Masking Justice, Supreme Court Style

04/24/2008 05:12 am ET | Updated May 25, 2011

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.