Supreme Court Affirms Kentucky's Lethal Injection Protocol

The good news is that every member of the Supreme Court agrees that disemboweling, beheading, drawing and quartering, dissecting, and burning alive all violate the Eighth Amendment's prohibition of cruel and unusual punishment. The bad news is that seven justices in a maze of opinions (the lead opinion, written by Chief Justice Roberts, is joined only by Justices Kennedy and Alito) agree that Kentucky's lethal injection protocol is not cruel and unusual, at least on the record that was made in the Kentucky case.

The decision and the multiple opinions it generated may or may not end the de facto moratorium on death penalty implementation, but it will only fuel the growing debate about the wisdom of death as punishment for a crime. Consider, for instance, the concluding remarks in Justice Breyer's opinion concurring in the result:

The death penalty itself, of course, brings with it serious risks, for example, risks of executing the wrong person, ... risks that unwarranted animus (in respect, e.g., to the race of victims), may play a role, ... risks that those convicted will find themselves on death row for many years, perhaps decades, to come, .... These risks in part explain why that penalty is so controversial. But the lawfulness of the death penalty is not before us.

Is Justice Breyer inviting fresh challenges to the death penalty on some or all of these grounds?

Justice Stevens is equally concerned that the Kentucky decision "will generate debate not only about the constitutionality of the three-drug protocol ... but also about the justification for the death penalty itself." Let's hope it does.

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    Jeralyn, is there some notion that (5.00 / 1) (#1)
    by MarkL on Wed Apr 16, 2008 at 11:41:12 AM EST
    the criminal must be conscious when executed?
    You'd think it would be easy to execute someone via a lethal intravenous dose of morphine or whatever.

    BTW, I'm not a death penalty (5.00 / 1) (#4)
    by MarkL on Wed Apr 16, 2008 at 11:54:54 AM EST
    supporter, although I'm not strongly opposed.
    I just don't see the value society derives from executing criminals.

    Revenge (none / 0) (#10)
    by Claw on Wed Apr 16, 2008 at 02:19:30 PM EST
    Revenge is the "value" and the reason.

    thanks, tchris (none / 0) (#2)
    by Jeralyn on Wed Apr 16, 2008 at 11:47:16 AM EST
    I'm in court and really appreciate you posting this.  very unfortunate opinion.

    The first drug is a barbituate (none / 0) (#7)
    by ineedalife on Wed Apr 16, 2008 at 01:25:25 PM EST
    The first drug puts the inmate under. So they should not be conscious. The risk of it being improperly administered puts the whole procedure in question.

    I agree that a single drug that first puts the inmate under and then later kills them would be more humane, if you must use the death penalty at all.


    No (5.00 / 1) (#6)
    by kenoshaMarge on Wed Apr 16, 2008 at 12:40:22 PM EST
    surprise coming from the Robert's court.

    I try not to comment very often about anything pertaining to the death penalty since I am so anti-death penalty I am deranged on the subject.

    It just continues to amaze me that people that consider themselves descent human beings and/or Christians would believe they have a right to kill someone. This especially astounds me with the large numbers of people who have been proven to be not guilty in recent months and years.

    Better stop. I really cannot discuss this matter in a rational way.

    Right action (none / 0) (#9)
    by Natal on Wed Apr 16, 2008 at 01:54:25 PM EST
    For the vast majority of the 150,000 thoughts and actions we undertake each day we have no idea if the resulting effects will be beneficial to us or the surroundings. Such is our plight in this realm.

    Welcome to Bushmenistan! (5.00 / 1) (#8)
    by caramel on Wed Apr 16, 2008 at 01:45:01 PM EST
    This is pathetic... Not only America still executes people but will continue doing so using a method that doesn't meet vet's standards. How much lower is this country going to fall?

    seven to two (none / 0) (#11)
    by diogenes on Wed Apr 16, 2008 at 03:32:32 PM EST
    A seven to two vote is not Bushmenistan.
    Convince the majority of people that the death penalty should not happen and then it will disappear.

    Still willing... (none / 0) (#3)
    by fiver5 on Wed Apr 16, 2008 at 11:49:33 AM EST
    to tinker with the machinery of death.

    According to NPR (none / 0) (#5)
    by sarcastic unnamed one on Wed Apr 16, 2008 at 12:27:01 PM EST
    the decision basically said that while it is possible that mistakes could be made in the execution process which could cause undo pain and suffering, KY has sufficient safeguards in place to prevent that from happening.

    Against the death penalty (none / 0) (#12)
    by splashy on Wed Apr 16, 2008 at 03:33:52 PM EST
    For many reasons here, but have to say I don't understand why they can't just administer a massive amount of barbiturates for a long time instead of painful drugs to kill them. Doesn't make any sense to me.

    Ms. TL; (none / 0) (#13)
    by Wile ECoyote on Wed Apr 16, 2008 at 03:34:45 PM EST
    I would love to hear your thoughts on Dr. Pou's drug protocol used post-Kartrina.  Seems like it may be the one to use in prisons.  

    It has been (none / 0) (#14)
    by facta non verba on Wed Apr 16, 2008 at 05:16:19 PM EST
    a long time since I have read a Supreme Court opinion in full. Much was lost on me since I am not a lawyer and so all cases referenced are meaningless to me.

    I was struck by this line:

    Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of "objectively intolerable risk of harm" that qualifies as cruel and unusual.

    I fail to understand the logic of this.

    Justice Roberts is a Catholic and a practising one at that. While I am already fatigued by the Pope's visit, what would Benedict XVI say on this?

    "Bad news"? (none / 0) (#17)
    by Beldar on Wed Apr 16, 2008 at 07:16:13 PM EST
    It's only "bad news" if you're an across-the-board opponent of the death penalty.

    In any event, it's an interesting set of opinions -- and it certainly demonstrates that there's no monolithic conservative or liberal block (with Stevens and Breyer both concurring in the judgment, but Scalia and Thomas refusing to join Roberts and Alito).

    I don't agree, however, that this will generate more stays or other death penalty litigation in the near term. 7/2 means the freeze is kaput, if nothing else.  Texas, for one, will be re-issuing death warrants before April is gone, and scheduling executions for late May or early June.

    In lieu of a trackback, here is a link to my more extended take, as a conservative lawyer/blogger and death penalty supporter, but written in lay terms as best I can.