Uncomfortable Life-or-Death Moments for the Justices
"This never ends," an audibly frustrated Justice Antonin Scalia said this morning during the middle of oral arguments in the lethal injection case before the Supreme Court. "There will always be another case."
The justice's earnest lament is true. There always is another death penalty case at the Supreme Court, and there always will be. But you'll rarely find another oral argument as philosophical than the one just completed in Baze v. Rees. There weren't any "What is the meaning of death?" moments, but the justices and the lawyers came awfully close.
For example, when was the last time this courtroom (or any courtroom) reverberated with talk about "the consciousness of lingering death"? When was the last time a justice (in this case, Stephen Breyer) said, "I am lost at sea"? How many deadly grams of poison constitute a "massive dose," asked another justice, clearly uneasy about tinkering once again with what the late Justice Harry Blackmun called the "machinery of death."
This is what this latest death penalty case is all about. Lawyers for both Kentucky and the two men condemned to die there agree that the commonwealth's lethal injection procedures would be constitutional if only one drug were used to execute people. Alas, Kentucky uses (why, I don't know) a three-drug mixture that everyone also seems to agree raises the risk that the prisoner could suffer staggering pain during the execution. The parties even agree that the crucial part of the process is the administration of the first drug, the one supposed to knock the inmate into the last sleep of his life.
But here is where the agreement ends. "This is an execution, not surgery," Justice Scalia said. He wants the court to declare that states like Kentucky may continue to use their three-drug mix even if their procedures do not guarantee against the risk of substantial pain during an execution. To him, and presumably to Justices Samuel Alito and Clarence Thomas, nothing in the Constitution or the 8th Amendment's ban on "cruel and unusual punishments" precludes the imposition of any pain during an execution.
The middle ground here is led by Chief Justice John Roberts. He seems ready to tweak Kentucky's protocols, either to increase the dosage required for that first shot or at least to ensure that the dose is properly administered. Based on his comments this morning, I would also put Justice Anthony Kennedy in this group.The Court's ESV (Eternal Swing Vote) spoke up rarely during the argument, and when he did he focused on what measures could be added to Kentucky's protocols to make them more acceptable to their opponents.
Then there is Justice John Paul Stevens. He told the courtroom that the "record is persuasive" in favor of Kentucky but then added that he is "terribly troubled" by the fact that other state injection protocols may not be so carefully crafted. LIke several of the other justices, Stevens said he doesn't like the fact that the second administered drug causes risk of pain without really accomplishing much other than to maintain "dignity" inside the execution chamber. (The drug essentially freezes the dying man's muscles, thus avoiding any unsightly twitching.)
And then there are Justices Breyer and David Souter. These judges repeatedly said that they feel uncomfortable evaluating Kentucky's protocols under the 8th Amendment without also evaluating (or having a trial judge evaluate) alternative means of lethal injection procedures. These justices argued today -- to their colleagues more than to the lawyers -- that unless such a comparison is done adequately by the lower courts, lethal injection litigation will continue to crop up, case by case.
Which is precisely where we, and Justice Scalia, started. It never ends.
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