Humane Murder and Capital Punishment in the High Court

The upcoming term of the Supreme Court delves into the issue of the death penalty in homicide cases once again. Capital punishment is the subject of a recently granted petition to the Court for certiorari and also the subject of a denied petition from Georgia.  The denied petition is significant because the denial follows the grant of a petition from three Oklahoma inmates on the issue of lethal injection.  There had been speculation among Supreme Court followers that the Court would halt all other executions until it decided the Oklahoma cases.  The denial of the Georgia petition indicates the Court's clear intention to allow other executions to proceed while it reviews Oklahoma's procedure.

exterior of Supreme Court building in Washington DC

I will no longer tinker with the machinery of death.

— Justice Harry Blackmun

The Court denied the petition for a Georgia man, Warren Hill.  His attorneys argued that Mr. Hill was intellectually deficient and therefore not eligible for the death penalty.  For background, the Court has previously ruled that the execution of a mentally retarded person is a violation of the 8th Amendment's prohibition of cruel and unusual punishment.  That ruling in Atkins v. Virginia from 2002 did not settle this debate, however, since the various states that allow capital punishment needed a procedure for deciding when someone was mentally deficient enough that the state could not execute them.

Georgia's system is obscenely strict when it comes to requiring the defendant to prove his mental deficiency beyond a reasonable doubt.  Georgia could have come up with a number of other formulations for this procedure, but instead chose the most onerous for the defense when our Constitution goes to great lengths to place the burden on the government.

The focus of Mr. Hill's petition is to challenge the constitutionality of this balancing.  Since the Court refused to hear the Petition, they have implicitly condoned this procedure.

The Court also recently granted a petition to hear the cases of three Oklahoma inmates over their challenge to the state's lethal injection drug protocol.  Over the past several months, the media has reported on a number of executions where inmates took hours to die and often seemed to suffer greatly.  The petitions from Oklahoma argue that the drug cocktail used violates the Eighth Amendment's ban on cruel and unusual punishment.

This issue has come to the forefront over the last year or two, partially from increased media coverage of apparently agonizing executions, but also from the refusal of several European manufacturers to allow their drugs to be used in executions.  Many of the drugs used in executions are also used to administer anesthesia to surgical patients, but obviously in lower quantities.  Thus, the threatened or carried out refusal to supply drugs from the manufacturers has resulted in critical drug shortages for surgeries. This threat has caused several states to modify the drug cocktails they are using, sometimes leading to the grisly results we have seen in cases like Joseph Wood's from Arizona last July.

The petition in Oklahoma focuses mainly on the use of midalozam with the goal of inducing coma-like unconsciousness.  Midalozam is a substitute for other drugs that are unavailable to Oklahoma, and which the petition argues would be better at achieving the unconsciousness the executioners seek.  The Petitioners argue that the drug cannot be reliably used as an anesthetic.

Initially, it appeared that the Court was going to agree to hear the cases, but not stay the executions of the petitioners.  This result can occur because the Supreme Court needs only four justices to hear a case, but needs five justices to stay an execution.  Earlier today, while writing this post, the Supreme Court stayed all three executions.

judge with gavel reviewing legal documents and scales of justice

One of the stranger debates we have participated in, as a society, since the death penalty's return in the 1970s, is how to "humanely" execute people.  The debate over whether the death is humane seems to be a veiled desire to placate our wishes to avoid the unpleasant reality that we are violently ending the life of a human being, no matter how wretched their actions.  If the death seems placid and humane, then as a society we can sleep easier knowing that we did only what "justice" required. Hence the clinical desire to make the death penalty look like a surgical procedure rather than what it is: state-sanctioned murder.

Our wish to suppress our guilt at putting people to death by assuring ourselves that it is done humanely is a delusion.  There is a reason why the American Medical Association strictly forbids its members from participating in any executions and has stated, "[a] physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution."

I could go on and on listing the moral and ethical issues for why the death penalty in this country should end — risk of killing innocent people, total lack of effective deterrence, the moral problem of presuming the right to kill anyone, the denial of the possibility of redemption — but that is the subject of another post.  Perhaps we should heed Justice Blackmun's warning and put this chapter of our history behind us.

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