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Judging a moot court tonight, and they are using the 8th Circuit Rodriguez case as the fact pattern (dog sniff during traffic stop). Would be interested to hear people's thoughts on how the case will go once argued. My guess is it will be a plurality opinion with Sotomayor, Kagan, and Ginsburg saying the sniff was illegal, scalia joined by some others saying the deminimus exception to the 4th amendment is unconstitutional but rejecting the magistrate's findings and determining that the officer had reasonable suspicion, and some other combination saying the deminimus exception is constitutional under these facts because the backup was called before teh conclusion of the traffic stop. However, I think the decision will be such that it will have absolutely zero precedent value outside the facts of this case.
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Jan 29, 2015 15:54
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evilweasel posted:A complex cocktail of chemicals is used because doctors won't participate, and someone who seemed qualified proposed the three-drug process a while back and some state went with it and got it through the inevitable appeals. States don't like to experiment with execution processes because a new one will result in a number of appeals and the possibility of spending a lot of money on them while the old ones work "fine". It is true that the state is more interested in minimizing the visible suffering than the actual suffering but that's very different from being "actually about inducing pain and fear into the prisoner". That argument is stupid anyway as the weeks leading up to the execution date and everything involved are going to terrify the prisoner because they know they're going to die soon. It's not like the drug regimen really matters there. the argument about not wanting to experiment is kind of moot now because they've been forced to experiment with new execution drugs by companies refusing to sell them drugs to kill patients with, and i'm not quite convinced that states haven't been able to figure out how to kill people humanely on the cheap. the drug cocktail has been controversial for a long time as being potentially extremely painful since the initial drug is an anesthetic being administered by someone untrained in anesthesiology, and the second is a paralytic, making it impossible for the executors to know if the prisoner is actually conscious or not at the time when the third drug is administered. furthermore, inert gas asphyxiation techniques are well known (i have a little video below), and are used to euthanize animals frequently https://www.youtube.com/watch?v=176eog7mZjc i just find it hard to believe states like oklahoma are trying to be humane when trying to replace a short-acting anesthetic with a drug that's usually used as a sedative and has shown itself to be unpredictable as an anesthetic. true enough about the gas chamber thing, but a literal gas chamber shouldn't be necessary for nitrogen asphyxiation, a simple face mask like those used in anesthesia is capable of delivering a high enough concentration of nitrogen to cause asphyxiation within a minute but in any case, it's looking like states that insist on capital punishment are going to have to spend time and money developing new, humane techniques if they want to continue executing people Condiv fucked around with this message at 16:24 on Jan 29, 2015 |
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Jan 29, 2015 16:01
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amanasleep posted:Yes, but plenty of Gas executions since WW2 is the point. There are 11 since 1976, the resumption of the death penalty, or 0.7% of all executions since '76 (1399, per http://www.deathpenaltyinfo.org/methods-execution). Every state that has gas chambers has it as an alternative method and uses lethal injection as their primary method and no state defaults to gas (Arizona allows people sentenced before '92 to pick lethal gas but defaults to legal injection, California allows people to affirmatively select lethal gas, Missouri allows someone to choose (it is legally unclear who gets the choice) but in practice uses lethal injection, and Wyoming authorizes lethal gas if and only if lethal injection is held to be unconstitutional. "Plenty" is wrong by any reasonable measure and I don't know why you're trying to nitpick with such bad facts.
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Jan 29, 2015 16:19
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evilweasel posted:especially as any ethical doctor would absolutely refuse to testify on the state's behalf that it was humane. That position actually isn't so universal that they wouldn't be able to find anyone-lots of folks in bioethics, including MDs, are pro-capital punishment. It's rather a product of political pressure on the trade associations-the anti groups are really good about doing the textual equivalent of pinning them down with several camera crews.
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Jan 29, 2015 17:00
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Discendo Vox posted:That position actually isn't so universal that they wouldn't be able to find anyone-lots of folks in bioethics, including MDs, are pro-capital punishment. It's rather a product of political pressure on the trade associations-the anti groups are really good about doing the textual equivalent of pinning them down with several camera crews. Yes, that catches the non-ethical ones  . That said, there's a big difference between being pro-capital punishment, and actually using medical training to assist in capital punishment. I think there's a lot of doctors who, even if they are generally pro-capital punishment, would be unwilling to assist in any way and would consider it unethical for other doctors to assist as well. And that's even without pressure from colleagues or the public, which will be much more severe if you're testifying because then your identity cannot be hidden (like it can if you're actually working on the execution).
