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HUMAN RIGHTS FOR EACH PERSON REGARDLESS OF AGE, RACE, RELIGION OR POLITICS
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US Supreme Court Dances with the Thought of Killing Capital Punishment
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Last week's decision of the United States Supreme Court to uphold, by a 7-2 majority, the State of Kentucky's three drug cocktail lethal injection protocol has been reported in some quarters as a green light for executions. While the case has caused a moratorium on executions that has lasted since last September to come to an end in some States, its long term significance may be more associated with strengthening the movement to render all executions in the United States in breach of the Eighth Amendment and, thereby, unconstitutional.
At issue in the case was the question whether using a three drug cocktail without safeguards to ensure the unconsciousness of the prisoner from the administration of the first drug, sodium thiopental, created such a risk of a painful death as to amount to a cruel and unusual punishment. The medical evidence in the case indicated that, if sodium thiopental did not produce a sufficient level of unconsciousness, the second drug, pancuronium bromide (used to produce paralysis) and the third drug, potassium chloride (intended to stop the heart) would produce excruciating pain in circumstances where witnesses to the execution would be completely unaware of this occurring and the paralysed prisoner would be unable to communicate his or her circumstances.
Although the majority in favour of not disturbing Kentucky's protocol was 7-2, these numbers hide an important sub-text of the decision. The lead judgment was written by Chief Justice John Roberts, a George Bush appointee and considered part of the more conservative wing, and was joined in by two other judges, Justices Anthony Kennedy and Samuel Alito. The judgment is framed against the assumption based on past decisions that capital punishment is constitutional and does not stray outside consideration of the precise question before the Court. The key conclusion is expressed in the following terms:
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"… the proffered alternative must effectively address a 'substantial risk of serious harm' … To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State's refusal to change its method cab viewed as 'cruel and unusual' under the Eighth Amendment."
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Future litigation based on method of execution will treat these phrases as a key text and seek to frame argument and collect evidence, accordingly.
The key sub-text of the Court's decision lies in the concurring decision of eighty-eight year old Justice John Paul Stevens. Justice Stevens was appointed by Gerald Ford and is considered to have become more liberal during his time on the Court. Part of the majority in Gregg v Georgia 428 US 153 (1976) which affirmed the constitutionality of capital punishment (subject to a number of basic conditions) after a four year moratorium, Justice Stevens may have dropped his biggest bombshell yet for conservatives when he said:
"Full recognition of the diminishing force of the principal rationales for retaining the death penalty should lead this Court and the legislature to reexamine the question recently posed by Professor Salinas, a former Texas prosecutor and judge: 'Is it time to Kill the Death Penalty?' … The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefit it produces has surely arrived."
Lest it be thought that his interest was only in academic discussion, after setting out a number of arguments for the death penalty having lost its historic justification, Justice Stevens said:
"I have relied on my experience in reaching the conclusion that the imposition of the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernable social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.'"
In setting out his opinion on this point, Justice Stevens was citing the judgment of White J. in Furman 408 US 312, which had set the moratorium which Gregg v Georgia had brought to an end.
Conservative Justices Scalia and Thomas took up the challenge thrown out by Justice Stevens and strenuously defended the constitutionality of the death penalty and lethal injections. It is interesting to remark, however, how their arguments looked backward to the social conditions at the time that the Eighth Amendment was adopted and the advantages that lethal injection provided over burning at the stake and breaking on the wheel. Justice Stevens, by contrast, framed his arguments around the social changes since Gregg v Georgia had, in his opinion rendered its conclusions no longer appropriate.
Lest it be thought that Justice Stevens is an old man singing in the wilderness, Justice Alito (who signed the lead judgment and delivered a separate opinion) stated at the end of his reasons (without indicating his own views):
"The issue presented in this case - the constitutionality of a method of execution - should be kept separate from the controversial issue of the death penalty itself. If the Court wishes to reexamine the latter issue, it should do so directly, as Justice Stevens now suggests. … The Court should not produce a de facto method-of-execution rules that lead to litigation gridlock."
Justice Breyer (who also signed the lead judgment) concluded his separate opinion stating:
"The death penalty itself, of course, brings with it serious risks, … These risks in part explain why that penalty is so controversial. But the lawfulness of the penalty is not before us."
It should also be remembered that Justices Ruth Bader Ginsburg and David Souter, who were prepared uphold the appeal in the present case, are considered liberals within the Court as is Justice Anthony Kennedy who simply signed the lead judgment in the present case. For example, Justices Kennedy, Stevens, Souter, Ginsburg, and Breyer constituted the majority in the 2005 case of Roper v Simmons 543 US 551 (2005) which held that it was unconstitutional to execute offenders who had been children (under 18) at the time of their offence.
Opponents of the death penalty in the United States will be heartened by the detail of Baze v Kentucky, despite their disappointment with the immediate result. Those who act for death row inmates will be encouraged to include issues more fundamental than method of execution in future appeals.
Stephen Keim
20 April 2008
4. Justice Alito, of course, had not been appointed at that time.
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FREEDOM IS A RIGHT OF ALL HUMAN BEINGS IN A WORLD WHERE LIFE IS VALUED AND PEACE MAY FINALLY BE A POSSIBILITY
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Just in case you forgot - read the Universal declaration of Human Rights
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