This is why right-wing courts matter

And they matter way beyond the abortion issue; conservative justices influence all sorts of social justice concerns, including the very basic right to be free of cruel and unusual punishment.

The Supreme Court on Wednesday upheld Kentucky’s method of execution by lethal injection, rejecting the claim that officials there administered a common sequence of three drugs in a manner that posed an unconstitutional risk that a condemned inmate would suffer acute yet undetectable pain.

While the 7-to-2 ruling did not shut the door on challenges to the lethal injection protocols in other states, it set a standard that will not be easy to meet. Chief Justice John G. Roberts Jr. said in the court’s controlling opinion that challengers must show not only that a state’s method “creates a demonstrated risk of severe pain,” but also that there were alternatives that were “feasible” and “readily implemented” that would “significantly” reduce that risk.

“A slightly or marginally safer alternative” would not suffice, the chief justice said. He added: “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual” under the Eighth Amendment.

Emphasis mine.

What the hell kind of country are we living in when we not only allow the state the right to execute criminals — something done in only a handful of other states with abhorrent human rights recorders, including Iran, Saudi Arabia and Yemen — but when we can’t even be bothered to make sure that our methods of execution are as humane as possible? Who are we when our standard for killing our own citizens is that the way we kill them simply cannot pose an “objectively intolerable risk of harm”?

This is sick and shameful.


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35 comments for “This is why right-wing courts matter

  1. ithaqua
    April 17, 2008 at 12:42 am

    “something done in only a handful of other states with abhorrent human rights recorders, including Iran, Saudi Arabia and Yemen”

    And Japan, and India, and Israel, and so on. Which is not to say that capital punishment is not vile, or that the United States shouldn’t be compared to those abhorrent states – I would easily claim that the United States’ human rights record is every bit as vile as Iran’s, or Saudi Arabia’s, or Germany’s – but claiming that capital punishment is only practiced by “a handful of other states” understates considerably the ubiquity and popularity of the practice. Patriarchal governments just like to kill.

    http://en.wikipedia.org/wiki/Use_of_capital_punishment_by_nation

    And on a side note, the Kabuki theater of American capital punishment has always disgusted me. The midnight executions, the obsession with minutiae like what specific drugs are used, the grotesque and ritualistic nature of the procedures – the entire point seems to be to hide, as much as possible, and from as many people as possible, the reality of execution, and keep any individual person from facing up to the fact that they personally ended a human life. We (doctors, at least) know very well how to provide euthanasia via an overdose of barbituates/opiates/what have you; veterinarians manage it routinely. But the simple, direct method leaves even death penalty supporters with the consciousness of blood on their hands, so they arrange the whole macabre display to distance themselves from what they’re actually doing. It’s ridiculous.

  2. ithaqua
    April 17, 2008 at 12:43 am

    (Update: by “those abhorrent states” I refer to Iran, Saudi Arabia and Yemen, not Japan, India and Israel – though they have their problems too)

  3. Flowers
    April 17, 2008 at 12:58 am

    When did “not cruel and unusual” become “as humane as possible”? Don’t get me wrong, I’m against the death penalty, but legally, this ruling could just as much come from democrat-appointed judges as republican-appointed ones. It’s state legislatures that need to be changed way more than SCOTUS judges when it comes to the death penalty.

  4. Gina
    April 17, 2008 at 1:36 am

    *sigh* I’m not surprised. If they’re fine with torture, why would they care about humane executions?

  5. April 17, 2008 at 2:06 am

    The US Constitution allows for capital punishment.

    People can, of course, disagree on whether CP is appropriate and under what circumstances. That’s called good faith disagreement.

    However, it doesn’t rise to “sick” just because some people argue that some crimes are so heinous that CP is the only just sentence.

    Even LWOP prisoners can still take lives. CP means it is absolute they will never again take an innocent life.

    YMMV.

  6. chad
    April 17, 2008 at 3:42 am

    Are you disagreeing with the law or the interpretation thereof? Does this distinction not matter?

