The Supreme Court on Monday heard starkly different descriptions of Kentucky’s method of putting people to death, with a lawyer for a condemned prisoner asserting there is an unacceptable risk of agony and a lawyer for the state saying nothing could be further from the truth.
But what's interesting isn't the method of execution, it's when accidents and incompetence plays a role:
Mr. Verrilli argued that there are too many things that can go wrong in Kentucky executions, largely because poorly trained people are carrying them out, creating too much risk that a prisoner will die in great pain even though he is unable to cry out.
But, so far, Justice Scalia, Roberts, and Kennedy doesn't sound like they're having any of it:
Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy asked Mr. Verrilli to assume for a moment that the three drugs are handled correctly in every instance. “Would you have a case here?” Justice Kennedy asked.
Justice Antonin Scalia noted that execution methods that have fallen out of use — the electric chair, the firing squad, the hangman’s noose — have been abandoned in part because of fears that they were not pain-free.
But where is it written that the state must choose “the least painful method,” Justice Scalia demanded. “Is that somewhere in the Constitution?”
And the thing is, they are right. We don't have to pick the least painful method of execution. The Constitution merely states that there is a ban on "cruel and unusual" punishment.
When you put someone to death, there is at least a small amount of pain. You're putting them to death after all. But the difference is that we are so afraid of an inmate feeling even a few seconds of pain, that we are forgetting the reason they are on death row to begin with: They murdered someone.
Their actions resulted in the death of someone, who likely felt pain for several minutes, or even hours before they died. They were likely terrified of death for what seemed to be an eternity.
But the term "cruel and unusual punishment" was put into the Constitution to avoid the government from putting unnecessary pain onto a person. If you are to put someone to death, your goal is to put them down as quickly as possible, with as little pain as possible.
Please note, I said "as little pain as possible" and not, "no pain". When you inflict pain on a person for the simple reason of inflicting pain, then yes, you have a case for "cruel and unusual punishment". But when a person is feeling pain because they are dying and it is going as quickly as possible, you fail to argue that that method is "cruel and unusual".
These attorney's are arguing about the administration of lethal injection, rather than the actual method. Whether a single drug overdose will be better than a three drug combo.
However, if you give a person a single drug overdose, you are in essence, experimenting. That's something that cannot be tolerated. You put someone to death as quickly as possible, and if something goes wrong, that person's next of kin now has the option of suing because of Constitutional rights violations.
Plus, the person may not necessarily die. They may have an adverse reaction to the drug that no one foresaw. The only surefire way to execute someone in under a minute is beheading. Even experiments that date back centuries suggest that a person is only alive for an estimated 15-30 seconds before they die.
That's quicker then anything we currently subscribe to as a method of execution. Sure, it's gruesome, but if you have a better alternative, I'd be happy to hear it.
Travis
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