Last week, the United States Supreme Court upheld, by a 7-2 majority, the State of Kentucky’s three drug cocktail lethal injection protocol. It’s been reported in some quarters as a green light for executions. In fact, the opposite is true.
While the Court’s judgment means that a moratorium on executions, in place since last September, will be lifted in some States, its long-term significance may be more associated with strengthening the movement to render all executions in the US a breach of the Eighth Amendment and, thereby, unconstitutional.
The case addressed the question of whether using a three drug cocktail without safeguards to ensure the unconsciousness of the prisoner from the administration of the first drug, sodium thiopental, created such a risk of a painful death as to amount to a cruel and unusual punishment. The medical evidence in the case indicated that, if sodium thiopental did not produce a sufficient level of unconsciousness, the second drug, pancuronium bromide (used to produce paralysis) and the third drug, potassium chloride (intended to stop the heart) would produce excruciating pain but the now paralysed prisoner would be completely unable to communicate this to witnesses.
Although the majority found in favour of not disturbing Kentucky’s protocol 7-2, these numbers hide an important sub-text of the decision.
The lead judgment was written by Chief Justice John Roberts, a George Bush appointee who’s considered part of the more conservative wing; he was joined by two other judges, Justices Anthony Kennedy and Samuel Alito. The judgment is framed against the assumption (based on past decisions) that capital punishment is constitutional and does not stray consider more than the precise question before the Court. In a nutshell, they concluded:
… the proffered alternative must effectively address a ‘substantial risk of serious harm’ … To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as ‘cruel and unusual’ under the Eighth Amendment.
When it comes to questions of execution method, future litigation will treat these phrases as a key text and seek to frame argument and collect evidence accordingly.
But the main sub-text of the Court’s decision lies in the concurring yet controversial decision of 88 year old Justice John Paul Stevens. Justice Stevens was appointed by Gerald Ford and is considered to have become more liberal during his time on the Court. Part of the majority in Gregg v Georgia (1976) which affirmed the constitutionality of capital punishment (subject to a number of basic conditions) after a four year moratorium, Justice Stevens may have dropped his biggest bombshell yet for conservatives when he said:
Full recognition of the diminishing force of the principal rationales for retaining the death penalty should lead this Court and the legislature to reexamine the question recently posed by Professor Salinas, a former Texas prosecutor and judge: ‘Is it time to Kill the Death Penalty?’ … The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefit it produces has surely arrived.
Get Crikey FREE to your inbox every weekday morning with the Crikey Worm.
Lest it be thought that his interest was only in academic discussion, after setting out a number of arguments for the death penalty having lost its historic justification, Justice Stevens said:
I have relied on my experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernable social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment…”
In setting out his opinion on this point, Justice Stevens was citing the judgment of White J. in Furman, which had put in place the moratorium that Gregg v Georgia had brought to an end.
Conservative Justices Scalia and Thomas took up the challenge thrown out by Justice Stevens and strenuously defended the constitutionality of the death penalty and lethal injections. It is interesting to remark, however, how their arguments looked backward to the social conditions at the time that the Eighth Amendment was adopted and the advantages that lethal injection provided over burning at the stake and breaking on the wheel. Justice Stevens, by contrast, framed his arguments around the social changes since Gregg v Georgia that had, in his opinion, rendered its conclusions no longer appropriate.
Lest it be thought that Justice Stevens is an old man singing in the wilderness, Justice Alito* (who signed the lead judgment and delivered a separate opinion) stated at the end of his reasons (without indicating his own views):
The issue presented in this case – the constitutionality of a method of execution – should be kept separate from the controversial issue of the death penalty itself. If the Court wishes to reexamine the latter issue, it should do so directly, as Justice Stevens now suggests. … The Court should not produce a de facto method-of-execution rules that lead to litigation gridlock.
Justice Breyer (who also signed the lead judgment) concluded his separate opinion stating:
The death penalty itself, of course, brings with it serious risks, … These risks in part explain why that penalty is so controversial. But the lawfulness of the penalty is not before us.
Those who act for death row inmates will be encouraged to include issues more fundamental than method of execution in future appeals.
*Justice Alito was appointed by George W Bush on 1 February 2006 and is considered conservative. However, he voted with the majority (6-3) to refuse a request to vacate a stay of execution issued by a lower court for a death row inmate, Michael Taylor.