The Supreme Court is about to reconsider a form of punishment challenged by Kentucky death row inmates Ralph Baze and Thomas C. Bowling as cruel and unusual punishment. If it all comes to pass, we may well see a ruling against this type of lethal injection as contrary to the Eight Amendment. Arguments by the parties (in the case of Baze v Rees) start today.
What should we expect from a court which has, as Ronald Dworkin keeps reminding us, busied itself with revising established doctrines with right-wing élan? There would be no reason to assume that it would overturn an established practice. Death penalty abolitionists have no reason to cheer. The question, in any case, is a narrow one.
Then again, the interpreters of the law possess a multitude of tricks. In Furman v Georgia (1972), the states were ordered by the Supreme Court to halt executions. The death penalty as it was then applied violated the Eighth Amendment. This was merely to put the house in order: in 1976, the execution train was back on track. Similarly, Kentucky, Florida, Tennessee, Georgia, Alabama, Mississippi and Arkansas are waiting to resume their death-doing schedules in light of the current challenge.
The death penalty in the United States can only be tackled incrementally. There are few frontal assaults on it. Campaigners against it are caught in a bind: its barriers look impregnable at first instance–38 states employ it; 37 use lethal injection, one exception being Nebraska, which continues that rather distasteful practice of electrocuting its convicts. America’s prisons are stacked with execution fodder. Death row inmates, if they are not doing the rounds on the appeals circuit, seem to only interest photographer Oliviero Toscani.
The interest in the U.S. is not so much in abolishing the death penalty as moderating it. It must be systematically sound for those with bleeding hearts on the one hand and vengeful ones on the other. Killing convicts is a legal refinement, a bureaucratic perversion that measures death according to method and procedure. The inmate was administered with a needle with lethal poison–was that humane? Conversation on the subject resembles that of pet euthanasia.
This produces a profusion of idiosyncrasies. If executions have to exist, then let’s do it the ‘right’ way. Experts on execution in America exist like outsourcing consultants. Like all experts, they can’t quite decide on what form of punishment is best, let alone humane.
Fordham University has one, Deborah W. Denno, who is marketed, in the words of the New York Times, as ‘an expert on execution methods’. Not necessarily opposed to it, she manoeuvres within the limits of her brief. She comes out against lethal injection as possibly cruel and unusual, but falls back on sound legal practice and hedges her bets. State killing is a business, and the key is to get that business in right.
Could injecting a person with a dose of lethal toxins cause pain and be unduly cruel? Maybe, says Denno in a 2002 issue of the Ohio State Law Journal. It all depends on what the ‘cocktail’ contains. The error of executioners may lie in not procuring the right drugs, not bringing themselves up-to-date on the literature on ‘humane execution’. Pavulon or pancuronium bromide simply masks the ability of the convict to communicate while the other toxins go to work. Witnesses have noticed, without any hint of mock surprise, convicts ‘grimacing’.
Death penalty advocates often go the other way: The issue surrounding the lethal injection of Oklahoma bomber Timothy McVeigh was not that is was cruel, but that it was undeservingly humane. Death had to be a deterrent, a chilling spectacle to frighten potential killers.
And what of the doctors? Some prefer to turn Hippocrates in the grave and violate their undertaking to save human life. Doctors are not disallowed for involving themselves in giving advice to prisons in administering what amounts to a ‘medical’ procedure. There is a recommendation that they refrain from doing so, but there are no penalties for its breach. The Supreme Court is unlikely to challenge this.
In lethal injections, there is more than a faint suggestion that killing has been transferred from the mindless executioner to the ‘humane’ doctor. ‘Without question [lethal injection] is, in my opinion, extremely humane in comparison to either electrocution or execution by inhalation of poisonous gases’, wrote anaesthesiologist Stanley Deutsch to Senator Bill Dawson in February 1977. According to Deutsch, such a killing would be both ‘rapid’ and ‘pleasant’ for the convict.
There is a world of difference between the sedatives offered in the pneumatic chair of Deutsch’s Brave New World, and a penitentiary geared for death. It is Mengele-like in operation, the administration of lethal drugs in the name of state sanitation and moral improvement. Convicts become patients who erred in life and deserve a jab for their trouble making. Some degree of suffering must be had: ‘The prohibition’, stated the Kentucky Supreme Court in November 2006 ‘is against cruel and unusual punishment and does not require a complete absence of pain.’
In the end, the Supreme Court will simply work with what it has. Lethal injection won’t be condemned outright as a cruel and unusual form of punishment. Only its method–this particular type of drug ‘cocktail’–will be held up for execration. The execution show must go on. Besides, as the prosecutors in Tennessee keep reminding their superiors, there is always the electric chair.
BINOY KAMPMARK was a Commonwealth Scholar at Selwyn College, Cambridge. He can be reached at firstname.lastname@example.org