His FindLaw.com Writ commentary is, "The Upcoming Supreme Court Lethal Injection Death Penalty Case: How It Will Likely Illustrate the Serious Ideological Divisions That Continue to Separate the Justices."
Of all the cases on the docket, the lethal injection death penalty case may well prove the most divisive, and reflect most clearly the unbridgeable chasm that currently divides liberal and conservatives in our legal culture. Two hundred and twenty years after the Constitution was written, we are as much at sea as ever about how to read our founding charter.
In the 1980s, most of the states that have capital punishment switched over from electrocution to lethal injection, on the theory that injecting a cocktail of poisons would be more painless and humane than the "old sparkies" that then prevailed (and sometimes malfunctioned, to horrific effect). Today, of the 38 death penalty states, all but Nebraska use lethal injection, and almost 90% of all executions since 1976 have used the needle rather than the chair or other methods.
For decades, the lethal injection states have used the same three-drug combination - sodium thiopental (a short-acting anesthesia), pancuronium bromide (which paralyzes the muscles), and potassium chloride (which stops the heart). There is a growing consensus, however, that this now long-since-antiquated cocktail, even when properly administered, causes extraordinary and unnecessary pain. Indeed, in many places, the cocktail used to kill humans is banned for use in the euthanasia of animals. And, as might be expected of such a morbid process, the process of execution by lethal injection, like the process of electrocution before it, is also prone to human error, further exacerbating the risk of unnecessary pain.
For these reasons, a number of states have halted the use of lethal injection, pending a review of their respective death penalty "protocols." And elsewhere, federal judges have stepped in to stop executions or prompt further review.
And:
The wild card, as so often is the case with the Roberts Court, will be Justice Kennedy. On one hand, he may be the Court's most moralistic justice, the one most likely to read the Constitution through the prism of his own values or, perhaps more accurately, of the values to which he thinks the nation should aspire. This part of Kennedy is likely to find abhorrent the notion that, out of inertia, 37 states use a badly outmoded and potentially horrific method of execution. No good government should aspire to this low standard.
On the other hand, Kennedy has been generally very tough on the issue of the death penalty and very skeptical of death penalty abolitionist tactics. He will worry about the slippery slope of a decision forcing states to rethink their execution protocols. In particular, he will want to avoid any suggestion that states must constantly upgrade their methods to fit advances in science, and will not want to join a decision that predictably opens the door to a steady stream of new attacks on execution methodology.
On balance, I suspect that Kennedy's sense of morality will outweigh his concerns about not over-regulating the states, leading him to reach the result that the current protocol for lethal injection violates the Eighth Amendment. But whichever way the case comes out, the shouting will be heard from coast to coast, and will remind us yet again that we are as far as ever from settling the core issues of how to read our Constitution.
A hat tip to Doug Berman's Sentencing Law and Policy.
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