Thursday, April 17, 2008

Baze v. Rees: preserving the “dignity” of executions


The Supreme Court has ensured a steep rise in the number of executions by ruling yesterday in Baze v. Rees that lethal injection, as practiced in Kentucky, isn’t unconstitutional just because it causes pain (as well as, you know, death). Roberts wrote that since any method of execution probably involves pain, and since the death penalty is constitutional, inflicting pain must be constitutional. He would not even say that “severe pain” is unconstitutional, unless a “readily implemented” alternative existed that greatly reduces that pain. In other words,

1) Roberts and the Court won’t let a little thing like severe pain get in the way of the machinery of death. It’s a matter of priorities, people.

2) Indeed, as the phrase “readily implemented” shows, if it’s a choice between inflicting severe pain on a prisoner and putting the state to some inconvenience, they’ll go with the former. Close enough for government work, as they say in the execution biz.

3) Prisoners objecting to a particular method of execution will be put in the grotesque position of being required to propose a method for the state to put them to death that they’d like better.

Roberts wrote that the risk of a screw-up in the administration of the drugs which results in severe pain or suffocation is not “objectively intolerable,” which is surely an oxymoron, but anyway, Roberts finds, this infliction of pain is in fact “widely tolerated,” so that’s okay then.

Speaking of tolerating pain, Clarence Thomas (joined by Scalia) adds that inflicting pain only violates the 8th Amendment if it is done just in order to inflict pain, as opposed to being incidental to execution. It’s the intent that matters, not the actual, you know, pain.

The petitioner asked for the paralyzing agent pancuronium bromide to be omitted from the execution procedure, since it serves no purpose beneficial to the prisoner but may disguise signs of pain. Roberts approvingly cited the lower court’s finding that it did serve the purpose of preventing seizures in the unconscious prisoner, “thereby preserving the procedure’s dignity”. Gotta preserve that.

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