The problem with the claim that lethal injection for the death penalty is cruel and unusual punishment

While the chief justice’s skepticism was not unexpected, Justice Stephen G. Breyer’s response to Mr. Verrilli’s argument was a surprise. Justice Breyer told Mr. Verrilli he had read scientific articles supporting the one-drug protocol that were cited in the briefs filed by the inmates and had found them confusing.

“So I’m left at sea,” he said. “I understand your contention. You claim that this is somehow more painful than some other method. But which? And what’s the evidence for that? What do I read to find it?”

“I ended up thinking, of course there is a risk of human error,” Justice Breyer continued. “There is a risk of human error generally where you’re talking about the death penalty, and this may be one extra problem, one serious additional problem. But the question here is, Can we say that there is a more serious problem here than with other execution methods?”

Often, such doubts about the quality of the evidence lead the court to send a case back to the lower courts for further factual development. Mr. Verrilli said that although the record was sufficiently clear for the justices to proceed, “it certainly would be a reasonable thing to do” to send the case back to the Kentucky courts, which rejected the challenge to the three-drug protocol without considering whether the availability of the single-drug alternative meant that inmates were being subjected to an unnecessary risk of pain. . . . .

The claim is that the first injection cannot be guaranteed to anesthetize the killer before the other drugs take effect. By this logic of requiring a guarantee, executions through a firing squad or hanging or electrocution would all have to be banned.

But the problem is actually even broader. We can't even guarantee the criminal's safety in prison. Could the criminal be injured? Could he be stabbed by another criminal? My own guess is that those arguing to end executions understand this problem and probably really hope that the case will be sent back to the lower court. Sending the case back to the lower court could be used to continue to put on hold executions in the US for years.

What about the claim that the second injection that paralyzes the killer before he is executed is unnecessary? I can think of several good reasons for it, but the primary one is why would you want the criminal making gestures and thrashing around during the execution?

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Anonymous Mike from WI said...

One thing I pointed out on Volokh.com during a discussion of this is that just because a punishment may be cruel, that does not make it BOTH cruel and unusual; a common cruel punishment, therefore, does not satisfy the Constitutional prohibtion IMHO.

1/08/2008 8:19 AM  
Blogger Rob said...

I would further argue that simply being painful constitutes neither cruel nor unusual. I think, quite frankly, that looking at what execution methods were common at the end of the 18th century and the fact that they were not deemed cruel or unusual refutes such silliness. Hanging and shooting were common, efficient and effective methods of execution, and should be yet.

1/08/2008 4:12 PM  

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