Supreme Court Upholds Lethal Injection

Jacob Sullum | April 16, 2008

Today the U.S. Supreme Court upheld lethal injection, the execution method used by nearly every state with capital punishment, against a challenge by two Kentucky murderers who argued that it violates the Eighth Amendment. Seven justices agreed that the three-chemical lethal injection method, which involves a barbiturate for anesthesia, pancuronium bromide to paralyze the muscles, and sodium potassium chloride to stop the heart, is not "cruel and unusual punishment." But they disagreed about the proper standard to apply in reaching that conclusion.

The plurality opinion by Chief Justice John Roberts, which was joined by Justices Anthony Kennedy and Samuel Alito, says Kentucky's execution method passes muster because it does not pose a "substantial risk of serious harm": Although it's true that a condemned man will experience suffocation and pain if he is not given an adequate dose of the anesthetic, the odds of such a mistake seem to be pretty low. In a concurring opinion, Justice Stephen Breyer says there is not enough evidence to conclude that the three-drug method poses even "a significant risk of unnecessary suffering," a more easily satisfied test for cruel and unusual punishment. While expressing reservations about the use of pancuronium bromide (which, among other things, prevents the prisoner from signaling his discomfort if he does not get enough of the barbiturate) and about the death penalty generally, Justice John Paul Stevens agrees that there isn't enough evidence on the record to overturn the procedure. Justices Antonin Scalia and Clarence Thomas say an execution method violates the Eighth Amendment "only if it is deliberately designed to inflict pain." The two dissenters were Justices Ruth Bader Ginsburg and David Souter, who favored remanding the case for consideration of whether Kentucky's failure to adopt safeguards used by other states to make sure the prisoner is unconscious "poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain."

Here is my last comment on the subject, which includes links to earlier reason coverage. 

Comments

|4.16.08 @ 3:36PM|#

David Souter...the second(*) biggest mistake of GHWB. What an embarrassment to NH.

(*) The first of course being having children.

|4.16.08 @ 3:47PM|#

I don't think that plurality opinions should count as valid opinions of the court. If SCOTUS can't get at least 5 people to join an opinion, there simply isn't one and I don't feel compelled to recognize the plurality opinion as any indication of what the law is.
Of course I completely understand that the dudes with the guns (aka the government) will but that doesn't mean I am wrong.

ed|4.16.08 @ 3:48PM|#

I think the most humane thing is to give death-row inmates a choice:

A) Lethal injection
B) Bullet to the brain
C) The View

|4.16.08 @ 3:52PM|#

I don't think that plurality opinions should count as valid opinions of the court.

Even doing nothing counts as doing something (upholding the lower court), so the Court rules every time it takes a case. Given that it has ruled, a plurality opinion is better than no opinion. Future SCOTUSes and lower courts can weight it appropriately, and pick and choose whatever passages support what they wanted to do anyway.

nitpicking physiologist|4.16.08 @ 3:54PM|#

I'm pretty sure it's *potassium* chloride that stops the heart.

B|4.16.08 @ 3:58PM|#

The state shouldn't have the power to kill people, period.

Arguing about the relative merits of a particular method on humanitarian grounds is gigantic waste of time.

|4.16.08 @ 3:58PM|#

Kentucky's execution method passes muster because it does not pose a "substantial risk of serious harm"

Does the SCOTUS use a different definition of "harm" than the rest of us? Isn't something that kills you by definition harmful?

|4.16.08 @ 4:00PM|#

I think there's a difference between a "decision" and an "opinion." Seven justices signed on to the decision to permit lethal injection, even if no more than three could get behind a single opinion as to why this was the case. So there is a majority decision, even if only a plurality opinion.

Taktix®|4.16.08 @ 4:01PM|#

Hate to Godwin this thread early, but our Supreme Court just upheld a method first practiced by, you guessed it, The Nazis.

|4.16.08 @ 4:01PM|#

and sodium chloride to stop the heart

They force feed these guys thousands of Burger King fries?