  7. April 17, 2008 at 8:17 am

    Darleen – this post is not an argument about capital punishment per se, but rather about our standards for deciding whether a given method is humane. By Jill’s standards “Well, it’s likely this method causes intense pain, but nobody can prove it.” is a shamefully low bar to hold ourselves to. I tend to agree.

  8. April 17, 2008 at 8:26 am

    If the only measure of whether or not something is Just is whether or not it is legal, it follows that imprisioning cyber-dissidents in work camps and executing people for drug offenses is okay because that’s legal under Chinese law; stoning folks for committing adultry is okay because that’s legal under Iranian law; and it was okay to chase after lesbian pornography for being “obscene” in Canada because of the obscenity laws.

    None of these things are okay – and neither is capital punishment. Just because it’s legal under US laws doesn’t make it acceptable.

  9. April 17, 2008 at 8:53 am

    Tapetum, “likely to cause intense pain but nobody can prove it” isn’t the issue – “may cause pain but nobody can prove it” is the issue. If the standard was that any possibility of pain must be eliminated, the death penalty would cease to function, because that bar can’t be cleared with any method of execution, and as the majority points out (reasonably, although it’s not airtight),

    The suggestion that this is the result of “conservative justices,” as Jill puts it, is undercut but something that commenter Flowers alluded to in saying that “this ruling could just as much come from democrat-appointed judges as republican-appointed” – not only could it, it did. The ruling was 7-2; the dissenters were a Republican-nominated liberal and a Democratic-nominated liberal, while those signing on to the result include a Democratic-nominated liberal, a Republican-nominated moderate who leans liberal on the death penalty (cf. Atkins and Roper, and a Republican-nominated liberal who wrote in his separate opinion that he was now prepared to vote to abolish the death penalty as unconstitutional in a case presenting that question. “Conservative” indeed! Jill’s comment, with all due respect, reminds me of Howard Dean railing about how Kelo was the product of “[t]he president and his right-wing Supreme Court [who] think it is ‘okay’ to have the government take your house if they feel like putting a hotel where your house is,” notwithstanding that at the time, Bush had made not a single appointment to the court, and the decision was the product of the liberal bloc over strongly-worded dissents from all three of the court’s then-conservative bloc and Justice O’Connor.

    Lastly, I have a question for those dismayed by the ruling (not a gotcha question, just an honest inquiry): would those of you who think the three-drug protocol is cruel and unusual because the victim may be sufficiently conscious to be aware of the stopping of their heart also say that execution by firing squad would be cruel and unusual if it was as widely-used as is lethal injection?

  10. April 17, 2008 at 9:11 am

    Sorry, I left the last sentence of para 1 of my comment above dangling; the missing text is “if the death penalty is itself Constitutional, it follows that there must be a Constitutional way to carry it out.”

  11. Just Saying
    April 17, 2008 at 10:20 am

    Jill– If you agree that the Constitution permits the death penalty*, then what method(s) of execution would you say are permitted? Given that the founders allowed the death penalty, an acceptable method must have existed when it was passed. Would you prefer to go back to hangings?

    *It seems very hard to argue that the Constitution forbids the death penalty. The 5th Amendment provides that nobody shall “be deprived of life, liberty, or property, without due process of law”. The necessary implication seems to be that somebody can be deprived of life, liberty, or property WITH due process of law. If the framers had intended to make the death penalty forbidden, they could have simply changed the 8th to, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted, nor shall capital punishment be inflicted.”

  12. MC
    April 17, 2008 at 10:44 am

    “Patriarchal governments just like to kill.”

    Unless it’s unborn babies, of course!

  13. April 17, 2008 at 10:48 am

    would those of you who think the three-drug protocol is cruel and unusual because the victim may be sufficiently conscious to be aware of the stopping of their heart also say that execution by firing squad would be cruel and unusual if it was as widely-used as is lethal injection?

    I’m fundamentally confused by the question; what person who opposes lethal injection would not also oppose execution by firing squad?

    People can, of course, disagree on whether CP is appropriate and under what circumstances. That’s called good faith disagreement.

