the street. The headmaster was Father Day. We went to services, the school had a great arts program and I loved my classmates. But what I remember most about it was that it was a warm and loving place to learn and grow.
Years later, I went to an historically Jewish university. Worship wasn’t part of the curriculum, but at some level, religion was knitted into every nook and cranny. I had the time of my life. It was a great place to be.
Those two experiences reflect my mixed religious lineage. I’m not sure what you’d call me today, but it’s the background I come from when thinking about the religious controversies that have been making headlines of late.
If you’re like me, freedom of religion feels something like this: It’s the right to believe, to express your belief without fear of reprisal, and to worship in accordance with your beliefs. It’s one of our country’s most fundamental rights, and it should be. No one should be able to tell you what you can and can’t believe, and no one should penalize you for your beliefs.
So the freedom of religion cases that feel the most intuitive are those in which someone’s ability to express their religious faith has been compromised. The Sikh who is told he can’t wear his turban at work. The orthodox Jew told to work on Saturday or lose his job. These kinds of cases feel immediately unjust: Unless your religious beliefs somehow irredeemably impair your ability to complete your duties, what business is it of your employer to tell you how you can or cannot live out your faith?
In other words, in these cases, the freedom of religion acts as a protection, a shield rather than a sword. That helps explain something else that feels right about cases like the ones just mentioned, at least in terms of how we understand them on a gut level: In each one, its the more powerful employer who is trying to impose its will on the less powerful employee who is only trying to exercise his or her faith. In other words, the person in need of protection is the one finding protection in the Constitution.
That feels very different from how some of the more recent controversies surrounding the freedom of religion have been playing out. Take the Arizona bill that would have allowed businesses to deny service to homosexuals. The argument for it was: If I own a business I ought to be able to operate it in a way that accords with my most fundamental beliefs (and if I think homosexuality is wrong, I shouldn’t have to serve homosexuals). But here the power dynamic was different. This wasn’t a case where a person being discriminated against cited the Constitution as evidence that the discrimination was impermissible. Instead, it was the opposite: a case where the person who wanted to do the discriminating sought justification in the Constitution.
In the Hobby Lobby case that was before the Supreme Court this week, the power dynamics are similarly flipped. Here, it isn’t a case of an employee charging that a much larger corporation is forcing him or her to choose between livelihood or beliefs. Instead, it’s the corporation that’s saying its religious beliefs have been compromised, and that the remedy is to withdraw a benefit offered to its (less powerful) employees.
In other words, here the freedom of religion is being used as a sword, not a shield. I’m not asking you to protect my right to believe what I want, I’m asking you to take something away from someone else on the basis of my belief. That’s a different kind of thing. And it doesn’t feel right.
There are other themes that factor into these kinds of controversies, of course. On the one hand, there are those who see the most powerful actor in these disputes as the government, and its efforts to compel people to behave in ways they would rather not. On the other, there are people like me, who see the claim of religious liberty being deployed by some as a way to advance a political agenda that really may not have all that much to do with religion.
But look, I’m one of those people who believes that when it comes to religion we ought to spend a lot more time listening to each other and a lot less time being knee jerk, because for many of us faith is so personal and important. Different people will feel differently about what their faith means, how it is expressed and how it may be impinged upon. And in my experience, when we assume we know someone else based entirely on their religious faith, or the lack thereof, more often than not we’re wrong.
But here’s something I’m pretty sure about, too: While everyone is entitled to their freedom of religion, we don’t honor that freedom when instead of using it to protect you from discrimination on the basis of what you believe, we use it to justify discrimination against others on the basis of who they are or what they believe. And that’s true no matter how uncomfortable you may find their beliefs, or the expression of it, to be.
By: Anson Kaye, U. S. News and World Report, March 27, 2014
“John McCain, Popularity Poll Truther?”: The People Have Spoken, Those Bastards
Public Policy Polling may say that John McCain is the least popular senator in America, but the Arizona Republican isn’t buying it.
Last week, PPP released a poll finding that just 30 percent of Arizonans approve of the job that Senator McCain is doing, while 54 percent disapprove. That makes him the least popular member of the Senate, according to PPP.
