Uncomfortable Life-or-Death Moments for the Justices

"This never ends," an audibly frustrated Justice Antonin Scalia said this morning during the middle of oral arguments in the lethal injection case before the Supreme Court. "There will always be another case."

The justice's earnest lament is true. There always is another death penalty case at the Supreme Court, and there always will be. But you'll rarely find another oral argument as philosophical than the one just completed in Baze v. Rees. There weren't any "What is the meaning of death?" moments, but the justices and the lawyers came awfully close.

For example, when was the last time this courtroom (or any courtroom) reverberated with talk about "the consciousness of lingering death"? When was the last time a justice (in this case, Stephen Breyer) said, "I am lost at sea"? How many deadly grams of poison constitute a "massive dose," asked another justice, clearly uneasy about tinkering once again with what the late Justice Harry Blackmun called the "machinery of death."

This is what this latest death penalty case is all about. Lawyers for both Kentucky and the two men condemned to die there agree that the commonwealth's lethal injection procedures would be constitutional if only one drug were used to execute people. Alas, Kentucky uses (why, I don't know) a three-drug mixture that everyone also seems to agree raises the risk that the prisoner could suffer staggering pain during the execution. The parties even agree that the crucial part of the process is the administration of the first drug, the one supposed to knock the inmate into the last sleep of his life.

But here is where the agreement ends. "This is an execution, not surgery," Justice Scalia said. He wants the court to declare that states like Kentucky may continue to use their three-drug mix even if their procedures do not guarantee against the risk of substantial pain during an execution. To him, and presumably to Justices Samuel Alito and Clarence Thomas, nothing in the Constitution or the 8th Amendment's ban on "cruel and unusual punishments" precludes the imposition of any pain during an execution.

The middle ground here is led by Chief Justice John Roberts. He seems ready to tweak Kentucky's protocols, either to increase the dosage required for that first shot or at least to ensure that the dose is properly administered. Based on his comments this morning, I would also put Justice Anthony Kennedy in this group.The Court's ESV (Eternal Swing Vote) spoke up rarely during the argument, and when he did he focused on what measures could be added to Kentucky's protocols to make them more acceptable to their opponents.

Then there is Justice John Paul Stevens. He told the courtroom that the "record is persuasive" in favor of Kentucky but then added that he is "terribly troubled" by the fact that other state injection protocols may not be so carefully crafted. LIke several of the other justices, Stevens said he doesn't like the fact that the second administered drug causes risk of pain without really accomplishing much other than to maintain "dignity" inside the execution chamber. (The drug essentially freezes the dying man's muscles, thus avoiding any unsightly twitching.)

And then there are Justices Breyer and David Souter. These judges repeatedly said that they feel uncomfortable evaluating Kentucky's protocols under the 8th Amendment without also evaluating (or having a trial judge evaluate) alternative means of lethal injection procedures. These justices argued today -- to their colleagues more than to the lawyers -- that unless such a comparison is done adequately by the lower courts, lethal injection litigation will continue to crop up, case by case.

Which is precisely where we, and Justice Scalia, started. It never ends.

By Andrew Cohen |  January 7, 2008; 1:03 PM ET
Previous: Your Lethal Injection Case Crib Notes | Next: Bush v. Gore II: Voting Fraud Back at Court

Comments

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It does end. All that needs to happen is for the Court to declare the death penalty unconstitutional- no more appeals to bother Justice Scalia.

Posted by: Peter Armstrong | January 7, 2008 04:58 PM

Capital punishment is a solution that raises more problems than it solves. I mean practical problems,quite aside from the moral problems. It's time to call a halt.

Posted by: rj2z J. Tewes | January 7, 2008 05:10 PM

The death penalty is barbaric to begin with. What could serve more to punish an evil-doer than to face guaranteed absolute incarceration with no faint hope of release knowing that you will die wearing prison orange. No conjugal visits, no television, no newspapers or magazine, no books, no human contact (except the guard who brings meals and doesn't utter a word - only four gray walls 23 hours per day to allow reflection upon the dastardly deed(s). And, lest we forget, the genuinely innocent would still be around to be freed should evidence belying their convictions come to light.
Ending a life is so final that it defies rationality and serves only vengeance, but if it is to be, we should not be adding physical pain to the process.

Posted by: tmurt | January 7, 2008 06:01 PM

No, we cannot abolish the death penalty. We will always need to have available a final, ultimate penalty for the truly most evil. Would life in prison without parole have satisfied the need for societal justice for Timothy McVeigh? How about Osama bin Ladin?

As they say, there are some people who just need killing.

Posted by: HisRoc | January 7, 2008 06:01 PM

tmurt,
And that is not cruel and unusual punishment?

Posted by: HisRoc | January 7, 2008 06:03 PM

But, but . . . . this will only lead to more capital litigation without end. How dare these people litigate the question of whether and how the states should be permitted to carry out executions? Let these murderers die like dogs. It's a post-9/11 world anyway, and if we're already going to destroy our country to save it, what harm will a few painful executions do?

It's all relative.

Posted by: ExAUSA | January 7, 2008 06:05 PM

Antonin Scalia is not suited to sit on any bench. He is thug and power hungry sycophant. He doesn't even pretend to use his powers of rationality, much less some sense of humanity. Barbaric retribution is just fine for one of the ultimate arbitrators of our time. Maybe we should import some Islamic punishment strategies? Being stoned to death is just a degree of pain for a murderer anyway.

Posted by: Cristine Tellers | January 7, 2008 06:33 PM

Since this seems to be a matter of discussion and complaint about methods, give the condemned his choice as how he wishes to be executed. Some states, Utah for one as I recall, has lethal injection, hanging, or firing squad. A menu, as it were, might be made available. Sorry, no "none of the above".