    However, it doesn’t rise to “sick” just because some people argue that some crimes are so heinous that CP is the only just sentence.

    Says who? I’m opposed to the death penalty precisely because I think that it’s sick and shameful.

    Given that the founders allowed the death penalty, an acceptable method must have existed when it was passed. Would you prefer to go back to hangings?

    Standards change over time. The founders also thought that black people were 2/3rds of persons, so saying that they found something acceptable and therefore it must be isn’t much of an argument. And in fact, many of them recognized that, which is why so much in the Constitution is open for interpretation.

  14. April 17, 2008 at 11:03 am

    The sickest things about the decison are its approval of a pain-masking drug that even veternarians refuse to use on animals, and the claim that hiding the pain is necessary for “preserving the dignity of the procedure” — i.e., making sure the spectators aren’t exposed to screaming and thrashing (which might make them drop their popcorn).

  15. Bitter Scribe
    April 17, 2008 at 12:30 pm

    There is no nice way to take someone’s life. It seems like every generation or two, someone comes up with a new “humane” method of execution. And a generation or two later, we look back and shudder at its barbarity. (See: guillotine, lethal gas)

    Maybe the problem is not with the method, but with the concept.

  16. Sam
    April 17, 2008 at 1:03 pm

    Jill:

    You said “What the hell kind of country are we living in when we not only allow the state the right to execute criminals…” It’s not a matter of us “allowing” anything – it’s the basic structure of our federalist system. States are sovereign when it comes to dealing with their criminals, subject of course to the limits of the 14th Amendment, and the federal government can of course have concurrent jurisdiction over some crimes pursuant to its enumerated powers.

    Like it or not, that’s the way it is. And no way could the death penalty per se violate the constitution when it was readily practiced for many more crimes (rape, desertion, etc.) during the penning of the Bill of Rights, and during the writing of the 14th Amendment.

    The only way to change this would be to amend the Constitution.

    You left of your list of countries which permit the death penalty South Korea, Japan, and Singapore. These highly advanced and wealthy Asian societies have similar attitudes towards the death penalty as most Americans do.

  17. Skullhunter
    April 17, 2008 at 1:19 pm

    Even LWOP prisoners can still take lives. CP means it is absolute they will never again take an innocent life.

    Yes, typically dead people lack the capacity to kill people.

    It’s also a lot harder to release a wrongfully convicted person from the grave than from prison. Capital punishment ensures that sending the wrong person to prison becomes impossible to correct. Unless of course you think a posthumous pardon is an acceptable correction.

  18. False Flag Operative
    April 17, 2008 at 1:21 pm

    The title is misleading. The SCOTUS may lean right, but there are only 5 justices that are conservative. That would mean that the two of the liberals ruled in favor. Just because someone’s not a conservative does not mean they are against the death penalty. Hillary’s a liberal and she is for the death penalty and I’m not a liberal and I’m against capital punishment.

  19. April 17, 2008 at 1:29 pm

    Cara, I suppose it depends on why they oppose lethal injection – what their concerns are. If they’re opposed to the death penalty in all circumstances, then of course they would also oppose firing squads. But that’s not the only reason to oppose lethal injection. It stands to reason that a person who supports the death penalty in the abstract need not support the death penalty by any means. It’d be presumptuous on my part to assume people’s motives for their conclusions, so it’s not such an unreasonable question to try to probe what else people may be opposed to.

    I think that’s what commenter “Just Saying” was getting at above in mentioning hanging: is this really opposition to the death penalty per se under a guise of concern for methods? The issue in Baze is that the execution could go wrong, resulting in the prisoner being conscious during suffocation and, shortly thereafter, cardiac arrest. The former risk was omnipresent with hanging after the short drop method (where suffocation was the goal) was abandoned as cruel; get the rope length wrong, and the risk is that the condemned will suffocate. I bring up firing squads because, although they’re frequently brought up as the epitome of a minimal-suffering death, even if nothing goes wrong, the prisoner will be aware of something essentially the same as the latter. See Norman Mailer, The Executioner’s Song 981-2 (1979).

