Patterico's Pontifications

4/16/2008

Supreme Court Upholds Lethal Injection (Updated)

Filed under: Constitutional Law,Court Decisions — DRJ @ 8:08 am

[Guest post by DRJ]

In a 7-2 decision, the Supreme Court upheld Kentucky’s use of lethal injections:

“We … agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment,” Chief Justice John Roberts said in an opinion that garnered only three votes. Four other justices, however, agreed with the outcome.

Roberts’ opinion did leave open subsequent challenges to lethal injection practices if a state refused to adopt an alternative method that significantly reduced the risk of severe pain.

Justices Ruth Bader Ginsburg and David Souter dissented.”

The Baze opinion is here. Here are the votes/positions:

“ROBERTS, C. J., announced the judgment of the Court and delivered an opinion, in which KENNEDY and ALITO, JJ., joined. ALITO, J., filed a concurring opinion. STEVENS, J., filed an opinion concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined. BREYER, J., filed an opinion concurring in the judgment. GINSBURG, J., filed a dissenting opinion, in which SOUTER, J., joined.”

UPDATE – As always, don’t miss Beldar’s analysis. Here’s a taste:

“But a mostly well-functioning method of execution — as an instrument of public justice in those states that have chosen the death penalty — ought not be halted because it’s short of perfect, or because there are arguably better methods and protocols “out there” yet to be discovered, defined, and implemented.”

In addition, don’t miss the part where Beldar explains the relevance of eyelash-tickling.

— DRJ

28 Responses to “Supreme Court Upholds Lethal Injection (Updated)”

  1. Once again, SCOTUS – instead of settling an issue – just stirs up the sediment and clouds the pond.
    With so many different concurrances, this will no doubt generate another couple hundred, or more, appeals.
    Thanks guys!

    Another Drew (f9dd2c)

  2. I have always considered the lethal injection machine to be mostly a product of Americans’ love for gimmicks. Not quite Rube Goldberg but definitely Popiel.

    The death penalty is a serious business and it should be carried out in a serious, business-like way. Even if that way is not pretty, sanitary or seeming to just put somebody to sleep.

    I thought the Court showed exceptional deference to the States’ wisdom/foolishness. I liked Stevens’s opinion especially.

    nk (6b7d4f)

  3. Does this affect California’s use of the death penalty?

    aunursa (1b5bad)

  4. Specifically the legality of lethal injection in California?

    aunursa (1b5bad)

  5. One time I had someone who understood such things explain to me that the 8th Amendment banned punishments which were both cruel and unusual. Simply being cruel wasn’t enough, nor was being unusual; it had to be both.

    All of these anti-death-penalty cases seem to be based on claims of cruelty. This one was particularly extreme. But where is the “unusual” part? Death by hanging isn’t exactly a walk in the park, but it was the usual way of doing executions in much of the US for a very long time. So it may have been “cruel” but it wasn’t “unusual” and thus was acceptable under the 8th Amendment — or so I understand it.

    Of course, what I understand doesn’t matter. What’s important is what SCOTUS understands. And when it comes to Justice Stevens, apparently what he understands is “To HELL with the Constitution; I know what’s right and that’s how I’m going to rule!”

    Steven Den Beste (99cfa1)

  6. Steven Den Beste,

    I have asked the same q – does a punishment have to be both cruel AND unusual – in many a forum and have never gotten a good answer. Thanks.

    All,

    A corollary q for the lawyers here, based on Steven’s explanation: are the various moratoria and general reluctance to use capital punishment making it “unusual?”

    I know it wasn’t so back in the day when the constitution was written, and I understand that many judges want to “evolve” (their word choice, usually, not mine) the meanings of words rather than stick to the original but, by making capital punishment so much less frequent, are they paving the way to declare it unusual?

    fwiw, I oppose cap punishment myself (I think it’s safer to constrict govt’s power to kill its own citizens; see for example, all of history), but also think that allowing justices to spin out of the plain meaning of the law is an even more dangerous slope. So I’m not looking for any particular answer here, just a good analysis.

