Masking Justice, Supreme Court Style

Nobody can be surprised that the Supreme Court gave a free pass today to proponents of execution by lethal injection. Justices Roberts, Alito, Scalia et al were hardly going to be sympathetic to the idea of suspending executions indefinitely in the 35 states that have adopted lethal injection, just because of the now well-documented risk of the condemned suffering several minutes of excruciating pain masked -- and thus invisible to observers -- by the paralysing agent pancuronium bromide. Indeed, many observers believe the only reason the justices took the case at all was to end what has become a de facto moratorium on executions in Kentucky, California and a handful of other states. Now the country can go back to the point where human rights groups compare its criminal justice system to that of China, Iran or Saudi Arabia.

Still, the arguments presented by the Supreme Court beggar belief for their sheer cynicism and barbaric sentiment -- all dressed up, naturally, in the veneer of civilized legalistic language.

Some highlights:

1. Death by lethal injection cannot possibly be "cruel and unusual", as defined by the Eighth Amendment, because the purpose of introducing it in the first place was to make executions both swift and humane. This argument confuses intention with reality: who cares what state legislators and prison administrators thought 10 or 20 or 30 years ago, if it turns out they were wrong? The way Justice Roberts put it in his ruling only emphasizes the circularity of his thinking. "It is... difficult," he wrote, "to regard a practice as 'objectively intolerable' when it is in fact widely tolerated." This is not unlike the Bush administration's executive privilege argument: because we do it, it must be OK.

2. Until the petitioners can show us a better execution method, we'll stick with this one. Or, in Chief Justice Roberts' words, alluding to the cocktail of three separate drugs used in all 35 lethal injection states: "Kentucky's continued use of the three-drug protocol cannot be viewed asposing an 'objectively intolerable risk' when no other State has adopted the one-drug method [something advocated by the plaintiffs] and petitioners have proffered no study showing that it is an equally manner of imposing a death sentence." In other words, given the choice between a potentially flawed, and painful, execution method and carrying out no executions at all for the time being, we'll go for the potentially flawed and painful method.

3. Pancuronium bromide might be banned for use on animals, but that shouldn't stop us using it on people. Really, I'm not kidding. This is what Chief Justice Roberts wrote: "If pancuronium is too cruel for animals, the argument goes, then it must be too cruel for the condemned inmate... [But] veterinary practice for animals is not an appropriate guide to humane practices for humans." Some humans, in other words, deserve to be treated worse than animals. (Anyone who has ever visited a Death Row unit will have suspected this line of thinking all along.)

Only once in the concurring opinions (the Court voted 7-2 on this one, with only Souter and Ginsburg dissenting) do we get to the heart of the matter. Justice Alito points out, correctly, that the main reason condemned prisoners are anesthetized so crudely (usually with sodium pentothal) and then fed a paralysing agent is because the experts who could really ensure a painless death - professional doctors and anesthesiologists - refuse to have anything to do with executions on ethical grounds.

Lethal injection has always been about appearances: the appearance of medical respectability, even without the participation of doctors (hence the absurd practice of disinfecting a patient's arm before inserting the fatal IV pump), and the appearance of humane treatment, without too much regard for the reality of it. After 30 years, those appearances are finally being questioned by scientific research. Shame on the Supreme Court for preferring to inhabit their cocoon of respectability -- justice masked by legalese -- than to face the facts.

Comments

[JohnPerry]

"was to make executions both swift and humane"

Swift and humane? Okay, how about the right to die? By these standards shouldn't one's own death be swift and humane as well?

What's good for the bad should be good for the good, too -- can't have it both ways, can you?

Make a choice.

[dudleysharp]

Gumbel writes: "Pancuronium bromide might be banned for use on animals, but that shouldn't stop us using it on people. Really, I'm not kidding." "Some humans . . deserve to be treated worse than animals."

Some reality for Gumbel.

from the Vet group AVMA:
"When used "alone", these drugs (paralytics, such as Pancuronium bromide) all cause respiratory arrest before loss of consciousness, so the animal may perceive pain and distress after it is immobilized."

No state uses a paralytic without an anaesthetic -- EVER. The anesthesia is always used first.

These types of absurd claims are blatant lies by anti death penalty activists - or fact checking omissions by some writers.

I also believe that "in Belgium and the Netherlands, Pancuronium is recommended in the protocol for euthanasia. After administering sodium thiopental to induce coma, Pancuronium is delivered in order to stop breathing."

Mr. Gumbel, fact check please?

Gumbel states: ". . .professional doctors and anesthesiologists - refuse to have anything to do with executions on ethical grounds."