The Wine Commonsewer|4.16.08 @ 4:02PM|#

I could easily sign off on a death penalty repeal if it meant that the guilty truly would spend eternity in prison.

That, of course, doesn't always happen. Think of the continual revolving door that the Manson Girls use every few years in their attempt to cajole the parole board into cutting them loose.

Life in prison should mean exactly that. I don't care that you got better or you got religion or that you're so fargin' old you couldn't possibly be a danger to society anymore.

New World Dan|4.16.08 @ 4:02PM|#

If you give the state the power to kill people, is it that important how its done? And if you're doing it as a deterrent, why not the more brutal the better? I think you ought to give the condemned a choice in the matter. I'd go for the firing squad every time.

The Wine Commonsewer|4.16.08 @ 4:03PM|#

Isn't something that kills you by definition harmful?

Only if you're talking about smoking.

|4.16.08 @ 4:03PM|#

Hate to Godwin this thread early, but our Supreme Court just upheld a method first practiced by, you guessed it, The Nazis.

Eisenhower demanded and got the interstate highway system based on the Nazi's Autobahn, so I guess we shouldn't use it.

Our space program was designed by Nazis, so I guess should shoot down all our satellites.

Jerry F|4.16.08 @ 4:04PM|#

Being a pro-life Christian, I say gas the fuckers.

|4.16.08 @ 4:11PM|#

I would like the SCOTUS to stop dicking around with the death penaly. We are killing somebody, it really doesn't matter to me if he is in root canal pain before he dies.

I would like the citizens of this great land to eliminate the death penalty by statute even more.

Taktix®|4.16.08 @ 4:12PM|#

Eisenhower demanded and got the interstate highway system based on the Nazi's Autobahn, so I guess we shouldn't use it.

Our space program was designed by Nazis, so I guess should shoot down all our satellites.

Not the same thing. The Nazis are notorious for their killing of millions of people, not for their roads or space program.

Sir Robert Inge|4.16.08 @ 4:18PM|#

Sweet!

Sir Robert Inge|4.16.08 @ 4:23PM|#

"Does the SCOTUS use a different definition of "harm" than the rest of us? Isn't something that kills you by definition harmful?"

No, it's serious harm and any harm to a convicted killer is not worthy of serious consideration.

Kolohe|4.16.08 @ 4:26PM|#

and sodium chloride to stop the heart

To pile on:

When combined with di-hydrogen monoxide, it's even more lethal.

robc|4.16.08 @ 4:32PM|#

The Nazis are notorious for their killing of millions of people, not for their roads or space program.

I sorta agree with you on the space program, but not on roads. Although "notorious" wouldnt be the word you would use for the autobahn, I dont think.

ktc2|4.16.08 @ 4:36PM|#

Again, death penalty should be use for politicians only.

|4.16.08 @ 4:36PM|#

and sodium chloride to stop the heart

To pile on:

When combined with di-hydrogen monoxide, it's even more lethal.

I'm a sailor, so I'm well aware of the deadly results of combing those two chemicals in quantity. Thousands are killed annually.

|4.16.08 @ 4:38PM|#

The State doesn't condemn people to death -- juries do.

Also, if capital punishment is "the state killing people", then imprisonment is "the state kidnapping people", and fines are "the state extorting from people." If you're going to have a punitive justice system, the state has to be allowed to do things to people (after due process, of course) that an ordinary citizen would not be permitted to do to another.

|4.16.08 @ 4:45PM|#

Prosecutors screen out people who seem squeamish about the death penalty. Jurors have to be "capital certified" to serve on a federal capital case, as I understand it.

Yes, they're sentenced by juries: stacked juries.

|4.16.08 @ 4:50PM|#

A prosecutor can do an unlimited number of "challenges for cause" of jurors - dismissing members of the juror pool for a reason of prejudice.