    Oh, and is there not a parallel between my position – that govts are too dangerous to be entrusted with such a power – and the 2nd amendment that implies the same thing and adds “so arm yourself against them?”

    ras (fc54bb)

  7. If this mish-mash or glop of a decision doesn’t strikingly make the point that we cannot allow military prisoners such as at Gitmo to touch American soil, nothing will.

    If a walking dead man has a right to question the most minimal irritation or discomfort, how in hell would we expect the courts would not grant habeus corpus to a human being who presents himself at the bar?

    I am reminded of the end quote of The Bridge On the River Kwai.” “Madness.”

    Ed (f28e9a)

  8. ras…
    …power over its’ citizens…
    Once they have been convicted of homicide (murder), haven’t they broken the compact? Do they not relinquesh a great many of the rights of a citizen?
    My personal belief is that once that conviction is affirmed, they are no better than animals, and should be put down post-haste to ensure that they can do no more harm to civil society.

    And, Ed hits it downtown re GTMO.

    Another Drew (f9dd2c)

  9. Another Drew,

    Once they have been convicted of homicide (murder), haven’t they broken the compact?

    Yes.

    Do they not relinquesh a great many of the rights of a citizen?

    Yes.

    My personal belief is that once that conviction is affirmed, they are no better than animals, and should be put down post-haste to ensure that they can do no more harm to civil society.

    The world is better off without them. If one of them, for example, killed my child, I would take revenge with my own hands, then take my chances in front of a jury. Your moral argument is solid; my opposition is one of prudence:

    Towit: Do we not risk even greater harm by allowing the govt to kill? For every historical tale of, say, a murderer who horrifically took the lives of innocents, there is one of a govt-sanctioned killer who did the same to hundreds, thousands, or more.

    The frequency of the govt killings is relatively lower, but their death toll is much higher; i.e freq x toll is higher by govt than by individual, by orders of magnitude I would say. I know that the scum deserve to die, but I more fear that other scum will take control of the killing apparatus of the state. It has happened too many times before.

    And, Ed hits it downtown re GTMO.

    Agreed.

    ras (fc54bb)

  10. Towit: Do we not risk even greater harm by allowing the govt to kill? For every historical tale of, say, a murderer who horrifically took the lives of innocents, there is one of a govt-sanctioned killer who did the same to hundreds, thousands, or more.

    As it applies in this country, The difference is that where the murderer took the lives of innocents, the government-sanctioned killer took the lives of the guilty.

    If scum were to somehow take control of the state, do you think they’d let a law against killing stop them?

    Steverino (e00589)

  11. I don’t agree with Ed’s position re Gitmo, but he is certainly right in calling this mish-mash and glop. I’m not even sure we can call the Court’s opinion a plurality opinion. Three justices signed on to concurrences that are really dissents (Stevens and Thomas-Scalia); one justice said he was concurring in the result but really concurred in the dissent (Breyer), just disagreeing with the dissent on how to apply the facts of the case; and two justices dissented, but not very sharply (Ginsburg-Souter).
    What you have is six justices agreeing that lethal injection is valid, as long as it is done correctly (but disagreeing on how to decide whether or not it is being done correctly); two justices saying lethal injection is valid, even if it is not done correctly; and one justice (Stevens) calling for the courts to abolish the death penalty altogether.

    I don’t think it will stir up that much litigation about lethal injection per se, however, since eight justices are on record now as approving the protocols used in most other states.

    Motrin, anyone?

    kishnevi (2dbd61)

  12. Steverino,

    If scum were to somehow take control of the state, do you think they’d let a law against killing stop them?

    If they took control by storming the Bastille, so to speak, then no law would stop them.

    But if, as is more the case these days, it were a drip-drip-drip process by which freedoms were steadily being eroded, that’d be a different story where, I think yes, having additional legal prohibitions against the power of the state could help a great deal.

    ras (fc54bb)

  13. But if, as is more the case these days, it were a drip-drip-drip process by which freedoms were steadily being eroded, that’d be a different story where, I think yes, having additional legal prohibitions against the power of the state could help a great deal.

    It would be just one more hurdle for them to jump. Seriously, those that really would oppress the masses wouldn’t let a law get in the way: they would find a way around it, or change the law.

