"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Wednesday, April 16, 2008

SCOTUS Rebuffs Abolitionists

Baze v. Rees has been decided today, and amidst the weeping of the abolitionists, the SCOTUS ruled 7-2 that lethal injection, the predominant and often only method of execution used by 36 states and the Federal government, is not "cruel and unusual" punishment.

Chief Justice Roberts wrote the majority opinion, but there were several concurrences. Only Souter and Ginsburg dissented. Roberts' opinion concludes that there is no evidence that Kentucky's regime of administering lethal injection unreasonably risks an inmate being accidentally conscious during administering of the lethal drugs.

Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States. Petitioners agree that, if administered as intended, that procedure will result in a painless death. The risks of maladministration they have suggested—such as improper mixing of chemicals and improper setting of IVs by trained and experienced personnel—cannot remotely be characterized as “objectively intolerable.” Kentucky’s decision to adhere to its protocol despite these asserted risks, while adopting safeguards to protect against them, cannot be viewed as probative of the wanton infliction of pain under the Eighth
Amendment. Finally, the alternative that petitioners belatedly propose has problems of its own, and has never been tried by a single State.
Even Justice Stevens, in a long concurrence laying out his policy reasons for opposing the death penalty and arguing that the death penalty is violative of the Eighth Amendment, had to admit that the SCOTUS has ruled that capital punishment is constitutional, and has established a framework for evaluating which methods are "cruel and unusual;" and under that framework, lethal injection is not unconstitutional.

Scalia, of course, is his usual incisive self, and, agreeing with my prescient analysis in this posting, skewers Stevens' gestalt reasoning. Scalia has no brook for a jurisprudence that has judges routinely negating democratically decided policies: "the people have determined whether there is adequate contribution to social or public purposes [by having a death penalty], and it is no business of unelected judges to set that judgment aside."

In a stunning slapdown of Stevens, Scalia notes that Stevens asserts:

“I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional. (emphasis added). Purer expression cannot be found of the principle of rule by judicial fiat. In the face of JUSTICE STEVENS’ experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress—who retain the death penalty as a form of punishment—is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.”.... The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” It is JUSTICE STEVENS’ experience that reigns over all.

Justice Thomas, the only true, unadulterated originalist on the Court (yes, not even Nino is wholly pure) has a fascinating concurrence outlining the original understanding of the Eighth Amendment, concluding that the framers meant to outlaw only those punishments which were "torturous;" that is, designed to inflict pain beyond that necessary to effectuate death. Armed with this understanding, supported by precedent wherein the Court has three times rebuffed efforts to have them rule that a particular execution method is cruel and unusual, Thomas is able to conclude that lethal injection, a method clearly not designed to inflict gratuitous pain (on the contrary, adopted to great acclaim as a way to make executions less painful), easily survives an Eighth Amendment challenge.

Thomas cuts to the real issue in this trenchant observation:

It is not a little ironic—and telling—that lethal injection, hailed just a few years ago as the humane alternative in light of which every other method of execution was deemed an unconstitutional relic of the past, is the subject of today’s challenge. It appears the Constitution is “evolving” even faster than I suspected. And it is obvious that, for some who oppose capital punishment on policy grounds, the only acceptable end point of the evolution is for this Court, in an exercise of raw judicial power unsupported by the text or history of the Constitution, or even by a contemporary moral consensus, to strike down the death penalty as cruel and unusual in all circumstances. In the meantime, though, the next best option for those seeking to abolish the death penalty is to embroil the States in never-ending litigation concerning the adequacy of their execution procedures.
Justice Thomas then laments that the present decision will simply ensure more of this micro-managing-of-execution litigation by abolitionists.

A good win for the Commonwealth of Kentucky, for the victims of the murderers whose excecutions have been stayed, and for anyone who values democracy and the rule of law, not the rule of lawyers.

One loser is Virginia Governor Tim Kaine, who only a short time ago used the pendency of this case as political cover to impose a moratorium on executions in Virginia. Gov, you'll have to find some other excuse to thwart the course of justice in these cases.

1 comment:

Sarah said...

In my Crim. Pro. II class we argued then decided the Louisiana death penalty case for a kiddie rapist.

The final vote was 15-12 to overturn the sentence, with about 10 members of my class opining that the death penalty is always cruel and unusual.