    Some people are opposed to the death penalty in all circumstances, and that’s a respectable enough position (one that can be motivated by several reasons, too). But I’m interested in whether there are people who don’t take that view, but who are still dismayed by this ruling, and trying to better understand why and where that underlying reasoning carries them.

  20. chad
    April 17, 2008 at 2:12 pm

    Stevens, who joined the majority opinion despite his opposition to the constitutionality of capital punishment, is hardly a right-wing judge. So I don’t see how this shows that “right wing courts matter”.

    I wonder if anyone has a reaction to Scalia’s quip:

    What prompts Justice Stevens to repudiate his prior view and to adopt the astounding position that a criminal sanction expressly mentioned in the Constitution violates the Constitution?” He added, “Purer expression cannot be found of the principle of rule by judicial fiat.”

  21. chad
    April 17, 2008 at 2:13 pm

    Oops, I meant that Stevens voted with the majority, not that he joined their opinion.

  22. April 17, 2008 at 2:30 pm

    “something done in only a handful of other states with abhorrent human rights recorders, including Iran, Saudi Arabia and Yemen”

    And Japan, and India, and Israel, and so on.

    Take a look at how often the death penalty is actually used in states with better human rights records. Compare that to how often we use it.

  23. April 17, 2008 at 2:37 pm

    I bring up firing squads because, although they’re frequently brought up as the epitome of a minimal-suffering death, even if nothing goes wrong, the prisoner will be aware of something essentially the same as the latter.

    See, this must be where the confusion is coming in. I’ve never heard that firing squads are supposed to be the epitome of a minimal-suffering death. Knowing everything I know and given the choice, I’d choose lethal injection in a heartbeat. Personally, I figure that being shot is always going to fucking suck, and that the chances of dying instantly upon first bullet is rather low. Maybe I’m missing something.

    Some people are opposed to the death penalty in all circumstances, and that’s a respectable enough position (one that can be motivated by several reasons, too). But I’m interested in whether there are people who don’t take that view, but who are still dismayed by this ruling, and trying to better understand why and where that underlying reasoning carries them.

    I do oppose the death penalty, very strongly, but I agree that you can oppose this ruling without opposing capital punishment. And someone correct me if I’m wrong, but I was under the impression that numerous replacements have been proposed to the cocktail method that are supposed to be a faster and non-painful. If I’m not mistaken, I think that it makes the practice and ruling particularly unacceptable, regardless of one’s feelings on the theoretical nature of capital punishment itself.

  24. April 17, 2008 at 2:39 pm

    You said “What the hell kind of country are we living in when we not only allow the state the right to execute criminals…” It’s not a matter of us “allowing” anything – it’s the basic structure of our federalist system. States are sovereign when it comes to dealing with their criminals, subject of course to the limits of the 14th Amendment, and the federal government can of course have concurrent jurisdiction over some crimes pursuant to its enumerated powers.

    Thanks for the civics lesson, Sam. Who knew that after three years of law school, I had no idea how our system worked!

    Like it or not, that’s the way it is. And no way could the death penalty per se violate the constitution when it was readily practiced for many more crimes (rape, desertion, etc.) during the penning of the Bill of Rights, and during the writing of the 14th Amendment.

    As Cara explained, human rights standards shift. The exact same Constitution has been interpreted to uphold “separate but equal” laws and to dismantle them. Why? Because our understandings of fairness, of equality, and of human rights evolve. I’m not actually making the argument that the death penalty is unconstitutional; but I don’t think it’s out of the question that the argument could be made.

    You left of your list of countries which permit the death penalty South Korea, Japan, and Singapore. These highly advanced and wealthy Asian societies have similar attitudes towards the death penalty as most Americans do.

    Funny. In 2007, Japan executed somewhere around 9 people. And if you’re under the impression that Singapore has a great human rights record, you’d be wrong — they have an incredibly punitive justice system, and they often punish people in horrific ways.

