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Tennessee POSTPONES executions after botched attempt leaves inmate in critical condition · INSIGHT TODAY

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  Speaker 1: For more on this, let's bring in John Yoo, a
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  Speaker 1: former deputy assistant attorney general and the UC Berkeley law
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  Speaker 1: professor and former Justice Thomas law clerk.
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  Speaker 2: John, thank you very much for joining us this afternoon.
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  Speaker 1: I want to get into this point that's reported in
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  Speaker 1: The New York Times that, quote, her condition sets the
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  Speaker 1: stage for an unprecedented ethical and legal quagmire.
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  Speaker 2: A future attempt to execute Ms.
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  Speaker 1: Pike could hinge on whether she is determined to be
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  Speaker 1: capable of what the Supreme Court has described as rational understanding.
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  Speaker 1: of the reason she is to be put to death.
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  Speaker 1: And the question here is, is she now in a
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  Speaker 1: mental state? Has she been damaged so much that she
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  Speaker 1: doesn't have understanding of what's happening?
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  Speaker 2: Do you think that could prevent another attempt at execution?
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  Speaker 3: It's certainly a claim that her lawyers are going to raise.
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  Speaker 3: But that just means that the state has to step back,
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  Speaker 3: examine what went wrong, give her time to recover, and
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  Speaker 3: then either improve the system it's using now or use
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  Speaker 3: an entirely different execution method. What we should remember is
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  Speaker 3: that the Constitution does not prohibit the death penalty. It
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  Speaker 3: leaves the question up to the states. And it can
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  Speaker 3: use different methods as long as they're not considered cruel
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  Speaker 3: and unusual punishment. And the Supreme Court has upheld other methods,
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  Speaker 3: like the use of firing squads. It used to allow
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  Speaker 3: the electric chair. The problem here for Tennessee is they
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  Speaker 3: were trying to use a more humane method, and they
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  Speaker 3: got it wrong. But that should not feed these ideas
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  Speaker 3: that the death penalty itself somehow violates the Constitution or
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  Speaker 3: that it can't be carried out in a legal way.
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  Speaker 1: When you're talking about cruel and unusual, it seems likely, too,
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  Speaker 1: that her attorneys will argue that the fact that this
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  Speaker 1: was a botched execution means the entire package is cruel
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  Speaker 1: and unusual and she shouldn't be subjected to any execution again.
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  Speaker 1: Do you think that falls short of a compelling argument?
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  Speaker 3: I don't think that's going to work. Look, all around
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  Speaker 3: the country, there are these death penalty, anti-death penalty advocates,
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  Speaker 3: and they try to invent any new argument, which they
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  Speaker 3: would then use nationwide to try to stop every execution.
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  Speaker 3: But because the state failed the first time through errors
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  Speaker 3: of its own does not invalidate the sentence, does not
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  Speaker 3: invalidate the constitutionality of the death penalty. And it's important
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  Speaker 3: to remember why. It's because there are certain crimes, certain murders,
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  Speaker 3: like the one that was committed here, which was almost
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  Speaker 3: demonic in its nature. There are certain crimes which are
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  Speaker 3: so heinous that the death penalty is considered the only
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  Speaker 3: way both to punish the defendant, but also to create
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  Speaker 3: a deterrent to try to stop people from doing it
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  Speaker 3: in the future. And so that interest has to be
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  Speaker 3: taken into account, not just the idea.
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  Speaker 2: That, yes, she suffered.
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  Speaker 3: Yes, she suffered harm from the state's mistake. But that
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  Speaker 3: doesn't mean the state can't fix its procedures and try again.
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  Speaker 1: Turning to here in the Supreme Court, it's getting cool out.
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  Speaker 1: It means time for a new Supreme Court term. Take
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  Speaker 1: a look at some of the major cases that the
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  Speaker 1: high court is going to hear this year. A dispute
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  Speaker 1: over holding whether oil and gas companies are liable for
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  Speaker 1: climate change, whether states can exclude religious schools from a
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  Speaker 1: taxpayer-funded preschool choice program. gun rights and state bans on
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  Speaker 1: certain semi-automatic rifles like the AR-15, and voting rights and
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  Speaker 1: efforts to require proof of U.S. citizenship when registering to vote.
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  Speaker 1: When you look at this list, John, what do you
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  Speaker 1: think the Supreme Court could make the largest statement on,
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  Speaker 1: and what do you expect to be the most contentious?
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  Speaker 3: It's interesting. This is actually the court returning to what
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  Speaker 3: you might consider its meat and potatoes diet. The last
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  Speaker 3: few years, it's been really focusing on reordering the federal government,
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  Speaker 3: expanding presidential power in many important ways, and placing more
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  Speaker 3: of the bureaucracy under political elected control. Here, it's getting
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  Speaker 3: back to the individual rights that the Roberts Court has
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  Speaker 3: spent two decades expanding, the right to bear arms, the
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  Speaker 3: right of religious minorities. And it is being pulled into— I
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  Speaker 3: don't think it wants to do this, but it's being
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  Speaker 3: pulled into the large amount of controversy over elections. But
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  Speaker 3: I think you're right. The very first case you mentioned,
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  Speaker 3: Suncor versus Boulder, can cities and states, at the behest of,
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  Speaker 3: I think, environmental activists, sue energy companies on this claim
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  Speaker 3: that they somehow hid the effects of climate change. And
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  Speaker 3: I think that interferes. And I filed an amicus brief
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  Speaker 3: with the card arguments. I think that interferes with the
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  Speaker 3: national government's authority over national security, foreign affairs, and national commerce,
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  Speaker 3: at a time we're in the middle of a war,
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  Speaker 3: where our enemy, Iran's, only real defense is to try
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  Speaker 3: to drive up energy prices in the United States.
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  Speaker 2: It's going to be a big year. John Yoo, thanks
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  Speaker 2: for joining us.
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  Speaker 3: Thank you.
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  Speaker 2: And catch full shows streaming now on Fox 1.