The problem is, not believing the death penalty - knowing beforehand that you aren't going to be voting to execute - is considered a valid reason for a dismissal.

|4.16.08 @ 4:53PM|#

Screening out people who would refuse to vote for a death penalty regardless of the specifics of the case doesn't stack the deck in favor of the death penalty. It merely ensures that the jurors will make their decision based on the specifics of the case in question -- you know, what the law says they're supposed to do.

|4.16.08 @ 4:55PM|#

The problem is, not believing the death penalty - knowing beforehand that you aren't going to be voting to execute - is considered a valid reason for a dismissal.

You don't think knowing how you're going to vote before you even know what the case is, let alone hearing any evidence in that case, is a valid reason for dismissal from a jury?

|4.16.08 @ 5:04PM|#

You don't think knowing how you're going to vote before you even know what the case is, let alone hearing any evidence in that case, is a valid reason for dismissal from a jury?

Not at all. We're talking about being prejudicial regarding sentencing, not regarding guilt or innocence. Dismissal would only be valid if you were prejudicial against all available sentencing options for a guilty verdict.

|4.16.08 @ 5:10PM|#

OK, so I get that even people who think the death penalty should be deep sixed generally don't care if the executee has an awful last five minutes.

But if part of your opposition to the practice in the first place is the proven incompetence of the state when it comes to actually convicting guilty people, you probably shouldn't assume that the executee always deserves to die, much less in agony. Especially since the classes of suspects who are most likely to be railroaded in the first place are probably the classes most likely to be executed.

Syd|4.16.08 @ 5:30PM|#

nitpicking physiologist | April 16, 2008, 3:54pm | #
I'm pretty sure it's *potassium* chloride that stops the heart.

I'm sure so, too. An overload screws up the electrolyte balance between interior and outside the heart cells. The barbiturate is usually a sodium compound though.

|4.16.08 @ 5:32PM|#

The state shouldn't have the power to kill people, period.

Well, there go the police and the military.

|4.16.08 @ 5:53PM|#

I don't understand why they need three shots to do the job. What's wrong with good old fashioned morphine? Or for that matter, a noose?

|4.16.08 @ 5:56PM|#

Serious question: why not just kill them with an overdose of barbituates? Why screw with the potassium? (By the way, if the person it conscious at all, death by potassium would be agonizing.)

Disclaimer-I'm against the death penalty. I just don't understand why the use of the cocktail is preferable to a massive barbituate overdose.

Michael Ejercito|4.16.08 @ 6:20PM|#

The state shouldn't have the power to kill people, period.

So then police officers should not be allowed to kill anyone under any circumstances?

After all, they work for the state.

Michael Ejercito|4.16.08 @ 6:22PM|#

Disclaimer-I'm against the death penalty. I just don't understand why the use of the cocktail is preferable to a massive barbituate overdose.

So what is to be done with them?

We can not exactly put them to sleep and keep them alive in a comatose state for eighty plus years; it is not technologically feasible.

Michael Ejercito|4.16.08 @ 6:25PM|#

Prosecutors screen out people who seem squeamish about the death penalty.

Are they also allowed to screen out people who are squeamish about imprisonment?

If so, do you object to that as well?

|4.16.08 @ 7:07PM|#

With all of Radley's posts about how fucked your prosecutorial system seems to be, I am surprised at the level of support for the death penalty hereabouts. If they fuck up warrants, if they fuck up autopsies and forensics, if they fuck up DNA, why would you assume that suddenly, because the death penalty is in play, they'll get it right this time? Just saying . . .

|4.16.08 @ 7:41PM|#

I'm against the death penalty -- I'm actually pro-life, not just pro-life for fetuses, and anti-government.

As for choice of execution -- wouldn't the most humane be a choice of methods, with one choice being a lethal overdose of something like heroin or morphine?

