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Wednesday, May 20, 2015

Surreality at SCOTUS

Just to be clear, I think the death penalty is wrong, both from a pragmatic and moral position. The government should not be allowed to do what is forbidden to its citizens. So I was very interested in listening to the oral arguments of Glossip v Gross. It was unsettling to listen to the justices and advocates discuss the intricacies of methods in which states kill people.  The case in question involved the use by Oklahoma of Midazolam, a drug which is supposed to induce unconsciousness so that the victim won't feel effects of the other drugs that actually kill him (almost never a her, only 1.8% of prisoners on death row are female.)  Apparently, the drug that actually kills, creates the sensation of being burned alive, from the inside, hence the Midazolam.  That choice is under review following evidence it doesn't work the way it's supposed to.  The drug of choice that had previously been used is difficult to obtain since the manufacturers are in countries that forbid its use for executions.  Justice Alito asked a sobering question, noting that several states permit assisted suicide and there seems to be a painless protocol for that so why can't someone figure out a method that's similar.

So the justices found themselves in the unenviable position of having to ask what alternatives might be available should they rule Midalzolam, whose efficacy was in question, as unconstitutional under the 8th Amendment. That amendment prohibits the "infliction" of "cruel and unusual punishments."  Now, for my money, the scheme in Oklahoma and several other states certainly qualifies as "unusual."  But the Constitution, being typically vague, provides little assistance. Those attorneys seeking to make capital punishment harder to administer (as Justice Alito rightly noted this case was simply a backdoor attempt at eliminating capital punishment) were faced with questions from the justices demanding to know what alternatives they might suggest should the Oklahoma protocol be invalidated. Shooting? Hanging? (Both of these eliminated because of the negative effects on the bystanders.)  Back to the electric chair? (The gas chamber has been eliminated most everywhere thanks to its association with the Nazi gas chambers. "The prison warden [in Arizona in 1992]  stated that he would quit if required to conduct another gas chamber execution [after having watched the length of time it took the prisoner to die.])* The search for a "humane" (euphemism for one that doesn't have a negative effect on the bystanders!) continues and the court is caught in the middle.

They should have let Furman v Georgia stand and saved themselves a lot of trouble.


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