The death penalty is, unfortunately, a durable and, many would say, indispensable feature of American criminal law. It is authorized by law in 38 states, and in 2006, 53 convicts were executed. The Supreme Court has repeatedly upheld its constitutionality. But soon, the court will have to answer a pressing question — not whether executions are allowed, but what kind.
Lately, the prevailing method of lethal injection has come under close scrutiny, and the court has agreed to consider whether this means of execution violates the constitutional ban on cruel and unusual punishment. That’s an excellent question that deserves a clear answer.
In the meantime, some experts say, there is an effective moratorium on use of the death chamber. The court has granted two stays of execution and left another in place, while both Texas and Nevada have halted all executions until the court settles the issue.
There are good reasons to wonder if the death penalty machinery has kept up with medical knowledge. The most common procedure involves the sequential use of three different chemicals that are supposed to cause unconsciousness, paralyze the inmate, and finally stop the heart. Critics say the second drug can leave the inmate conscious but unable to move or speak, and that the third can cause intense pain. They say the paralyzing drug could be eliminated entirely and the fatal one could be replaced with another that is less likely to produce suffering.
All that remains to be proven. But there is no doubt that it’s time for the court to address the matter.
It has been more than 100 years since the justices examined a constitutional challenge to a type of execution, even though appeals from inmates frequently contest the means of bringing about death.
Some executions have been terribly botched — like one last year in Florida in which the condemned man writhed in pain during a process that took 34 minutes to kill him. Lethal injection is the standard method in this country, and most people would agree that if we’re going to have executions, they should be carried out as painlessly as possible.
The question is how far the state has to go to prevent unnecessary suffering. The Kentucky Supreme Court, in upholding the current protocol for lethal injection, said, in effect: not very far. While acknowledging that other drugs might “decrease the possibility of pain,” the court insisted that “there is no requirement to select the least severe penalty so long as the penalty is not cruel or unusual.”
But one compelling definition of cruelty is inflicting pain that is not necessary to achieve the purpose at hand. If the drugs used in lethal injections carry an appreciably greater risk of causing suffering than other drugs, it is hard to see how they can be justified.
The position of this page is that executions should be abolished. If they are to be carried out, that should be done in the most humane fashion available. Cruelty is no part of justice.