    Steverino (e00589)

  14. Steverino,

    those that really would oppress the masses wouldn’t let a law get in the way: they would find a way around it, or change the law.

    They do try but the checks and balances hold them at bay long enough for resistance to form. Here we are having a free discussion, for example, which many of them would want to ban if they could, and are incrementally trying to make that happen.

    No armor is perfect, but it beats having none.

    ras (fc54bb)

  15. What is the rational basis for the second drug that paralyzes movement?

    If the first drug isn’t administered properly, you will not know by looking at the inmate.

    steve (c82076)

  16. ras, I don’t buy into the “we can’t have capital punishment because someone bad might get elected in the future” argument. There are existing checks on any one person causing the harm you imagine. It would take a raft of these blackguards operating in concert to perform such perfidy. If that were to happen, we’d have a lot more to worry about than capital punishment.

    The Founding Fathers, who were arguably more afraid of the wrong sorts being elected than any of us, had no trouble with imposing the ultimate penalty when it was called for.

    Steverino (e00589)

  17. ras…
    I can only reply that “Governments are constituted among men” to do those things in our names that we believe have to be done to protect the society that we have created for ourselves.

    A great deal of the argument IMO over the death penalty derives from the confusion in the King James Bible re the taking of lives. (Boy, I hope I get this right)
    Anyway, as I recall, the King James Bible states the commandment as “Thou shalt not Kill”;
    whereas, the original Hebrew (or Aramaic) was (as Dennis Prager constantly corrects), “Thou shalt not Murder”.

    Therein lies our confusion, because they are two different things. If killing was bad, the taking of a life in self-defense would be proscribed; but, it is not. Governments are charged by their creators (us) to protect society, and by extension, us, from the wild beasts that roam the Earth (both of the two and four legged variety). When a lion or bear kills, we put them down. We should do no less if it is in the form of a man/woman.

    The basic problem is that confused Justices (see: Stevens, et al) have allowed this mess to develop and have turned DP law into a fourth-ring at Barnum & Bailey.

    Another Drew (f9dd2c)

  18. Another Drew,

    The kill/murder distinction you describe in the Bible is as I understand it too, so I’m pretty sure you got it right.

    As I said earlier: morally, you’re right.

    But still, when I tote up the historical unjust killing by individual murderers and compare it to the same thing as done by pavers of the road to hell govts … man, do I want checks and balances, lots of them.

    I’m willing to overdo it, too, to provide a margin of safety, just cuz the historical numbers weigh so much more heavily on one side than on the other. And I say this notwithstanding the admirable overall record of democracies in this regard.

    ras (fc54bb)

  19. Well, I understand that governments are not to be trusted easily, and should be watched closely.
    Having said that, I think that though our government is not perfect, it is much farther along the scale towards “just” than those which you refer to historically.
    What weaknesses in the checks & balances handed down by the founders bother you?
    Which need to be strengthened?
    Which are the governments that you refer to as “…done by pavers of the road to hell govts…” ?
    I would like to be able to discuss apples, not oranges.

    Another Drew (f9dd2c)

  20. Drew and Ras–true, the Bible says what you said it means when it said “Do not kill”.
    Of course, in the system that developed from the Bible, it was harder to convict a person of a capital crime than it is now–and there were more capital crimes on the books, too. (One of the reasons we know the Gospels don’t present an accurate account of Jesus’ trial before the Sanhedrin is because those accounts conflict, on almost every point, with the procedures required in capital crimes by Jewish law.)

    BTW, when the Decalogue says “Do not steal”–it wasn’t talking about stealing material property. It was talking about kidnapping.

    kishnevi (3806de)

  21. My extended take is here.

    Beldar (848a05)

  22. Kishnevi,

    There are other prohibitions against stealing property, but I believe you are correct that the Commandment is especially against kidnapping as its position implies it is a capital offense, whereas one who steals money need only give it back.

    Another Drew,

    Having said that, I think that though our government is not perfect, it is much farther along the scale towards “just” than those which you refer to historically.

    Agreed.

    What weaknesses in the checks & balances handed down by the founders bother you? Which need to be strengthened?

