A Less Cruel Punishment
A Supreme Court ruling shouldn't end the debate on the methods or morals of lethal injection.
THE SUPREME Court has spoken: The current method of injection to execute inmates does not constitute cruel and unusual punishment. But this declaration, delivered in a splintered, 97-page opinion Wednesday, should not end the public debate about capital punishment -- nor about whether states, as long as executions continue, should consider alternatives that may be more humane and reliable and less likely to impose unnecessary pain.
The case revolved around the three-drug process used in Kentucky and the 34 other states that administer lethal injection. First, a general anesthetic is injected intravenously to render the inmate unconscious; if administered correctly, this drug should prevent the inmate from feeling pain. A second drug paralyzes the inmate; this drug is meant to preserve the dignity of the process -- for the inmate and those present -- by preventing muscle spasms that sometimes accompany death. The third drug stops the heart and causes severe burning sensations. The most significant problem with this protocol is that because the second drug paralyzes the inmate and prevents him from reacting, there is no way to know whether he feels pain from the third and lethal drug.
Those challenging the three-drug method of execution argued that human error and poor monitoring procedures increased the chances that the process would produce "unnecessary risk of pain and suffering" and violate the Eighth Amendment's prohibition of cruel and unusual punishment.
Chief Justice John G. Roberts Jr., in the case's main opinion, concluded that "efforts to implement capital punishment must certainly comply with the Eighth Amendment, but what that Amendment prohibits is wanton exposure to 'objectively intolerable risk,' not simply the possibility of pain." The chief justice and six others concluded that there was no evidence in the record that Kentucky's administration of lethal injection created significantly increased risk.
The record does, however, show that other states take more precautions than does Kentucky. Those administering lethal injections in Florida, for example, pause for a few minutes after injecting the anesthetic to test whether the inmate is unconscious and unable to feel pain before they inject the paralyzing drug.
In our view, states should not be in the business of killing anyone. But as long as they are, all states should adopt such precautions. And they should consider eliminating the second and third drugs, instead relying on an overdose of the barbiturate anesthetic to bring as painless a death as possible.
Chief Justice Roberts suggested that such a discussion in the political arena would be healthy and natural: "[O]ur approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment."