A semi-formal moratorium on executions by lethal injection will probably end due to last week’s decision by the US Supreme Court. On April 17, the Court voted 7 to 2 to deny a petition by two men on Kentucky’s death row to stop their execution by lethal injection.
In the case of Braze v. Rees, the Court was asked to consider the possibility that the specific way Kentucky executes people may actually inflict severe pain and therefore violate the constitutional prohibition against cruel or unusual punishments.
The Court stopped six planned executions while it heard the case, and other states held off from executing people until this case was decided.
The usual way execution by lethal injection proceeds is to apply three drugs: the first sedates the victim, the second paralyzes his or her muscles, and the third stops the heart, causing death.
The plaintiffs argued that in some recent cases death came slowly, suggesting that the victim may have suffered greatly but was unable to indicate so because of the effect of the paralyzing drug. This nightmarish scenario, they stated, violates the Constitution. They did not call for an end to the death penalty, but sought more humane methods of execution.
The majority opinion denied the plaintiff’s petition based on several different rationales. Chief Justice John Roberts said that the plaintiffs had not provided proof that in fact such pain was being experienced. Justice Thomas added that in any case “cruel and unusual punishment” is not unconstitutional unless it is inflicted deliberately, not accidentally as in the cases cited.
Only Justices Souter and Ginsburg dissented.
But very interesting was the statement submitted by Justice John Paul Stevens, a Gerald Ford appointee to the high court who voted with the majority. Stevens used the opportunity to question “the justification for the death penalty itself.”
Stevens related his change of heart on capital punishment (he used to support it) after the 2007 “Uttrecht” case in which the court ruled it constitutional for state prosecutors to exclude opponents of the death penalty from juries trying capital crimes; a ruling which he says troubled him deeply.
Stevens is by no means the first Supreme Court Justice in recent history to denounce the death penalty, but his statement nevertheless gave encouragement to the growing death penalty abolition movement.
Outside of the US, the trend has been to do away with the death penalty. For example, in the year 2006, not one single person was officially put to death in the whole Western Hemisphere, except in the United States where 53 people were executed. Neither Canada nor Mexico has the death penalty. Nor does most of Europe.
In the US, Texas is by far the champion state for executing people. David Atwood, founder of the Texas Coalition Against the Death Penalty stated on Amy Goodman’s “Democracy Now” radio program that there are 370 people on the Texas death row.
Atwood added that executions there are likely to move forward, now that the Supreme Court has issued its ruling, at such a rate that Texas may execute 25 people before Christmas. Between former governor, now President George W. Bush and current Governor Rick Perry (R), Texas executed over 300 people.
One major argument against the death penalty is that there would be no way to make good the damage if someone is accidentally (or deliberately) executed for a crime he or she did not commit. Death penalty proponents falsely claim that no such cases have ever been brought to light and that today DNA tests can serve as a safeguard against such an eventuality.
But DNA tests are relevant in only a minority of death penalty cases. For them to be applicable there has to have been direct physical contact with the murderer and the victim (as in a rape-murder, strangling etc). Such tests do not help when a murder was carried out by gunshot from a distance, for example.
Furthermore, the Center for Wrongful Convictions and Northwestern University in Evanston, Illinois, provides a long list of individuals in recent US history who have been exonerated after being convicted by mistake or, all too often, police and prosecutorial misconduct (www.law.northwestern.edu/wrongfulconvictions). These include a number of people rescued from death row at the last minute.
Two days after the Supreme Court decision, yet another Illinois prisoner, Alton Logan, was released after 26 years in prison for a crime committed by another. Alton Logan was convicted in spite of the fact that another man had admitted to his own attorneys that he had committed the crime; the attorneys did not reveal this to anyone because they believed that their rules of professional ethics precluded such a breach of lawyer-client confidentiality. But at least Logan was not sentenced to death and executed.
U.S. public opinion still supports the death penalty by a margin of about 64% pro-execution and 29% against, though this is a decrease from 80% support during the 1990s. It is hoped that Stevens’ ringing declaration and the publicity about the cruelty of lethal injection will help to change this.
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