Legal Commentary

Supreme Court Affirms Kentucky's Lethal Injection Protocol

By TChris

The good news is that every member of the Supreme Court agrees that disemboweling, beheading, drawing and quartering, dissecting, and burning alive all violate the Eighth Amendment's prohibition of cruel and unusual punishment. The bad news is that seven justices in a maze of opinions (the lead opinion, written by Chief Justice Roberts, is joined only by Justices Kennedy and Alito) agree that Kentucky's lethal injection protocol is not cruel and unusual, at least on the record that was made in the Kentucky case.

The decision and the multiple opinions it generated may or may not end the de facto moratorium on death penalty implementation, but it will only fuel the growing debate about the wisdom of death as punishment for a crime. Consider, for instance, the concluding remarks in Justice Breyer's opinion concurring in the result:

The death penalty itself, of course, brings with it serious risks, for example, risks of executing the wrong person, ... risks that unwarranted animus (in respect, e.g., to the race of victims), may play a role, ... risks that those convicted will find themselves on death row for many years, perhaps decades, to come, .... These risks in part explain why that penalty is so controversial. But the lawfulness of the death penalty is not before us.

Is Justice Breyer inviting fresh challenges to the death penalty on some or all of these grounds?

Justice Stevens is equally concerned that the Kentucky decision "will generate debate not only about the constitutionality of the three-drug protocol ... but also about the justification for the death penalty itself." Let's hope it does.

Full post as published by TalkLeft on April 16, 2008 (boomark / email).