20-40% of doctors polled said they would participate in executions. It appears the reason they won't is because of threats from medical groups such as the AMA. The medial groups alleged ethical concerns are easily disproven.

Gumbel reflects: " . . .hence the absurd practice of disinfecting a patient's arm before inserting the fatal IV pump".

Mr. Gumbel, stays of execution are extremely common and/or there may be some other reason to stop or delay the execution. Therefore, the disinfectant makes complete

[dudleysharp]

Mr. Gumbel: I fact checked for you:

The following is a Dutch protocol for parenteral (intravenous) administration to obtain euthanasia:
Intravenous administration is the most reliable and rapid way to accomplish euthanasia and therefore can be safely recommended. A coma is first induced by intravenous administration of 20 mg/kg sodium thiopental (Nesdonal) in a small volume (10 ml physiological saline). Then a triple intravenous dose of a non-depolarizing neuromuscular muscle relaxant is given, such as 20 mg pancuronium bromide (Pavulon) or 20 mg vecuronium bromide (Norcuron). The muscle relaxant should preferably be given intravenously, in order to ensure optimal availability. Only for pancuronium bromide (Pavulon) are there substantial indications that the agent may also be given intramuscularly in a dosage of 40 mg.(1)

In Belgium and the Netherlands, Pancuronium is recommended in the protocol for euthanasia. After administering sodium thiopental to induce coma, Pancuronium is delivered in order to stop breathing.(1)

(1)http://wweek.com/___ALL_OLD_HTML/euthanasics.html

[dudleysharp]

Mr. Gumbel, do some homework.

Justice Roberts stated: "It is... difficult "to regard a practice as 'objectively intolerable' when it is in fact widely tolerated."

Gumbel replied: 'This is not unlike the Bush administration's executive privilege argument: because we do it, it must be OK."

Actually, Roberts found the practice is not "unusual", as in cruel and unusual - the main consideration of the litigation and decision.

Gumbel states; ." In other words, given the choice between a potentially flawed, and painful, execution method and carrying out no executions at all for the time being, we'll go for the potentially flawed and painful method."

See "potentially" flawed. A constitutional challenge will not succeed based of could - maybe - potential, etc. nor should it.

Trivial example. Should SLATE leave a blank space for Gumbel's article because there is some potential it might be flawed?

Those cases of potentially flawed executions are extremely rare and easy to do away with. Of course, executions should proceed.

[JacobSinger]

You a wrong on ALL level and for any reason anyone can possibly offer.

"Justice Roberts stated: "It is... difficult "to regard a practice as 'objectively intolerable' when it is in fact widely tolerated.""

Really? In what 1st world country? And no, "in the US" is a disqualifying answer, as our use of the death penalty disqualifies us from that designation [not to mention torture, and illegal wars].

[noneIn2008]

There are very valid discussions against capital punishment. Unfortunately, yours is a weak superficial argument. You help undermine arguments against capital punishment. Then we get the typical postings, it's Bushes fault. This does nothing to advance the real discussion.

[LesHamilton]

It"s hard to argue the means to an end, if all means lead to the death of a person. The evolution of executions follows technology with the intent that they become tidier as well as quicker. The guillotine is quick but not very tidy.
The incidents of the failure of the analgesic injection after the paralytic agent is given are probably extremely rare considering the number of executions, since it is rare for it to happen during normal surgical use. Cleaning the catheter site with alcohol is not ridiculous if you assume that until the injection is given the decision to kill is reversible.
There is no guarantee that whichever method you choose to kill a person, there will not be some degree of pain. I would also imagine that the senses of the condemned are heightened as the time nears. The condemned is owed a quick death, not necessarily a painless one.
The solution to this squeamishness is to not allow the state to kill. If you really want to end executions in the United States mandate that they be bloody, prolonged, excruciating and public. There will be a part of the crowd who will see it as entertainment but hopefully the majority will recoil and end the practice.

[JacobSinger]

An Immodest Proposal

Many Americans demand that we have the death penalty. But that demand is directly tied to system that does not require involvement or personal responsibility; if we are so rabid for the blood of the "guilty," then we should have public executions.

If that's what it takes, then so be it. And so to get things started, I would like present the following immodest proposal:

Since we are a nation so concerned about the ancient and animalistic "eye for an eye" principle, we should gather all of BushCo and their support staff and put them on trial for the War Crimes committed in Iraq. Assuming that the primary players will be found guilty, some will argue for mercy for the staff; but since much of this criminal enterprise got its start in Texas, Texas law concepts should apply to the sentencing phase. That would likely result in death sentences for all of them, even the simpletons who didn"t really know what was going on, but were just glad to be there.