Not that WoD-loving politicians would ever go for that -- can't have the state condoning drug use for capital punishment -- that stuff is BAD for you!

|4.16.08 @ 7:56PM|#

The solution to a fucked-up justice system is to fix the justice system, not get rid of the death penalty. Spending decades of the prime of your life in prison is just as irreversible as execution, but no one seems to want to abolish long-term imprisonment for that reason.

|4.16.08 @ 7:58PM|#

I'm actually pro-life, not just pro-life for fetuses,

You don't see any difference between someone who brutally murdered people and an innocent unborn? The two issues are apples and oranges.

|4.16.08 @ 8:00PM|#

Oh yeah, and I don't understand why the firing squat has fallen out of fashion as an execution method. Cheap, quick, and (relatively) painless.

|4.16.08 @ 8:09PM|#

We're talking about being prejudicial regarding sentencing, not regarding guilt or innocence.

So you wouldn't have a problem with a capital juror who decided he was going to vote for the death penalty before hearing any evidence?

|4.16.08 @ 8:14PM|#

Prolefeed,

Supposedly, Thomas Edison, a proponent of direct-current electric power pushed the electric chair as an execution method to demonstrate how lethal his rival alternating-current power could be. So in that way it would make sense for the WOD backers to support ODing executees with street drugs.

|4.16.08 @ 8:23PM|#

So you wouldn't have a problem with a capital juror who decided he was going to vote for the death penalty before hearing any evidence?

That's not the same. Voting for prior to trial is an assumption of guilt. Voting against prior to trial is a moral stance that has no bearing on guilt, only on the penalty if the suspect is found guilty. The only time there would be a conflict is if the state mandated that a guilty verdict must equate to the death penalty.

|4.17.08 @ 12:23AM|#

MP,

Whatever. It's not sensible to empanel a juror who has already decided what their vote will be -- either in the conviction/acquittal stage or in the sentencing stage. That's not just my opinion -- it appears the courts agree with me on that.

There are plenty of other biases towards acquittal and non-use of the death penalty built into the system.

|4.17.08 @ 12:26AM|#

Voting for prior to trial is an assumption of guilt. Voting against prior to trial is a moral stance that has no bearing on guilt, only on the penalty if the suspect is found guilty.

This isn't necessarily the case, either. Isn't it possible for a prospective juror to opine prior to trial that, if the accused is found guilty of the heinous acts he is charged with, the juror will automatically vote for the death penalty? Thus, this is NOT a presumption of guilt. Would you have a problem with such a juror sitting on a death penalty case?

Rigoberto|4.17.08 @ 2:07AM|#

Chris, perhaps you do not fully understand or appreciate the difference between life imprisonment and the death penalty. One offers the truly innocent to challenge a unjust conviction; the other is permanent punishment that, if the person should be found innocent in the future offers no recourse.

I'm sure you can value the difference. The recent exonerations based on current DNA profiling techniques and arson investigation techniques should be enough to prove that.

Michael Ejercito|4.17.08 @ 11:50AM|#

Rigoberto,

So what is to be done with them?

We can not exactly put them to sleep and keep them alive in a comatose state for eighty plus years; it is not technologically feasible.

Rigoberto|4.17.08 @ 11:57AM|#

A life sentence will do. I know, I know "it's expensive", but it would be cheaper if people convicted of non-violent drug offenses and and others convicted of victim less crimes (johns) the prison system would not be so overwhelmed.

|4.17.08 @ 2:23PM|#

I have no compassion for ruthless murderers, but our government isn't even remotely competent enough to deal with such permanent consequences.

Zeb|4.17.08 @ 3:14PM|#

All executions should be public and gruesome. Firing squad is a good choice. And whatever happened to beheading? The guillotine was fast and apparently painless when used properly. Lethal injection, by whatever method, is an attempt to medicalize execution and pretend that it is something other than cold blooded killing. If people are going to be for the death penalty, then they ought to have the reality of it shoved in their face.

I wonder if public executions would make the death penalty more or less popular?

Also, police should really only have the same power to take life as anyone else does: you can shoot someone who is going to kill you or some innocent person. Neither the military nor the police should have any power to kill besides that.