During a Monday appearance on Fox Business’ Cavuto, McCain pushed back against the numbers.
“There is a bogus poll out there,” McCain said. “I can sense the people of my state. When I travel around, which I do constantly, they like me, and I am very grateful.”
If McCain’s confidence in his ability to “sense” his true popularity reminds you of Republicans who were certain that 2012 polls were wrong, and that Mitt Romney would cruise to victory in the presidential election, you aren’t alone. Public Policy Polling director Tom Jensen responded to McCain’s attack against his poll by reminding the fifth-term senator of the dangers of poll trutherism.
“We’ve used the same methodology to measure the approval ratings of more than 85 senators in their home states, and Senator McCain has the worst approval numbers of any of them,” Jensen told Talking Points Memo. “That’s because he’s unpopular within his own party and unlike other Republican senators who have a reputation for working across party lines — the Susan Collins and Lisa Murkowskis of the world — he hasn’t earned much popularity with Democrats either.”
“I think we saw in 2012 what happens when Republicans try to just dismiss and ignore poll findings that they don’t like,” he added.
Were Jensen feeling boastful, he could also have noted that a Fordham University analysis found PPP to be the most accurate predictor of the 2012 election.
During his interview with Cavuto, McCain also took a moment to address his political future. Although he said that he is “seriously considering” running for Senate again in 2016, he reiterated that he has no interest in another presidential bid.
“I’m afraid that it is not a viable option,” he said.
McCain has shut down previous inquiries about his presidential ambitions by colorfully quoting the late Rep. Morris Udall: “The people have spoken — the bastards.”
By: Henry Decker, The National Memo, March 11, 2014
“Morally And Legally, The Right Call In Arizona”: Citizens Cannot Opt Out Of Civil Rights Laws
There’s no question that Jan Brewer did the right thing yesterday. No moral question. And no legal question either. Well, let me slightly amend that: With this Supreme Court, you never know about the future. But we know about the past, and decades of civil-rights case law are squarely on Brewer’s side, and supporters of SB 1062 just have to see this clearly and squarely and accept it.
It’s not like we’ve never fought over these questions. We have, of course, and a result, there’s a history here. And that history, that body of court decisions, says clearly, like it or not, that generally speaking, citizens cannot opt out of civil rights laws.
As Harvard law professor Noah Feldman pointed out yesterday in a Bloomberg view column, segregationist business owners in the South argued after the civil rights act of 1964 that their “constitutional right to associate” as they chose should permit them not to serve black customers. (The religious-liberty right, Feldman notes, has the same “constitutional status” as the right to associate.) But courts never said that this was permissible.
We may laugh today at the idea that the racist owner of a hardware store in Natchez in 1965 could have refused to sell a black carpenter a bag of masonry nails. But it was no laughing matter then. This was real. Congress, and then the courts, put a stop to it. As Feldman told me yesterday in a follow-up exchange: “Freedom to associate and exercise religion are basic rights. Excluding customers isn’t.”
The freedom to associate that Feldman mentions is one carve-out that courts have recognized. But that’s a narrow exemption, intended in real life mostly for private or fraternal organizations that are built around some idea of ethnic cohesion—New York’s Ancient Order of Hibernians, for example, which quite famously has been allowed for years to ban gay people and groups from marching in the city’s St. Patrick’s Day Parade.
By the way, doesn’t it seem weirdly anachronistic and reactionary that the Hibernians still enforce this ban? The gay-rights position was controversial back in the early ’90s, when I was covering these things. Now, the Hibernians’ position seems like something better suited to Alabama than New York City. In any case, after Rudy Giuliani and Mike Bloomberg marched in the discriminatory parade every years, new Mayor Bill De Blasio announced that he’s boycotting it.
But, the Hibernians are allowed to do this under their right to associate. There also exists a so-called “Mrs. Murphy” exemption to the Fair Housing Act for owner-occupied rental housing of four or fewer units—that is, if little old Mrs. Murphy subdivided her big house and wants to keep out certain people, she’s probably allowed to do that. And finally, in certain narrow cases, religious institutions that serve mostly religious purposes are allowed to hire only their coreligionists.