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Jan 29, 2015 17:07
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evilweasel posted:Yes, that catches the non-ethical ones  All I can say is being anti-death penalty is by no means a mainstay position in the bioethics discourse.
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Jan 29, 2015 17:17
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Don't some certification boards view actions in furtherance of killing prisoners a violation of medical ethics/the Hippocratic oath? I.e. doctors who are found to be assisting the state kill prisoners are censured, have their cert revoked, etc? With board certification being a major part of the credentialing process, not being certified can severely hamper a doctor's ability to practice. I am not familiar with the licensure peculiarities but going off experience from working in a regional medical credentialing office in the past, you pretty much can't get hospital privileges without it.
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Jan 29, 2015 17:26
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Discendo Vox posted:That position actually isn't so universal that they wouldn't be able to find anyone-lots of folks in bioethics, including MDs, are pro-capital punishment. It's rather a product of political pressure on the trade associations-the anti groups are really good about doing the textual equivalent of pinning them down with several camera crews. yeah, it's a bit of a no true scotsman argument. The bigger problem is you have some medical associations (anesthesiologists leap to mind) threatening to de-certify anyone who participates in an execution. So are they not participating because it's a true reflection of their ethics, or are they not participating because they want to keep their license? That, to me seems a little shaky on the ethics front. It would be akin to a state bar threatening disbarment for a lawyer who defends a terrorist. You know...sort of like what this guy wanted: http://www.cnn.com/2007/US/02/02/gitmo.resignation/
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Jan 29, 2015 17:29
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FAUXTON posted:Don't some certification boards view actions in furtherance of killing prisoners a violation of medical ethics/the Hippocratic oath? I.e. doctors who are found to be assisting the state kill prisoners are censured, have their cert revoked, etc? yes. I believe that's the position taken by the governing body for anesthesiologists. And no certification = no hospital privileges.
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Jan 29, 2015 17:30
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Reason #45 to stop relying on that thing we call "medical judgement" in policy and scientific contexts.
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Jan 29, 2015 17:49
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ActusRhesus posted:The bigger problem is you have some medical associations (anesthesiologists leap to mind) threatening to de-certify anyone who participates in an execution. So are they not participating because it's a true reflection of their ethics, or are they not participating because they want to keep their license? Our justice system demands somebody provide a legal defense but there's always the alternative for states to return to methods of execution that don't require medical expertise to carry out. Shooting people just looks ugly and exposes the barbarity of the state murdering its own citizens and makes people feel bad so we'd prefer not to do it, it interferes with our pretensions of enlightenment.
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Jan 29, 2015 18:17
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ActusRhesus posted:yeah, it's a bit of a no true scotsman argument. I think the legal parallel is a little shaky since legal ethics don't preclude the defense of even the most heinous criminals. Morals? Maybe, but ethics, no. You could even say it speaks to the strength of principle, like John Adams' defense of British soldiers, in that you're seeking conviction only for the crimes provably committed by the accused and acquittal of the crimes not provably committed. There's not really an analogue to that kind of principle in assisting/facilitating the execution of a prisoner, because what counters the palliative argument would be where you're assisting/facilitating the death of a patient, as opposed to assisting or easing suicide at their own hand. Of course, I guess there's an argument that such a process would be suicide, simply placing the proverbial "lever" in the hand of the inmate at the time they committed the crime. This, however, makes a lot of assumptions of the CJ system and sentencing process.
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Jan 29, 2015 18:28
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FAUXTON posted:I think the legal parallel is a little shaky since legal ethics don't preclude the defense of even the most heinous criminals. Morals? Maybe, but ethics, no. You could even say it speaks to the strength of principle, like John Adams' defense of British soldiers, in that you're seeking conviction only for the crimes provably committed by the accused and acquittal of the crimes not provably committed. The point I was trying (badly) to make is that it's very uncomfortable for me when professional orgs or governments start using regulatory authority to dictate behavior in what are really moral debates. I don't see much difference between "we will decertify you if you assist in this legal execution" and "we will prosecute you if you defend this terrorist" (the article wasn't clear on that point but stimpson also lobbied for charging defense firms with material support to terror)
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Jan 29, 2015 21:09
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ActusRhesus posted:The point I was trying (badly) to make is that it's very uncomfortable for me when professional orgs or governments start using regulatory authority to dictate behavior in what are really moral debates. I don't see much difference between "we will decertify you if you assist in this legal execution" and "we will prosecute you if you defend this terrorist" (the article wasn't clear on that point but stimpson also lobbied for charging defense firms with material support to terror) 'Don't help kill somebody against their will' is a pretty solid line to require physicians to stay behind if they want to be certified to practice medicine. We entrust physicians with a lot of power and give them a lot of legal protections in return, and we have a very compelling interest in ensuring that they are very careful about only using that to help people.