    1. no practical check on the Supreme Court, which can churn out bad decisions much faster than amendments can be passed to fix them.

    2. not the Founders’ fault, but the Senate should not be elected directly – that’s redundant to what the House is for – but should represent the states as originally designed to prevent the slow and steady devolution of power to the feds. Centralized power is easier to corrupt, and offers little in the way of counter-examples (a.o.t. 50 petri dishes that can be compared to each other).

    3. States should raise their own taxes to pay to the feds (feds can keep the right to tax the people directly only when the states welsh on their debts, to avoid a repeat of that same prob as occurred under the Articles of Confederation).

    As you can see, I prefer small, decentralized govt. I’m Canadian, btw, so apologies if I got anything wrong.

    Which are the governments that you refer to as “…done by pavers of the road to hell govts…” ?
    I would like to be able to discuss apples, not oranges.

    Any govt that commits genocide or just general “silencing” thru murder of its internal opponents. This is much less a prob in a democracy, agreed, but neither can we guarantee it won’t happen, either. And when it does happen – even if only once in a lifetime – the total bad could pass the total good real quick.

    I suspect it would not happen in the US under its current constitution (provided that the courts don’t reinterpret that to meaninglessness as some of Justices try to do) but as a risk/reward proposition, I lean towards the side of (even possibly unnecessary) caution.

    Wish I could be more specific than that. I like to think I can usually defend my args with much greater precision, but in this case I acknowledge that I can’t. Then again, I can’t really shoot it down with any precision either cuz it’s so nebulous.

    Patterico,

    My “pavers of the road to hell” phrase was meant to have strikeout thru it but didn’t, tho it had showed up that way on the preview. You might wish to note the bug to your hosting/comment service.

    ras (fc54bb)

  23. ras,

    If you use the strike button, it will place and (take out the spaces) before and after the word you’re trying to strike-through, showing a strike-through in the preview. You have to use the word (strike) instead of just the (s) to get it into the comment. For example, take becomes take. You just have to remember it for this site because it’s always done that.

    Stashiu3 (76df41)

  24. Hmm… dammit! apparently just having the spaces isn’t enough to throw off the html. That should read “it will place (s) and (/s)” with brackets instead of parentheses. Replace the (s) and (/s) with (strike) and (/strike) and it will work fine.

    Stashiu3 (76df41)

  25. ras,

    Stashiu is right about the way to handle the strike code. However, at this point, that bug has been around so long I think we’ve grown attached to it. It’s like an old uncle that everyone just tolerates.

    DRJ (a431ca)

  26. The Houston Chronicle published responses from several Texas death penalty opponents regarding what will happen after Baze. Like the Supreme Court Justices, they have very different opinions.

    DRJ (a431ca)

  27. You can bet the liberals including AMNESY INTERNATIONAL and the ACLU will be lighting their dumb candles and whinning big time to the left-wing news media

    krazy kagu (9baf51)

  28. I await a transcript of JPS’ latest commentary on the lethal injection decision.

    Seems he’s got a touch of buyer’s remorse:

    Supreme Court Justice John Paul Stevens drew a round of applause Friday night in Chattanooga when he suggested that the recently-euthanized Kentucky Derby horse Eight Bells had probably experienced a more humane death than those who die on death row.

    “I had checked the procedure they used to kill the horse,” Justice Stevens said, expressing surprise to learn it is against the law in Kentucky to kill animals using one of the drugs in a three-drug lethal injection cocktail that many believe is cruel to humans.

    Yet just three weeks ago, the Supreme Court ruled that Kentucky’s use of that cocktail on death row did not constitute cruel and unusual punishment. Justice Stevens concurred with the court’s decision, but conceded his opinion would “generate debate not only about the constitutionality of the three-drug protocol, but also about the justification for the death penalty itself.”

    Justice Stevens talked about the lethal injection case and other recent Supreme Court decisions as he addressed an audience of legal professionals at the Chattanooga Convention Center during the last evening of the 68th conference of the U.S. Court of Appeals for the 6th Circuit. Justice Stevens presides over the 6th Circuit in his position on the Supreme Court.

    steve (fcff0c)


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