    And at the end of the day, the death penalty is a horrific abuse. It is wrong. And while some liberal justices did join on this opinion, that doesn’t negate the argument that right-wing courts are problematic for these issues.

  25. NancyP
    April 17, 2008 at 2:53 pm

    23 Cara, a large enough caliber gun placed directly on the head in a strategic spot will kill (remove consciousness) in a few milliseconds, because the entire head, including the cerebrum and basal ganglia, will be ripped to shreds by the expanding energy dissipation and vaporization wave). No brain, no consciousness (unless you are religious and believe in consciousness as separable from brain activity, for which there is no scientific evidence whatsoever). It’s a ghastly mess afterwards. (I have some forensics training, and I have seen many pictures of the above scenario’s aftermath).

    We know overdose of neurodepressants (opiates and barbiturates) is not painful, because many people are rescued from lethal or near-lethal overdoses by inhibitors, and they don’t report pain.

  26. April 17, 2008 at 2:58 pm

    And to the point of this exact case: The court has basically said that it has no oversight when it comes to execution procedures. Executions are often highly secretive in the first place, and Roberts stated that a few “isolated mishap[s]” wherein prisoners suffered horrifically before they died was simply not enough for the court to cast suspicion on the method of execution. The problem, of course, is that proper data is often not kept on executions, and they’re done with little oversight. It’s all part of a greater culture of secrecy and concentrated power.

  27. April 17, 2008 at 3:00 pm

    Cara, a large enough caliber gun placed directly on the head in a strategic spot will kill (remove consciousness) in a few milliseconds, because the entire head, including the cerebrum and basal ganglia, will be ripped to shreds by the expanding energy dissipation and vaporization wave). No brain, no consciousness (unless you are religious and believe in consciousness as separable from brain activity, for which there is no scientific evidence whatsoever). It’s a ghastly mess afterwards. (I have some forensics training, and I have seen many pictures of the above scenario’s aftermath).

    Agreed, but I wasn’t under the impression that this is how a firing squad was usually conducted. I guess that movies and TV aren’t going to necessarily be the best source, but the actual footage of firing squads I’ve seen sure as hell didn’t look like what you described. If I’m wrong and this is standard firing squad practice, then fair enough.

  28. Mnemosyne
    April 17, 2008 at 3:58 pm

    I bring up firing squads because, although they’re frequently brought up as the epitome of a minimal-suffering death, even if nothing goes wrong, the prisoner will be aware of something essentially the same as the latter. See Norman Mailer, The Executioner’s Song 981-2 (1979).

    Gary Gilmore didn’t choose death by firing squad because it would be more painless — he chose it because he was raised a Mormon. Read his brother Mikal’s book, Shot In the Heart. Very, very depressing, but it gives you an idea of the kind of fucked-up upbringing that leads to a Gary Gilmore.

    At a minimum, our standard should be that if the method is considered too cruel when applied to a dog, it’s too cruel to be applied to a human. And since this particular drug combination is not used by veterinarians on the grounds that it causes pain to the animal, what does that say about us that we’re more willing to be kind to a vicious dog that kills people than a vicious human who did the same?

  29. Sam
    April 17, 2008 at 4:00 pm

    Jill:

    I respect your position in the sense that you personally find it abhorrent. I personally don’t have strong feelings one way or the other. But can you articulate *why* it is inherently so bad?

    Surely theoretically (in the thought experiment sense, to test our intuitions) in some cases it could be justified – for example to save many lives (in emergency situations like riots, or mass desertions in the military). Presumably you think the death penalty is immoral because it is wrong for the state to take lives, or something like that. But what about a state that is too lax in its criminal laws which ultimately costs more lives? Again, not making any empirical claims about the death penalty in its current operation and how much it actually deters – just as a thought experiment.

    Once you accept the thought experiment, and if it could be show that, properly applied, it could deter crime and ultimately do more good than harm, how can it be claimed to be inherently immoral?