And so like Robespierre during the French Revolution, the next Democratic president can set up the guillotine on the White House lawn and shout "Let's Roll!" as Dubbya's head leads the way, the first of many to roll across the grass on a day of televised bloody executions.

And on that day America would regain respect as a just nation, and Americans would lose their infatuation with the death penalty.

[mgloraine]

Since Chief Injustice Roberts is so convinced that the injection is neither painful nor cruel, it would be interesting to see him demonstrate that by undergoing the process himself. That would be a great patriotic act which would actually improve conditions in this country by eliminating fascist control of our highest court.

Come on, Roberts, do something for America for once! Try the cocktail, it's great stuff, you said so yourself!

[SamuelBerry08]

The real moral problem is not the method of execution, because there is no nice way of putting someone to death. The problem is that the death penalty itself is immoral and should be abolished.

[markusmarkus]

Concur. Executing someone, regardless of the crime, is immoral.

Don't buy the "immoral" arguement, then how about these (feel free to pick one or more):
- Cost - it's cheaper to incarcerate a prisoner in max security for 40 years than it is to execute the prisoner. Why? In a word, "lawyers." 99% of death row prisoners were unable to pay for their own defense. Hence, the state picked up the bill. Minimum cost, including the "sentencing" stage of the trial, $1.5M.
- Deterrence - capital punishment does not deter crime. My late father used to express the sentiment, "Fry a few of them real good and only the insane will commit murder." Hmmm, what about Texas, the state with the highest murder rate, and the highest execution rate (thanks to booosh and his lackeys).
- Execution of the innocent - "But, but, but....the inmate can appeal the sentence, all the way to the SCOTUS." Sorry Charlie, appeals do not directly address the innocence of the convicted, only procedural or judicial errors. And, with this SCOTUS......good luck!

[dudleysharp]

Appeals do directly address the innocence issue.

And innocents are more at risk without the death penalty.

Possibly we have sentenced 20-25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have all been released upon post conviction review. The anti death penalty claims, that the numbers are significantly higher, are a fraud, easily discoverable by fact checking.

6 inmates have been released from death row because of DNA evidence.  An additional 9 were released from prison, because of DNA exclusion, who had previously been sentenced to death.

The innocents deception of death penalty opponents has been getting exposure for many years. Even the behemoth of anti death penalty newspapers -- The New York Times -- has recognized that deception.

There is no proof of an innocent executed in the US, at least since 1900.

If we accept that the best predictor of future performance is past performance, we can reasonable conclude that the DNA cases will be excluded prior to trial, and that for the next 8000 death sentences, that we will experience a 99.8% accuracy rate in actual guilt convictions. This improved accuracy rate does not include the many additional safeguards that have been added to the system, over and above DNA testing.

Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?
 
Unlikely.
 

[dudleysharp]

- Deterrence - capital punishment does not deter crime. My late father used to express the sentiment, Hmmm, what about Texas, the state with the highest murder rate, and the highest execution rate.

Not even close:

16 recent US studies, inclusive of their defenses,  find a deterrent effect of the death penalty.
 
All the studies which have not found a deterrent effect of the death penalty have refused to say that it does not deter some.  The studies finding for deterrence state such.  Confusion arises when people think that a simple comparison of murder rates and executions, or the lack thereof, can tell the tale of deterrence.  It cannot. 
 
Both high and low murder rates are found within death penalty and non death penalty jurisdictions, be it Singapore, South Africa, Sweden or Japan, or the US states of Michigan and Delaware.  Many factors are involved in such evaluations.  Reason and common sense tell us that it would be remarkable to find that the most severe criminal sanction -- execution -- deterred none.  No one is foolish enough to suggest that the potential for negative consequences does not deter the behavior of some.  Therefore, regardless of jurisdiction, having the death penalty will always be an added deterrent to murders, over and above any lesser punishments.
 

[dudleysharp]

Don't buy the "immoral" arguement, then how about these (feel free to pick one or more):
-" Cost - it's cheaper to incarcerate a prisoner in max security for 40 years than it is to execute the prisoner."

Well, maybe not.

All studies finding the death penalty to be more expensive than life without parole exclude important factors, such as
(1) geriatric care costs, recently found to be $69,0000/yr/inmate,
(2) the death penalty cost benefit of providing for plea bargains to a maximum life sentence, a huge cost savings to the state, possibly $500,000 or more, depending upon jurisdiction.
(3) the death penalty cost benefit of both enhanced deterrence and enhanced incapacitation, at $5 million per innocent life spared, and, furthermore,
(4) many of the alleged cost comparison studies are highly deceptive.

go to:

http://homicidesurvivors.com/2006/03/20/cost-comparisons-death-penalty-cases-vs-equivalent-life-sentence-cases.aspx

[JacobSinger]

Yes, that is so true...in sane countries, that is.

