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Lethal Injection and the 8th Amendment

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As long-time readers will know, I’m an opponent of the death penalty, but a fairly tepid one. While I don’t think it ultimately accomplishes anything, I also think that as American injustices go, the death penalty circa 2006 is overrated. I would start with incarceration rates that are staggering outliers among liberal democracies before rarely-applied capital punishment. As a matter of constitutional law, I don’t think arguments that the death penalty is inherently unconstitutional are at all convincing. I think the Supreme Court basically got it right in both Furman and Gregg: the death penalty as practiced prior to 1972 was plainly unconstitutional, but states should have been given the opportunity to craft regimes that would be consistent with the Constitution. In other words, I can see arguments that the death penalty is unconstitutionally applied (although I’m not sure that this is currently true), but I do not believe that the death penalty for first degree murder is ipso facto unconstitutional although I would vote against such statutes as a legislator.

Some interesting arguments about application remain, however. Consider the one that the Supreme Court recently refused to hear:

The court turned down a challenge to Tennessee’s method of lethal injection, filed by an inmate on the state’s death row. The inmate, Abu-Ali Abdur’Rahman, convicted of a 1986 murder, argued that one of three chemicals the state uses “has the clear potential to inflict great pain,” although it is not needed to cause death.

The chemical, pancuronium bromide, paralyzes the muscles, giving the inmate a peaceful appearance, but can cause severe pain if not accompanied by adequate, sufficiently long-lasting anesthesia. Most states that carry out executions by lethal injection use the same chemical. At the same time, many, including Tennessee, forbid its use in veterinary practice for euthanizing animals.

The Tennessee Supreme Court rejected the defense’s argument that the state’s lethal injection protocol violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

Although the Court didn’t take the case, it seems to me that 8th Amendment arguments about lethal injection without sufficient anesthetic are considerably more powerful than the claim that the amendment categorically forbids the execution of those under 18. If prisoners are being tortured to death–and while this is obvious a question of fact, that states forbid the use of the chemical used to execute prisoners to euthanize animals strongly suggests a considerable risk–this seems central to the purposed of the cruel and unusual punishment clause. Granted, the medicalization of the death penalty is one reason I oppose it; making state executions a private, outwardly antiseptic process seems fundamentally at odds with the moral arguments that are the only remotely decent arguments for the death penalty. Nonetheless, the death penalty currently in place relies on the idea that it does not attempt to apply additional suffering, and it’s definitely a legitimate role of the courts to ensure that the state is held to the principles it uses to maintain public support for the death penalty.

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