Tuesday, April 1, 2014

The United States of the NRA

Such as do build their faith upon
The holy text of pike and gun.
— Samuel Butler, Hudibras pt. 1

It is time to consider the possibility of disbanding Congress and turning over governance of the country to the National Rifle Association (NRA). At first blush that may strike some as a bad idea since Congress has been elected by the people whereas the NRA is a self-selected small (when compared with the overall population) group. But its membership is growing which indicates that it is a very popular organization and its growth does not occur in a random way. Every time there is an horrific act of violence involving guns, NRA’s membership increases. Given the amount of violence the country now enjoys, it is safe to say that its membership will continue to swell as gun deaths continue unabated.

By the time of the NRA’s annual meeting in May 2013 NRA membership had increased dramatically from the previous annual meeting. When addressing attendees at the 2013 meeting, Wayne LaPierre observed that NRA membership was in excess of 5 million people and its enrollment had increased by 500,00 members following the violent events of the preceding 6 months that included the Newtown School House massacre. As Mr. LaPierre said: “By the time we’re finished, the NRA must and will be 10 million strong.” He did not explain what he meant by “finished” but it’s safe to say the NRA would not, at that point, disband. Since its ranks are growing and people who join do so voluntarily, the idea that the NRA is self-selected rather than elected should not be of any great moment. Furthermore, the NRA is already heavily involved in determining what Congress does and does not do and we should quit pretending otherwise. There is, in fact, nothing Congress does these days that is of any moment since it passes virtually no legislation and confirms few, if any, nominees requiring its approval. The NRA, on the other hand, has repeatedly shown that when something needs to be done by governmental bodies it has the influence to that it gets done.

When the question of approving a new Surgeon General was being considered by Congress, for example, a selection that one would not believe to be within the area of the NRA’s expertise, it quickly became apparent that those who so thought were wrong. The NRA proved that it had the knowledge and experience to be an important voice in helping members of Congress decide how to view the nomination. In a 2 ½ page letter to the Majority and Minority leaders of the senate, the NRA laid out a number of things the president had overlooked when nominating Vivek Murthy to that post. In its letter the NRA examined all the things Doctor Murthy had said about guns during his life. Dr. Murthy had, for example, repeatedly suggested that anyone buying guns and ammunition should be licensed and should be required to undergo firearm safety training and testing, a proposal that the NRA’s letter says would “turn a fundamental, constitutionally protected right into a privilege for the few.” (The NRA was pointing out that learning how to properly use a gun is an unnecessary luxury and something most gun owners cannot afford.) Furthermore, (although this is my idea and not the NRA’s) on an almost daily basis one reads of children as young as two getting their hands on a parent’s gun and killing a sibling. It is perfectly obvious that neither licensing nor training would put an end to those kinds of accidents. The foregoing are not Dr. Murthy’s only transgressions. Dr. Murthy has tweeted that “Guns are a health care issue.” That is palpable nonsense since it is not guns that are health care issues but their effects when not properly used.

Others may say that the NRA lacks experience in foreign affairs, another arena in which Congress was once active. That, too, is nonsense. In September 2013 Secretary of State John Kerry signed the United Nations Arms Trade Treaty authorizing the government to participate in negotiating the United Nations Arms Trade Treaty. Well-versed in foreign policy as well as domestic policy, the NRA let it be known that it opposes the treaty “which clearly jeopardizes the right to keep and bear arms protected by the Second Amendment to the U.S. Constitution.” Chris W. Cox, the Executive Director of the NRA’s Institute for Legislative Action said the treaty: “threatens individual firearm ownership with an invasive registration scheme. The NRA will continue working with the United States Senate to oppose ratification of the ATT.” In adopting this position on foreign affairs it was joining other countries active in foreign affairs such as Syria, Iran and North Korea, all of whom are concerned with the treaty’s effect on their sovereign rights. The Senate and the House are in complete agreement with the NRA and the leaders of those two bodies have signed bipartisan letters pledging their opposing to ratification of the treaty.

There are a number of other advantages to turning the country over to the NRA not least of which is the elimination of the need to raise hundreds of billions of dollars every two years to determine who will sit in the Congress and do nothing more than draw salaries and quibble. Citizens would simply pay $35 annually for membership in the NRA. No proof of citizenship or other form of ID is needed to join. It’s a great opportunity and we should seize the moment.