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Jan 29, 2015 21:20
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captainblastum posted:'Don't help kill somebody against their will' is a pretty solid line to require physicians to stay behind if they want to be certified to practice medicine. We entrust physicians with a lot of power and give them a lot of legal protections in return, and we have a very compelling interest in ensuring that they are very careful about only using that to help people. What about chemical castration? Or forced sedation in a prison? There are plenty of times doctors in the penal system are called on to do things against the patient's wishes.
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Jan 29, 2015 21:26
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Doctors that perform services that are not for the benefit of the patient should not retain their certification. If a patient consents (and is truly able to consent) to something like chemical castration, that's one thing. Castrating somebody without their consent is immoral and unethical. Forceable sedation is fuzzy and should be evaluated on a case by case basis, a combative person experiencing a psychotic episode is not able to take care of their own self, and we should be able to trust and rely on a doctor to make a decision that is solely in the interest of the patient's health, free from interference or coercion by the penal system. No execution is ever for the benefit of the patient.
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Jan 29, 2015 21:37
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evilweasel posted:There are 11 since 1976, the resumption of the death penalty, or 0.7% of all executions since '76 (1399, per http://www.deathpenaltyinfo.org/methods-execution). Every state that has gas chambers has it as an alternative method and uses lethal injection as their primary method and no state defaults to gas (Arizona allows people sentenced before '92 to pick lethal gas but defaults to legal injection, California allows people to affirmatively select lethal gas, Missouri allows someone to choose (it is legally unclear who gets the choice) but in practice uses lethal injection, and Wyoming authorizes lethal gas if and only if lethal injection is held to be unconstitutional. "Plenty" is wrong by any reasonable measure and I don't know why you're trying to nitpick with such bad facts. It was applied in over 600 executions from 1924-1972, and fear of being compared to the Nazis was never an impediment to its use. Rather, the high cost of maintenance and growing publicity of its horrifying cruelty restricted use after 1976.
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Jan 29, 2015 22:10
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ActusRhesus posted:What about chemical castration? Or forced sedation in a prison? There are plenty of times doctors in the penal system are called on to do things against the patient's wishes. Those aren't considered harm in the same way literally killing someone is. If it was palliative, consensual, and requested without reservation or impairment that would be one thing but with execution you're administering death to another person based on the order of a third party regardless of what the patient's wishes are. The comparison to defending terrorists is flawed since there would be no ethical basis to take action against counsel for a terror suspect unless they're conducting themselves unethically in doing so, meaning actions which would be universally unethical like bribing a judge or breaching confidentiality, etc. Execution involves the willful causing of irreparable harm to a typically-unwilling individual. You'd have to make a specific ethics loophole for "following orders of the state."
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Jan 29, 2015 22:23
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FAUXTON posted:Those aren't considered harm in the same way literally killing someone is. If it was palliative, consensual, and requested without reservation or impairment that would be one thing but with execution you're administering death to another person based on the order of a third party regardless of what the patient's wishes are. The comparison to defending terrorists is flawed since there would be no ethical basis to take action against counsel for a terror suspect unless they're conducting themselves unethically in doing so, meaning actions which would be universally unethical like bribing a judge or breaching confidentiality, etc. Execution involves the willful causing of irreparable harm to a typically-unwilling individual. You'd have to make a specific ethics loophole for "following orders of the state." Which our state just had to do re: lawyers assisting in the establishment of medicinal marijuana plants which are legal under state law but illegal under federal law, so it's not unheard of.
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Jan 29, 2015 22:27
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evilweasel posted:A complex cocktail of chemicals is used because doctors won't participate, and someone who seemed qualified proposed the three-drug process a while back and some state went with it and got it through the inevitable appeals. States don't like to experiment with execution processes because a new one will result in a number of appeals and the possibility of spending a lot of money on them while the old ones work "fine". It is true that the state is more interested in minimizing the visible suffering than the actual suffering but that's very different from being "actually about inducing pain and fear into the prisoner". That argument is stupid anyway as the weeks leading up to the execution date and everything involved are going to terrify the prisoner because they know they're going to die soon. It's not like the drug regimen really matters there. I'm sure Ben Carson is available and would be more than happy to do so.
