At Slate, Dahlia Lithwick has a length examination of the oral argument, "Killing Me Softly."
While there is nothing funny about lethal injection, the dishonesty pervading the debate about it is just this side of hilarious. Both sides engage in the kind of deception usually reserved for conversations with future in-laws, or the sale of used car parts. On one side, you have death-penalty opponents earnestly insisting they aren't against capital punishment; they just want the procedure to be closer to what you might expect if you went in, say, for a nose job. On the other side, you have states like Kentucky solemnly intoning that their lethal injection procedure is a model of up-to-the-moment medical technology, rather than a bad system conjured up on the fly by Oklahoma's medical examiner in 1977, then copied by the various states in a nationwide cut-and-paste extravaganza.
Were we honest about it, we'd all agree that no one really wants more-tender executions. Death-penalty opponents see this as a step toward a permanent ban on capital punishment. And the 38 states that allow capital punishment have largely sloughed off the unseemly administration of executions to prison staff, who have been bungling and hiding it for decades. That's why using the fight over lethal injection as a proxy for the real fight over the death penalty is doomed from the start. No healthy relationship can be based on such ridiculous fibs.
Andrew Cohen writes, "Uncomfortable Lif-or-Death Moments for the Justice," at his Bench Conference blog on WashingtonPost.com.
"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.
The Houston Chronicle carries the editorial, "Not animals."
Central to the arguments was a question that had the judges struggling for reference points: How should trial courts assess legal challenges to states' lethal injection techniques?
The other question (which the judges might not address) was narrower: whether Kentucky's three-drug death "cocktail" unacceptably violates the court's standard on cruel and unusual punishment and thus violates the Eighth Amendment.
The answer to this is clearly yes, based on evidence from physicians and ethicists, frequent reports of bungled executions and the history of how the three-drug cocktail came to be.
Like Texas, Kentucky uses one drug to make the condemned prisoner lose consciousness, another to paralyze him and a third to cause fatal heart failure. Thirty-five of 36 states that execute use this procedure.
If the drug mix is not correctly administered and monitored, evidence shows the inmate will feel excruciating pain.
At Huffington Post, Human Rights Watch Senior Counsel Jamie Fellner has, "Lethal Injections Ill-Conceived, With Painful Results."
Even people who support capital punishment are uncomfortable thinking too much about the actual mechanics of putting someone to death. Lethal injection seemed to be the perfect solution. Compared to electrocution, gas or hanging, execution by lethal injection looks as humane as putting a horse to sleep, as Ronald Reagan once suggested.
But appearances are deceiving. Mounting evidence suggests some prisoners may have suffered horribly and needlessly before they died because executioners use a bizarre three-drug protocol hastily concocted 30 years ago and never revised. The Supreme Court has agreed to consider whether executions with these drugs pose an unnecessary and unconstitutionally cruel risk of pain and suffering. This case was brought against Kentucky, but the result will affect all 38 states that use lethal injections, so all have imposed moratoria on executions until the court rules on the legality of this method.
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