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Monthly Archives: April 2014


Oklahoma’s insufficiently lethal injection

Whatever one’s feelings about the morality or the effectiveness of the death penalty, can we all agree that when a state carries out an execution, it must know that its protocol will act effectively and avoid gratuitous suffering?:


The execution began at 6:23 p.m. when officials began administering the first drug, and a doctor declared Lockett to be unconscious at 6:33 p.m.


About three minutes later, though, Lockett began breathing heavily, writhing on the gurney, clenching his teeth and straining to lift his head off the pillow. After about three minutes, a doctor lifted the sheet that was covering Lockett to examine the injection site. After that, an official who was inside the death chamber lowered the blinds, preventing those in the viewing room from seeing what was happening.


Patton then made a series of phone calls before calling a halt to the execution. He also issued a 14-day postponement in the execution of inmate Charles Warner, who had been scheduled to die on Tuesday, two hours after Lockett was put to death.


“It was extremely difficult to watch,” Lockett’s attorney, David Autry, said afterward. He also questioned the amount of the sedative midazolam that was given to Lockett, saying he thought it was “an overdose quantity.” It was the first time Oklahoma administered midazolam as the first drug in its execution drug combination.

I thought that Mengele had established a precedent that captives not be used to beta-test drugs or experimental protocols. Then again, the past decade has laid waste to the idea that there are things that Americans simply “don’t do.” Unfortunately, Oklahoma’s actions lend support to my earlier expectation that shortages of drugs comprising the standard lethal-injection protocol would not cause (blood-) red states to rethink their reliance on capital punishment. Instead of suspending executions or seeking other methods, states will be winging it (decidedly NSFW). It is unclear how this kind of amateurism comports with the “evolving standards of decency” that control our understanding of the Eighth Amendment’s strictures against “cruel and unusual punishment.” But without a wave of public revulsion against actions like Oklahoma’s, it will be hard to convince the requisite number of appellate judges to rethink the death penalty.


“Cheerios: Now With 30% More Legal Waivers!”

I’ve come to expect that my cell phone contract, credit card agreements, and many other contracts with businesses will include language mandating that any disputes will be resolved through binding arbitration, rather than through litigation. It’s a terribly one-sided state of affairs, as I’ve got no leverage to bargain to retain my right to sue, or to take my business to providers who won’t impose such restrictive terms. And I’m not going to give up my cell phone and credit cards in protest. So why does this account in Thursday’s New York Times surprise as well as appall me?

General Mills, the maker of cereals like Cheerios and Chex as well as brands like Bisquick and Betty Crocker, has quietly added language to its website to alert consumers that they give up their right to sue the company if they download coupons, “join” it in online communities like Facebook, enter a company-sponsored sweepstakes or contest or interact with it in a variety of other ways.

Instead, anyone who has received anything that could be construed as a benefit and who then has a dispute with the company over its products will have to use informal negotiation via email or go through arbitration to seek relief, according to the new terms posted on its site.

In language added on Tuesday after The New York Times contacted it about the changes, General Mills seemed to go even further, suggesting that buying its products would bind consumers to those terms.

So if I buy a box of Cheerios and find a “secret ingredient” in the box that causes me harm, I have no meaningful way to hold General Mills accountable? (Maybe this scenario is the one GM thinks it’s preventing?) An industry can give itself blanket immunity to civil suit just because it says so? Sure, I can arbitrate, but if damages are likely to be small, arbitration won’t be worth the time and cost, especially since the Supreme Court has also upheld the right of corporations to include contract language banning class-action arbitration. Any damages award I receive will be kept secret, and as such will offer no aid to similarly situated individuals seeking remedy. And in arbitration, I’ll be playing in a game in which the other team has chosen the referee. General Mills does claim to cover the cost of arbitration in most cases, but that’s not much consolation: “I’ve chosen the ref, but don’t worry–I’ve paid for him too!” I harbor no illusions that the courtroom places consumers and corporations on an even playing field, but I do know that if civil trials didn’t give ordinary people better odds of a fair shake, corporations wouldn’t work so hard to deny consumers access to the courtroom.

The larger question, as I see it, is whether business interests can advance a legal claim so audacious that even the Roberts Court, whose majority all but wears the U.S. Chamber of Commerce logo on its robes NASCAR-style), would feel compelled to reject it. My sense is that we’ll have to wait for a Scalia or Kennedy retirement to find out, as actors looking to challenge these arbitration provisions are not going to risk almost certain defeat in front of the current Court.

Citizens United II: The Umpire Strikes Back

The outcry over the Supreme Court’s ruling on Tuesday striking down federal caps on aggregate campaign contributions by individual donors has a predictable quality to it. The folks who viewed the Citizens United ruling as outrageous have excoriated the holding in McCutcheon v. Federal Election Commission as a new, unprecedented outrage against the idea that ordinary citizens, and not a motley collection of oligarchs, should drive public policy. But given the Court majority’s continuing commitment to two premises central to Citizens United, Wednesday’s ruling should not have surprised anyone.

The first premise connecting Citizens United to McCutcheon is the equation of campaign money with the political speech considered to lie at the core of the First Amendment. Citizens United concerned independent expenditures by corporations and labor unions, and McCutcheon  extends the principle to campaign contributions. As Chief Justice John Roberts put it, “[t]he government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.” Presumably this means that Congress will not be allowed to restrict how much money a donor gives to an individual candidate or party, once the Supreme Court receives a case challenging such restrictions. As was the case with the individual-rights reading of the Second Amendment, Justice Clarence Thomas’s position has gone from off-the-wall to law of the land. But once the Court took its initial step in Citizens United, it became hard to see how the same five-justice majority could come to a different conclusion in McCutcheon.

The second premise is the reliance on defining corruption in terms of quid pro quo exchanges in which money directly buys votes or other favors. There is a prevailing sense among the majority in which political corruption exclusively looks something like this. (It’s worth nothing that when the Court was confronted with a Montana Supreme Court ruling defending its state’s independent expenditure limits as a response to both real and perceived corruption, the Supreme Court summarily reversed. Why rely on a court’s factual findings when you’ve got airy speculation available to you?) I would be a fool to deny the existence of bribery or other forms of pay-to-play, but the more common impact of money lies in its ability to provide access to politicians, as the Court itself recognized as recently as 2003 when it upheld the McCain-Feingold campaign finance regulations. Access can pay off in numerous ways, including:

  • securing face-to-face meetings with legislators themselves, as opposed to their staffers
  • convincing sympathetic legislators to include in bills favors whose hidden quality resembles that of video-game Easter eggs
  • influencing politicians’ issue priorities

Once the Court defined corruption in the much narrower sense, the game was effectively over. How could the Court have held that endless lines of Koch money do not corrupt the political process, but smaller direct contributions to candidates and parties do? There is good reason to criticize the Court for not adopting a broader understanding of corruption, but once it made that choice, McCutcheon followed directly from it.