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Jan 29, 2015 22:44
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ActusRhesus posted:Which our state just had to do re: lawyers assisting in the establishment of medicinal marijuana plants which are legal under state law but illegal under federal law, so it's not unheard of. A rule that medical ethics do not preclude a doctor from killing their patients on the order of the state is analogous to a rule that legal ethics do not preclude a defense attorney working as an agent of the prosecution to convict their clients. It would be a complete and utter repudiation of the entire foundation of modern medicine.
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Jan 29, 2015 22:45
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captainblastum posted:Castrating somebody without their consent is immoral and unethical. Chemical castration is giving someone antiandrogens to reduce libido and sexual function. It is considered "humane" by many because it is reversible with discontinuation. Long-term treatment can cause permanent issues not related to sexual function, because sex hormones do more than control your boner.
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Jan 29, 2015 22:51
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Aleph Null posted:Chemical castration is giving someone antiandrogens to reduce libido and sexual function. I'm pretty sure chemical castration is not the term given to reversible therapy.
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Jan 29, 2015 22:55
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E: /\/\ There's an argument for it being therapeutic even when administered without consent. The same can't be said for death.ActusRhesus posted:Which our state just had to do re: lawyers assisting in the establishment of medicinal marijuana plants which are legal under state law but illegal under federal law, so it's not unheard of. How is that even remotely similar? Was the state bar stripping lawyers of their admission because they weren't contacting the BATFE regarding dispensaries who retained their services under the auspices of state law? Or was it a technicality they weren't even enforcing beforehand and acted to clear it from their bylaws as a matter of process? FAUXTON fucked around with this message at 23:25 on Jan 29, 2015 |
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Jan 29, 2015 23:21
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UberJew posted:A rule that medical ethics do not preclude a doctor from killing their patients on the order of the state is analogous to a rule that legal ethics do not preclude a defense attorney working as an agent of the prosecution to convict their clients. It would be a complete and utter repudiation of the entire foundation of modern medicine. Speaking as a bioiethicist, no, that's not how it works. There are no absolute bars on behavior in professional ethics systems- all rules have exceptions. Medical ethics is not a pure deontological system any more than the constitution is. You're also assuming a client-practitioner relationship is established in this scenario, which is not necessary to its function. To make the legal analogy, there are circumstances in which a defense attorney is in fact mandated to work as an agent of the state to collect information to convict their client. The justification structures are actually pretty similar. Discendo Vox fucked around with this message at 23:29 on Jan 29, 2015 |
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Jan 29, 2015 23:26
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Discendo Vox posted:Speaking as a bioiethicist, no, that's not how it works. There are no absolute bars on behavior in professional ethics systems- all rules have exceptions. Medical ethics is not a pure deontological system any more than the constitution is. You're also assuming a client-practitioner relationship is established in this scenario, which is not necessary to its function. Oh, I should make my perspective clear. When I say a complete repudiation of the foundation of modern medicine I meant it would be a repudiation because it is vile, morally repugnant, and an insult to humanity in general and our nation in particular, not because it can't be justified with sufficient argument. I was making a deontological argument because my position on the death penalty is deontological. Much like, realistically, you can be personally responsible for the deaths of thousands of civilians and still be a Nobel peace prize recipient you could be a doctor and engage in the state's murder of it's own citizens. You're just an insult to your profession and species. I was attempting to make an analogy that expressed the horror and wrongness of the idea.
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Jan 29, 2015 23:38
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You made a very poor argument, then.
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Jan 29, 2015 23:42
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Discendo Vox posted:Speaking as a bioiethicist, no, that's not how it works. There are no absolute bars on behavior in professional ethics systems- all rules have exceptions. Medical ethics is not a pure deontological system any more than the constitution is. You're also assuming a client-practitioner relationship is established in this scenario, which is not necessary to its function. What exception can you think of that would make it ethical for a doctor to assist in the administration of an execution as they exist in the US today?