Posted by: Richard | January 7, 2008 06:44 PM

i feel so sorry that we're taking up antonin scalia's precious time with this stuff. let's let him go back to deciding elections. i hear there's one coming up ...

Posted by: sob | January 7, 2008 11:56 PM

The ultimate argument in favor of the death penalty is that the dead do not come back to commit that kind of act again on anyone anywhere anytime, ever again.

Life does not come easily nor can it easily be seperated from the living. That process probably causes pain in most instances, even natural or accidental cases, most of the time.

My question would be whether or not if we know a proceedure causes protracted, severe pain, should we allow it?

If the answer is no, then none of the methods ever used is 100% always and consistantly free of such pain.

But then what do we do with those who if given even one iota of a chance will kill again, even if it's a prison guard they kill. There is actually one such prisoner in the custody of the New York State prison system; and yes, he already has tried to kill a guard during his stay for another murder.

Posted by: Gary Wolpow | January 8, 2008 12:46 AM

The criminal justice system renders verdicts. In a verdict, it "speaks the truth." The truth is what 12 good men and true decide. DNA evidence proves they are sometimes wrong. A verdict in error followed by an execution has no remedy for the person that the state killed in the name of justice.

Posted by: Arthur H. Jeffries | January 8, 2008 03:17 AM

The message that causing death purposely is or is not OK is communicated by our practices and becomes the moral fiber of our society. Is life an unalienable right?
If we admit that, and legislate, judge, and
relate internationally accordingly we will create a world more in line with the highest ideals.

Posted by: sgey | January 8, 2008 03:23 AM

The Justices and America should be discussing whether the death penalty is humane, not lethal injection. Considering the fact that 5% of the people in prison may be innocent--Is it humane to kill an innocent person? Is it humane to keep someone on death row for year after year?

Posted by: ghostcommander | January 8, 2008 09:53 AM

The only reason MOST of these cases are brought to court is because some anti-death penalty lawyer and/or group files them on BEHALF of Death Row inmates. Because THEY feel bad about putting to death someone that has ALREADY KILLED!!! Most inmates that do file for themselves do so because they DO NOT WANT TO DIE! It's that simple. Besides you just don't get sentenced to death and that's it. I know, at least in TEXAS, you are tried and if found guilty and sentenced to death it is automatically appealed. So you have two different trials before you ever go to Death Row.

Posted by: David | January 8, 2008 10:02 AM

The reason Justice Scalia is so frustrated is because he's already made up his mind. On that point I agree with him. I, too hate sitting in on meetings where I've already decided how I will act.

The judge just doesn't get it. Justices are supposed to decide each case based on the facts presented. They are not supposed to decide a case based on their own preconceived notions.

Posted by: Al | January 8, 2008 10:36 AM

This, again, is another gift from the voters, in this country who gave us Bush.

Bush is going, but his court is for life.

Posted by: linda521 | January 8, 2008 10:39 AM

Of course the death penalty is nothing more than legally sanctioned murder by the state. The state should represent the best of humanity - not the worst. Sure, certain people need severe punishment but no one deserves the ultimate punishment - except from God. And the state, despite what the politicians who run it want to believe, is not God. But, those petty vengeful folks out there want their pound of flesh. This antiseptic method - behind closed doors - satisfies the public's base craving for blood under the guise of "justice." The death penalty should be carried out only one way - if the next of kin puts a gun to the murderer's head and pulls the trigger in public.

Posted by: JimiHendrix6is9 | January 8, 2008 11:20 AM

Jim, "legally sanctioned murder" is an oxymoron. Murder is by definition a crime, a killing outside of the law. By the same token, the death penalty is inherently lawful, as it is administered by a legitimate government.

Frankly, I simply don't buy into the idea that killing is inherently wrong.

Posted by: LtNOWIS | January 8, 2008 04:46 PM

It is extremely rare for a case to originate in the Supreme Court. This is why the Justices aren't arguing the legality of the death penalty, but the actual practice and implementation of lethal injections. It's Congress' job to legislate, not the SC.

Posted by: sgurd0187 | January 8, 2008 04:48 PM

Make death an alternate available to the prisoner to life in a supermax without possibility of parole - and the arguments evaporate. Or at least, there will be new and perhaps interesting ones.

Posted by: Bob King | January 9, 2008 01:07 PM

These cases ought to end by declaring the existing death penalty unconstitutional and instead using an indirect death penalty. In CA, we allow lethal injections, yet bend over backwards at incredible taxpayer expense to save inmates who need organ transplants and other forms of exorbitant health services, while the innocent children of middle-class working parents must DIE when they need a $500,000 heart or $750,000 liver. Why do we reward inmates and punish working people and their children? An indirect death penalty should just allow inmates to serve life terms w/o parole, but not come to the rescue to save these people when they need the health care that ordinary, good people are denied.

Posted by: SNorberg | January 9, 2008 03:46 PM

Why do you write so proudly that there always is another death penalty case at the Supreme Court, and there always will be. Is it not the right time to get rid of death penalty for ever?

Posted by: Bipin Adhikari | January 18, 2008 01:48 AM

It is really funny, we teach people not to kill, then we pay the government to kill, we go to war and kill many inocent people. The problem is Governments period. Each and the other preaching their way is the best way. But most intelligent developed countries have already banned the death penalty. We have evangelicals preaching against abortion and at the same time send their children off to war and espouse the death penalty. What is a Christian? PHooey on all of them. They need to learn from the supposed leader they follow. What would Jesus Do. Then Do it Stupid!

Posted by: Fred Schell | January 18, 2008 11:03 AM

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