But a business vending to the general public? No way. If these “Christians” in Arizona are permitted to deny their services to same-sex couples, then atheist small-businesses owners in Berkeley are perfectly within their rights to hang a sign: “No Christian evangelicals served.” It would be crazy for courts to open that door.
Brewer seemed to understand all this properly with the money passage of her statement yesterday: “Senate Bill 1062 does not address a specific or present concern related to religious liberty in Arizona. I have not heard one example in Arizona where a business owner’s religious liberty has been violated.” She deserves credit for saying this, dismissing this specious religious liberty talk.
The legal history is clear. The legal future, though, is still a bit up in the air. Feldman acknowledges that SB 1062 “may well be constitutional” because the law’s supporters might be able to argue successfully that their tradition of religious liberty is “in jeopardy.” Samuel Bagenstos, a former assistant attorney general for civil rights under Barack Obama who now teaches law at the University of Michigan, explains that the Arizona law and others like it around the country constitute a new and not-yet-settled legal battle front. “These laws, by singling out gays and lesbians for less protection of antidiscrimination laws, are vulnerable to a challenge under the Equal Protection Clause,” Bagenstos says. “But the law’s very much developing in this area, so we really can’t say anything with confidence.”
It’s developing, but it’s mostly developing on the side of shutting down legal discrimination. Ask the Texas judge who yesterday struck down that state’s same-sex marriage ban, writing “that state-imposed inequality can find no refuge in our United States Constitution.” Increasingly, the law is coming to understand what more and more Americans understand. Gay people are equal. Period. There is no real religious basis for thinking otherwise. Ian Millhiser of Think Progress reminded us yesterday of people who used to think the same way:
In 1901, Georgia Gov. Allen Candler defended unequal public schooling for African Americans on the grounds that “God made them negroes and we cannot by education make them white folks.” After the Supreme Court ordered public schools integrated in Brown v. Board of Education, many segregationists cited their own faith as justification for official racism. Ross Barnett won Mississippi’s governorship in a landslide in 1960 after claiming that “the good Lord was the original segregationist.” Senator Harry Byrd of Virginia relied on passages from Genesis, Leviticus and Matthew when he spoke out against the civil rights law banning employment discrimination and whites-only lunch counters on the Senate floor.
It’s painfully obvious that in a mere 10 or 15 years, that’s how these Arizona Christians will be widely seen. They really ought to ask themselves if that’s the historic company they want to keep.
By: Michael Tomasky, The Daily Beast, February 27, 2014
“Platinum-Level Citizenship”: Highly-Religious Christians’ Battle To Change The Very Nature Of The First Amendment
Ask a conservative Christian about the President of the United States, and you’re likely to hear that Barack Obama has been waging a “war on religion” since pretty much the moment he took office in 2009. As laughable as the assertion may be, there’s little doubt that many have come to believe it, spurred on of course by opportunistic politicians and right-wing talk show hosts whose stock in trade is the creation of fear and resentment. In response, those conservative Christians have mounted a little war of their own, fought in the courts and state legislatures. The enemies include not just the Obama administration but gay people, women who want control of their own bodies, and an evolving modern morality that has left them behind.
In the process, they have made a rather spectacular claim, though not explicitly. What they seek is nothing short of a different definition of American citizenship granted only to highly religious people, and highly religious Christians in particular. They are demanding that our laws stake out for them a kind of Citizenship Platinum, allowing them an exemption from any law or obligation they’d prefer to disregard. They would refashion the First Amendment in their image.
Last week saw a number of new developments in the effort to create this elevated status for religious people, as bills seeking to enshrine discrimination against gay couples moved forward in two states. A bill in Kansas would explicitly allow both businesses and government to discriminate against gay couples in pretty much any way they wanted. A movie theater could turn gay couples away at the door, or a paramedic could refuse to treat a gay person having a heart attack, and they’d be immune from prosecution or lawsuits. After passing the Kansas state house overwhelmingly, the bill died in the state senate, in a brief (though likely temporary) moment of sanity.
A bill in Arizona did better, passing both houses, and it now awaits Governor Jan Brewer’s signature. This one was written more broadly, without the direct focus on gay couples, but its effects would be the same. It grants to any person, organization or corporation a nearly unlimited right to assert their “sincerely held” religious beliefs as a shield against lawsuits for discrimination.