Thursday, March 27, 2014

The Supremest Court

In defeat: defiance.
—Winston Churchill, The Gathering Storm

Once again I have been asked to explain a matter legal. The question that has been referred to me is on its face a simple one but in reality has a quirk that makes the answer unexpected. The question is, what is the highest court in the land?

The uninformed will immediately respond that it is the United States Supreme Court and the next highest, in the legal hierarchy, the Federal Courts of Appeal. People answering in that fashion can be forgiven for their answers since they are merely reflecting conventional wisdom. In fact, however, the highest court in the land is the Missouri Supreme Court. It has repeatedly shown itself to be above the United States Supreme Court and other federal courts when it comes to death penalty cases over which, most people, including the federal courts themselves, thought they had the final word. By repeatedly refusing to delay executions while the appeals of the condemned are being considered by federal courts, the Missouri Supreme Court has shown that it considers itself to be the final arbiter of such matters. Its defiant proclivities are described in great detail in a dissent by Judge Kermit E. Bye, a member of the U.S. Court of Appeals for the 8th Circuit in the case of Zink, Nicklasson et al vs. Lombardi. That case involved a motion for a stay of execution filed by Mr. Nicklasson who was asserting that his execution violated the federal constitution. Mr. Nicklasson, like other death row inmates described in this space last week, was seeking information about the drug protocol the state intended to use to effect his dispatch. He was not to get it. As Judge Nye explained in the opening part of his dissent, “Missouri put Nicklasson to death before the federal courts had a final say on whether doing so violated the federal constitution.”

If this were an isolated case, one could simply attribute it to an innocent mistake of the sort anyone could make. In fact, however, ” Judge Bye’s painstakingly detailed dissent describes in detail how the Missouri Supreme Court has repeatedly been told by the U.S. Supreme Court, the 8th Circuit Court of Appeals and federal district courts that when those courts are considering a matter, the Missouri Supreme Court should defer to those courts and not take it upon itself to permit executions to proceed without waiting to see what the higher courts say. Mr. Nicklasson was not, as Judge Bye observes, an aberrance: “Missouri has a well-documented history of attempting to execute death row inmates before the federal courts can determine the constitutionality of the executions.” Judge Bye’s opinion is replete with examples of the judicial wanderings of that court in Missouri’s death chambers.

Judge Bye opens his discussion by observing that in 1983 the Missouri court set an execution date for Doyle Williams before the time for Mr. Williams to petition the Supreme Court for direct review of his conviction and death sentence had expired. Justice Harry Blackmun stayed the execution and explained to the Missouri Justices that they had to wait for that time to pass before executing Mr. Williams. A few months later Missouri set the execution dates for four inmates before the required time had run. Justice Blackmun, said of the date: “I thought I had advised the Supreme Court of Missouri once before. . . that I . . . shall stay. . .the execution of any Missouri applicant” if the execution is scheduled by the state before the requisite time had passed. Justice Blackmun further observed that if Missouri “fails to fulfill its responsibility, I shall fulfill mine.” Thirteen months later in similar circumstances the Missouri Court again denied a request for a stay. The Federal district court granted the stay saying: “The Missouri Supreme Court ignored its responsibility to stay executions while federal judicial review is pending.”

Less than a year later, the Missouri Court refused to postpone an execution while a defendant exercised his constitutional right to have a court review the questions raised. The federal court granting that stay said “it becomes painfully obvious that the Missouri Supreme Court’s refusal to stay Gerald Smith’s execution. . . had no basis in fact nor in law, but was merely an expedient way of washing its hands of the matter and passing the buck to the Federal courts. . . .” In January 2014 Missouri executed Herbert Smulls 30 minutes before the U.S. Supreme Court denied his request for a stay. The executioners were prescient.

In the Zink case Judge Bye concluded his dissent saying: “Missouri’s past history of scheduling executions before a death row inmate has exhausted his constitutional right of review. . . has earned from this federal judge more than just a healthy skepticism regarding Missouri’s implementation of the death penalty. . . . Its current practice of using shadow pharmacies hidden behind the hangman’s hood. . .numerous last-minute changes to its execution protocol. . . and finally its act of proceeding with an execution before the federal courts had completed their review of an active request for a stay, has committed this judge to subjecting the state’s future implementation of the penalty of death to intense judicial scrutiny. . . .” The condemned will applaud the wisdom of the judge. The rest of us, and especially the federal courts, now understand why Missouri calls itself the “Show Me” state.