    Even if you’re being totally deontological in your reasoning, it breaks down – at what point is a state culpable for its own inaction? Doesn’t it have a duty to prevent harms and not allow its own inaction to cause deaths?

  30. Sickle
    April 17, 2008 at 4:15 pm

    As someone who worked directly on the California case that halted lethal injection here, I can say that this ruling is truly disappointing. I wish I could tell you about my work. It’d make you even more angry.

  31. April 17, 2008 at 4:45 pm

    Once you accept the thought experiment, and if it could be show that, properly applied, it could deter crime and ultimately do more good than harm, how can it be claimed to be inherently immoral?

    This sort of utilitarian argument is facially appealing but ultimately doesn’t work. The televised torturing to death of a condemned prisoner might have ten times the deterent effect of a simple “humane” execution — but it ultimately did more good than harm, how could it be claimed to be inherently immoral? Merely pointing to the pain of the condemned person doesn’t suffice, because the deterent value of that pain might spare countless innocent victims from even greater torture at the hands of sadistic murderers.

  32. April 17, 2008 at 5:06 pm

    Sam – I’m not Jill, but I’ll give you my view of the matter.

    Theoretically, I wouldn’t have a problem with the concept of the death penalty. That there are some people so dangerous or irretrievable that killing them is the safest option is something I don’t dispute.

    It’s practical application that makes me oppose the death penalty.

    First – we’ve shown, repeatedly, that we as a society can’t be trusted with the death penalty. We apply it unfairly. We have executed the innocent, and undoubtedly will again. We have death penalty cases that drag on for years – and others where the inmate can’t even get competent counsel.

    Second – I don’t like what the death penalty does to us as a society. We don’t use the death penalty regretfully to remove a danger (the way we remove a dangerous dog), but gleefully as revenge. There’s no other explanation I can think of for why we would revive a death row inmate who has a heart-attack a few days before his execution – and then march him off to be executed. We don’t want them dead – we want to kill them ourselves, and I don’t like feeding that mentality.

  33. exholt
    April 17, 2008 at 7:04 pm

    Even if you’re being totally deontological in your reasoning, it breaks down – at what point is a state culpable for its own inaction? Doesn’t it have a duty to prevent harms and not allow its own inaction to cause deaths?

    Sam,

    If you believe that the state must do all it can to prevent harm and not allow its actions/inactions to cause innocent deaths, how far do you want the state to go?

    For instance, authoritarian regimes such as Singapore and the PRC during the Maoist era were quite effective in almost eliminating crimes of all types, including violent ones due to what we would consider excessively harsh punitive justice systems and invasive surveillance of their citizenry. Do we want to pay the heavy price in the loss of personal freedoms and privacy to achieve this chimeric absolute security/safety standard?

    if you’re under the impression that Singapore has a great human rights record, you’d be wrong — they have an incredibly punitive justice system, and they often punish people in horrific ways.

    Yep….just google Michael Fay or listen to Weird Al Yankovic’s song “Headline News” to get an idea of what Singapore “justice” means. What’s more notable is that as harsh as Fay’s caning was with the widespread Western protests in the media…he actually got off easy compared to what would have happened had he not been an American/European citizen.

  34. April 19, 2008 at 4:44 am

    Funny. In 2007, Japan executed somewhere around 9 people. And if you’re under the impression that Singapore has a great human rights record, you’d be wrong — they have an incredibly punitive justice system, and they often punish people in horrific ways.

    And the same is true of South Korea, whose motto ought to be “Providing PR for North Korea Since 1950”. Their laws are largely remnants of the brutal military dictatorship that ruled there until 1989. Their National Security Act (국가보안법 [국보법]), and the jurisprudence on it, is worth a look for anyone interested in exactly what the ROK’s attitude toward fundamental human rights is. Essentially, the NSA gives the state the power to crush any form of dissent, with penalties up to and including death.

  35. Gina
    April 19, 2008 at 12:21 pm

    There’s no other explanation I can think of for why we would revive a death row inmate who has a heart-attack a few days before his execution – and then march him off to be executed.
    wow, that’s sick.

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