A Slight Detour, to the Death Penalty
I thought it would be nice to take a break, if only a brief one, from talk about primaries and the upcoming election. I’ll blame the fact that I decided to write about a Supreme Court case on my law school withdrawals (which, fortunately or unfortunately, will end next week and will most likely mean another sabbatical from LCK) and hope that you don’t mind too much.
Today the Supreme Court heard a case involving the use of lethal injection in Kentucky. Specifically, the court heard the case of two inmates in Kentucky that are arguing that if the first drug in a three-drug cocktail isn’t administered completely or effectively then they will suffer excruciating pain, in violation of the Constitution’s prohibition on cruel and inhumane punishment, but will not be able to let anyone know they are suffering this horrendous pain because the second chemical administered paralyzes them. What the inmates are arguing is that the procedure itself is unconstitutional not that capital punishment in general violates the Constitution. However, even though the inmates aren’t challenging the legitimacy of the death penalty itself this case could have the largest impact on capital punishment since the reinstatement of the practice in 1976.
35 of the 36 states that have the death penalty in this country use the same three-drug cocktail that Kentucky uses. As soon as the Court granted certiorari to the case many states in the country suspended executions because they wanted to wait and see how the Court ruled on the case. If the Court were to deem the practice unconstitutional then states would forced to find a new way to administer lethal injections or shift to alternative means of executions (some of which, I’m speaking about the gas chamber in particular, have their own Constitutional problems) if they wished to continue executing prisoners.
The case comes at an interesting time as New Jersey recently abolished the death penalty and has urged other states to do the same. The idea that the lethal injection procedure could even be called into question in a Constitutional sense demonstrates just how much society’s views on the death penalty have changed as of late. We are living at a time when our nation (hopefully) is moving away from the barbaric days of old and towards a more civil and progressive era when we no longer allow a state to kill its citizens.
Obviously, I’m not a big fan of the death penalty. I’m not going to use this post to make every argument under the sun as to why it should be outlawed but I will ask the question (as Sweet Dee asked on It’s Always Sunny in Philadelphia): why is it that those who are so against abortion are often so in favor of the death penalty? Anyway, now that I have that out of my system, on to what the Court will likely decide to do in this case.
This Supreme Court is split, generally, 5/4 with conservatives holding the decisive vote. However some of those conservative justices aren’t necessarily huge fans of the death penalty, meaning that they could be open to voting in favor of the inmates. This is 2008 though, and there’s a Presidential election just around the corner. The Court isn’t likely to want to make a big decision that would cripple, for a while at least, the death penalty in this country this close to an election because (for a slew of reasons, not the least of which are the facts that there are some justices ready to retire and that the Supreme Court hates to overrule itself unless absolutely must) it wants to see what the next four years likely have in store for the nation before making a big splash. Due to this fact the justices are likely to walk a fine line of sorts and say that, if administered properly, the three-drug cocktail does not pose an undue risk of pain, thereby skirting the issue of cruel and inhumane punishment.
This likely result saddens me because it would mean the justices are taking the easy way out. Instead of saying, in a stark and definitive manner, whether the current court would be inclined to repeal the death penalty or not, they would be using the particulars of the case to dodge the question. In order for another inmate to bring a suit (assuming the court rules in a manner similar to how I think it will rule) an inmate would need to argue that particular state has instituted a policy that does not protect against, or perhaps even encourages, an improper administration of the three-drug cocktail, thereby leading to cruel and unusual punishment. Getting a case like this to the Supreme Court would take somewhere around 10 years and even if it were successfully brought the Court’s ruling would really only impact on a single state (the state against which the hypothetical suit was brought) and all the Court could really do is say “make sure you execute people the right way”; it wouldn’t stop the state from killing people.
Hopefully everyone enjoyed this little diversion from Election ’08 mania, sorry if the topic was a bit of a downer.