Similar bills are pending in a number of conservative states; this won’t be the last we hear of them. And the Supreme Court will soon hear the case of Hobby Lobby, the retail chain that would like to be exempt from some of the requirements of the Affordable Care Act because its owners are Christians, and therefore they should be able to select the provisions they’ll abide by and not bother with those they find religiously objectionable.
The implications couldn’t be clearer. Let’s consider the put-upon Christian florists of Arizona, who might be subjected to the unspeakable horror of taking a gay couple’s money. What if one of those florists decided that since being born again through Christ is the one and only path to heaven, selling flowers to Jews or Muslims or Catholics would violate his deeply felt religious beliefs? Would he then be free to put up a sign in his window saying, “We only serve Protestants here”? According to the Arizona law, he would, regardless of what that pesky Civil Rights Act says. Or what if the owner of an accounting firm decided that since his religion places men above women, all his female employees will be paid half of what he pays male employees for doing the same job? It’s his religious belief, after all.
Anyone could say that almost any belief they have springs directly from their faith and their reading of scripture, and the state would be required to abide by it. Your faith tells you not to obey laws against discrimination? Well, maybe mine tells me that paying taxes is an offense to God. And my neighbor is a biblical literalist, so when his teenage son mouthed off to him, he arranged for the boy to be stoned to death, just like the Lord instructs quite clearly in Deuteronomy 18 and Leviticus 20. Surely we can’t convict him of murder, since he was only following his sincere religious beliefs.
You might say, well, those beliefs are ridiculous. Maybe they are. And maybe I find your opinions about gay people ridiculous. But up until now, neither one of us has had to have our own liberty compromised because of what the other believed, because we defined the First Amendment’s free exercise clause through religious practice. The government can’t tell you how to worship your god, and it can’t do things that make it difficult for you to worship as you’d like.
But now, conservatives are pushing a much broader conception of religious freedom, one that extends beyond religious practice to virtually anything a religious person does. But it’s when you take your religious practices outside of your own faith, your own beliefs, and your own practice and start applying them to other people that you lose the special privileges that religion is accorded. As an old saying has it, my right to swing my fist ends precisely where your nose begins.
Any Christians who want to can believe that gay people are sinful and wicked, or that gay marriage is a terrible thing. What they can’t do is use those beliefs as a get-out-of-jail-free card that gives them permission to break the law or escape civil liability when they harm other people.
Up until now, the distinction between religious practice and the things religious people do when they enter the secular world has worked pretty well. Anti-discrimination laws don’t mean that a rabbi has to conduct a wedding for two Baptists. Religious organizations can hire only people of their own faith. But once you enter into other realms, like commerce, you have to obey the laws that govern those realms.
If we grant religious people the kind of elevated citizenship conservatives are now demanding, where the special consideration given to religious practice is extended to anything a religious person does, the results could be truly staggering. Why stop at commerce? If things like employment law and anti-discrimination laws don’t apply to religious people, what about zoning laws, or laws on domestic abuse, or laws in any other realm?
The supporters of these laws, and of Hobby Lobby, argue that religious people shouldn’t have to put aside their beliefs when they act in the secular world. “It’s alien to me that a business owner can’t reflect his faith in his business,” said one Republican Arizona legislator. But when your business puts you in contact with people who don’t share your faith, putting aside your religion is precisely what you have to do, if “reflecting” that religion means violating the law.
For many years, conservatives would argue that they didn’t really object to equal rights for gay people, they were just against “special rights.” In practice, what they meant by “special rights” were things like the right not to be fired from your job or evicted from your home because of your sexuality, rights that weren’t special at all. But today, religious conservatives are demanding truly special rights for themselves. They want one set of laws that applies to everyone else, and another set that applies only to the religious. Or more precisely, they want religious people—but no one else—to be able to pick and choose which laws apply to them, and which they’d prefer to ignore. That’s a twisted version of the liberty the First Amendment was supposed to guarantee.
By: Paul Waldman, Contributing Editor, The American Prsopect, February 24, 2014
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