Thursday, March 20, 2014

The Compassionate Executioner

If it were an art to overcome heresy with fire, the executioners would be the most learned doctors on earth.
— Martin Luther, To the Christian Nobility of the German States (1520)

At last a touch of concern for the beneficiary has entered the death penalty arena and a timely thing too. Heretofore the discussion and court cases have always centered on the plight of the poor executioner who is unable to find the proper drugs with which to dispatch the condemned. No one seemed to be concerned about the comfort of the person being executed.

The executioner’s problem comes about because of the unavailability of the preferred potions that have been used ever since hanging, firing squads, gassing and electrocution left the scene because they did not seem like civilized ways to rid society of its unwanted. How, where and what drugs the executioner can obtain, however, remain a significant concern as shown by a case in Oklahoma where two executions slated for March have just had to be rescheduled for April.

Because of an unfortunate quirk in Oklahoma law, if the executioner is unable to acquire the drugs needed to conduct an execution, the execution may not take place. Whereas the Oklahoma legislature considered the possibility that lethal injection might be found to be unconstitutional and provided that were that to happen the executioner could use electrocution or hire a firing squad instead, that alternative did not apply if the required drugs were unavailable.

Oklahoma is, needless to say, desperate. Anxious to make sure the death deadlines can be met, in a brief filed with the court, Assistant Attorney General Seth Branham describes “a herculean effort” to get the necessary death dealing drugs, an effort that everyone in Oklahoma (except for the inmates) surely applauds. Up to now its efforts have been unsuccessful. That is because both foreign and domestic drug manufacturers are cutting off supplies of drugs that have been used in executions for many years. To deal with this problem, states are resorting to finding drugs and providers that are not tested and in two recent cases the individuals being executed have shown through their death throe actions that they are experiencing great pain during the execution. When that is revealed to the public it immediately reacts negatively since such conduct by the person being executed suggests that the executioner is not performing the task in a kind and humane way. To make matters worse from a public relations standpoint, one of the favored drugs in conducting human executions is a drug that the American Veterinary Medical Association has decreed cannot be used when euthanizing animals since it is often ineffective in performing its assigned task and is considered inhumane.
Deborah Denno, a law professor at Fordham Law School was quoted in the New York Times as saying: “We’ve never seen so many changes and so many troubles in getting these drugs. The states are more secret than they’ve ever been. And it’s a much riskier process than it’s ever been.”

An article in USA Today entitled “Death penalty spurs Wild West scramble for drugs” describes some of the questionable practices being used by states in their quest for drugs so that executions can proceed in an orderly fashion.

The result of this wild West approach is that those who will receive the drugs no longer have the certainty they had before procurement became a problem, that the drugs would help them die in a comfortable way. It seemed to those on death row that recent executions where the victims clearly suffered great pain violated the provisions of the 8th Amendment to the U.S. Constitution that Judge Kermit Bye of the US Court of Appeals for the 8th Circuit said in a recent case: “prohibits the unnecessary and wanton infliction of pain through torture, barbarous methods or methods resulting in a lingering death.” All that is what gives rise to the renewed interest by condemned inmates in the types of execution planned by the state in which they happen to be in residence.

Courts are beginning to showing a willingness to acknowledge the condemned person’s right to know the particulars of the execution in which he or she plays such an important part and a single sentence in a recent U.S. Supreme Court order suggests the time may be approaching when that Court will consider the question. In the Missouri case of Michael A. Taylor a “miscellaneous order” was entered in which the Court declined to consider Mr. Taylor’s appeal from a lower court order permitting his execution to go forward. Accordingly he was executed without knowing the composition of the drugs used to kill him. Three of the Supreme Court’s justices, however, said they would have been open to considering Mr. Taylor’s argument that he was entitled to know what drugs would be administered to him during his execution.

Once the courts decide that the condemned are entitled to know what combination of drugs will be administered to ease their passage into the hereafter we will once again demonstrate to the 140 countries that have abolished the death penalty, that although we remain in the company of the likes of Nigeria and North Korea in permitting capital punishment, we do all we can to make the experience one to which the condemned can look forward being fully informed.