That's the title of an editorial in today's Boston Globe. LINK
WHEN TEXAS, the killingest state in the union, issues a stay of execution for a death row inmate, you know something important is happening. On Tuesday - one day before 28 year-old Heliberto Chi was to be put to death - the Texas Court of Criminal Appeals issued a stop order, pending a review by the US Supreme Court on the constitutionality of lethal injection.
The high court agreed Sept. 25 to consider whether lethal injection violates the Eighth Amendment prohibition against cruel and unusual punishment. Of the 38 states that still impose the death penalty, all but Nebraska use the injection method (Nebraska still employs the old-fashioned electric chair). The court will hear arguments in February and probably rule by next summer.
When it first came into vogue in the 1980s, lethal injection was seen as a more clinical, somehow less brutal form of state-sponsored execution. But increasingly the administration of the three-drug cocktail used to paralyze and then stop the heart of an inmate has been found to go awry, with the condemned left to suffer. The American Medical Association prohibits its doctors from any involvement, including injecting the drugs, monitoring vital signs or declaring death.
At least 10 states in addition to Texas have halted executions amid litigation over lethal injection, waiting for the Supreme Court to clarify the conflicting patchwork of state court rulings. The case the court will hear is brought by two Kentucky death row inmates, who argue that lethal injection presents an "unnecessary risk" of pain and suffering, as opposed to a wanton infliction of pain, already found to be unconstitutional. Upon this legal fine point rests the fate of 3,291 men and 59 women.
Of course the death penalty is cruel. It is also arbitrary, since whether one receives the sentence depends on the accident of where a crime was committed - in a death penalty state or not. It is discriminatory, because it is applied more often when defendants cannot afford private counsel. It has never been found to deter crime, and it isolates the United States in a small club of the world's most brutal violators of human rights.
Two other Texas convicts sought stays of their execution orders while the Supreme Court was mulling its 2008 docket. On Sept. 27, the Supreme Court gave a reprieve to Carlton Turner, even though the Texas Appeals Court had earlier denied his request. But it was too late for Michael Richard, who was executed Sept. 25 - the very day the Supreme Court decided to hear the lethal injection arguments - because the Texas court had closed for business.
The haphazard, capricious way the legal system decides who lives or dies violates fundamental American principles of fair and equal justice. The Supreme Court already has said that "evolving standards of decency" will guide its thinking in capital punishment cases. Lethal injection, and the death penalty itself, both fail the test of decency.
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