[Antisana]

Hopefully, The U.S. Supreme Court will have the moral fortitude next time around to truely reflect the will of the civilized World and rule that the death penalty is cruel and unjust punishment within the meaning of our sacred Constitution.

[LeonBNJ]

Did you expect any other decision? To have man the morally correct decision to say this form of execution is cruel, torturous and thus against our Constituion would have led to massive reactions from much of the public who believe the death penalty should be legal and even if curel as those convicted 'deserved it'.

[larry278]

W & Co leave office on 1/20/09. Barack Hussein Obama said that he'd review the W & Co mess when he took office as POTUS #44. That will mean speedy & fair trials for treason for all who have been associated with W & Co. The record(s) of W & Co will establish beyond any reasonable doubt that all of them are guilty of treason. The gravity of these many acts of treason will force the court to sentence everyone associated with W & Co to death. The USA's law are clear on what constitutes treason & how those found guilty of treason are to be punished.
The USA is going to have to execute all of these traitors quickly. The lethal injection is quick, cheap & the Supreme Court just decided that it is painless. A number of states already have execution chambers & well trained executinors. The Feds can contract the executions out to the states & pay the states to execute the traitors. The USA doesn't have the money to build enough execution chambers to deal with the surge of executions or the time to train the executioners & build new execution chambers. Why duplicate what the states already have? Pay the states & they'll do the jobs quick & cheap.

[BMSstudy]

It is very big of you to state that W & Co. will get speedy and fair trials when you go on to state that the records will surely prove them guilty. Lets all have trials for those we know are guilty, or better yet, if we know they are guilty lets just go to the punishment phase!

[JacobSinger]

You mean like at Gitmo? I mean, it isn't the death penalty, but incarceration without a trial is certainly a punishment.

Oh, but I forget...those are those sub-humans we THINK are terrorists.

Hmmm...Americans started out as terrorists...and so did the Israelis; I bet a lot of modern nations have a bunch of dirty fucking terrorists in their historical closets.

Funny that; seems like we'd have a different view of terroists, considering our own roots...it tends to send a confusing message, don't ya think?

[flacon]

Cruel and unusual has evolved from the perspective of the condemned to the sensibilities of the onlookers. The quickest and, therefore, the most pain-free would be the guillotine.

Who amongst us has the compassion for the soon to die? Who will vote for the least cruel method of serving justice?

[NovaB]

What do you expect? It's a "conservative" court. What they are conserving no one has figured out yet but by god they are conserving it.

[BrighterStar]

The Supreme Court is a court of law not a legislative entity. Therefore the question before them was not if capital punishment was morally correct of if lethal injection is the best practice. The only question is whether execution by lethal injection violates the constitution. Capital punishment is clearly constitutional. The Constitution presupposes the existence of capital punishment when is says that life cannot be taken without due process of law. The only real question is whether lethal injection is cruel and unusual when compared with other forms of execution.

The fact is that there is no painless way to execute someone and the practice of lethal injection seems more humane when compared to the methods of execution at the time of the ratification of the constitution or other methods available today. In the end, I think the court made the only rational decision based on the constitution. You may have legitimate moral questions about the practice of capital punishment, but that is a question that should be left to the legislative branches.

[richw23]

The column was about the absurd arguments they made to justify their conclusion. Did you read it, or were you all prepared to jump on that hobby horse.

And, maybe I'm wrong - but how is carbon monoxide painful, or over-medication with sedatives, or the guillotine for that matter?

[browndog2]

You missed the point. Executions by definition are not to be painless, just not cruel.

[JerDogNebr]

In February of this year, the Nebraska Supreme Court banned electrocution as this state's method of execution. However, the legal basis for the court's decision was the Nebraska state constitution's ban on cruel and unusual punishment, not the Eighth Amendment. I have given up on the US Supreme Court. I think as defense counsel we will have to look more and more to the state courts for some minimum standard of basic human decency.
The ONLY reason for the paralytic agent in the lethal cocktail is to make the death look peaceful and painless, regardless of what is actually taking place. If the business of the state is going to be to execute it's citizens, I don't understand why we don't use the method perfected by the KGB during the Stalin era. A 9mm slug in the back of the head works quite nicely. I guess it is just too "up close and personal" for the death penalty proponents.