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Jan 30, 2015 00:19
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captainblastum posted:What exception can you think of that would make it ethical for a doctor to assist in the administration of an execution as they exist in the US today? Here is Atul Gawande's article on the subject: http://www.nejm.org/doi/full/10.1056/NEJMp068042 The main defense used by the doctors is that the execution is going to happen and their presence can limit the amount of pain and suffering of the patient. quote:Yet he also felt an obligation not to abandon inmates in their dying moments. “We, as doctors, are not the ones deciding the fate of this individual,” he said. “The way I saw it, this is an end-of-life issue, just as with any other terminal disease. It just happens that it involves a legal process instead of a medical process. When we have a patient who can no longer survive his illness, we as physicians must ensure he has comfort. [A death-penalty] patient is no different from a patient dying of cancer — except his cancer is a court order.” Dr. D said he has “the cure for this cancer” — abolition of the death penalty — but “if the people and the government won't let you provide it, and a patient then dies, are you not going to comfort him?” It's actually a quite good argument, but I feel it fails because the participation of the physicians makes the 'cure' less likely.
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Jan 30, 2015 00:28
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captainblastum posted:What exception can you think of that would make it ethical for a doctor to assist in the administration of an execution as they exist in the US today? One could make the argument that life in prison is less ethical because of how inhumane the system is.
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Jan 30, 2015 00:29
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Obdicut posted:Here is Atul Gawande's article on the subject: Ironically in many cases this is not true because the presence of a doctor is required by law (as mentioned in the article).
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Jan 30, 2015 00:39
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The article is, while well-written, also badly reasoned. A set of interviews with an unrepresentative sample of doctors with no actual discussion of the underlying basis for the arguments for or against their participation in the process beyond their personal intuitions and the AMA Code. The AMA Code is, by the way, nonbinding (the AMA pledge is to the Principles, not the code) and riddled with exceptions that suggest that as a product of the professional organization, its primary purpose is to deflect direct credibility attacks on physicians involved in the process-a part of why physicians apparently never lose Code-based license challenges based on their participation). Especially frustrating is that the author says that he thinks physicians who do this are wrong to do so and are wrong to avoid identification, but then doesn't actually say why.
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Jan 30, 2015 01:03
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Obdicut posted:Here is Atul Gawande's article on the subject: This argument doesn't work for me, because it is based on the faulty notion that the execution must happen. Whether or not the execution occurs is entirely up the individuals involved in performing it - it is not an incurable disease or any other truly terminal condition. The same argument could be used to defend a doctor helping a torturer, and I think that that is a pretty good demonstration of why it doesn't work. Trabisnikof posted:One could make the argument that life in prison is less ethical because of how inhumane the system is. And the moral and ethical choice in that situation is to improve the quality of life for the incarcerated until it is humane, not kill people against their will. There's no rationalization that will change the fact that the process is one of killing somebody who cannot harm you without their consent. No matter how hard we try to obfuscate and hide that, it will always be true. The privileges that we give physicians come from an understanding that they will use those privileges to help, not harm.
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Jan 30, 2015 02:49
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Let's take this argument to another thread.
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Jan 30, 2015 03:08
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FAUXTON posted:E: /\/\ There's an argument for it being therapeutic even when administered without consent. The same can't be said for death. My point was simply that professional ethics as defined by a regulatory body can be somewhat fungible depending on said body's composition.
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Jan 30, 2015 03:36
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evilweasel posted:Let's take this argument to another thread. Thank you.
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Jan 30, 2015 13:28
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Question for lawyergoons. Toca v. Louisiana settled last week, but SCOTUS just scheduled oral arguments for it anyways. This is a mistake, right? Is there even an injured party in a settled case? In other news, the Atlantic rolled out a pithy metaphor for King v. Burwell. quote:On July 21, 2007, my daughter Maggie and I fought our way into a crowded Dublin bookstore and bought not one but two copies of Harry Potter and the Deathly Hallows, which was published worldwide that day. Over the next 36 hours, we raced each other through the pages to learn the fate of Harry Potter, his Hogwarts friends, and the world of wizardry in general.
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Feb 3, 2015 15:21
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Forever_Peace posted:Question for lawyergoons. Once a case is settled the Court no longer has jurisdiction as there is no longer a case or controversy. However the Supreme Court doesn't google things and do things on their own: it's the responsibility of the parties to notify the Supreme Court the issue is now mooted and withdraw the appeal, at which point the Supreme Court will cancel arguments.
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Feb 3, 2015 15:28
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Forever_Peace posted:
That is a horrifically tortured analogy. I mean I don't think it's wrong, the past perfect is a tense we only use in reference to other events whether explicit or implied, much like a single passage in an act of law, but that is a terrible, terrible way of kicking off an explanation that is probably going to just confuse most people who read it.
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Feb 3, 2015 15:43
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The question of how to execute state prisoners ought to be a moot point because capital punishment is barbaric and it's a national tragedy that it continues
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Feb 3, 2015 18:32
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