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January 7, 2008

Some parting(?) thoughts on Baze and the lethal injection debate

Though I doubt I will be able to resist posting on the Baze case in the weeks and months ahead, I am eager to stop blogging about lethal injection litigation and to focus on all the other great (mostly non-capital) sentencing issues that now abound.  I have come to realize that this feeling results largely for my sense that the petitioners in Baze are making great policy arguments and terrible constitutional claims.

As I have said for quite some time and in various scholarly venues (see here and here and here), refining lethal injection protocols seems most properly a job for legislatures, not for courts.  To their discredit, some states have been awfully cavalier and secretive about modern lethal injection protocols.  But, as I said in this recent PENNumbra debate, even if everyone agrees as a policy matter that states should be more careful and conscientious in their execution methods, I find troubling the argument that all death penalty states, after having adopted an improved, but still perhaps imperfect execution method, now have a constitutional obligation to make their lethal injection protocols even more perfect in order to minimize any possible risk of pain to the murderer being executed.

I make this point and others with a lot words in this short podcast about the Baze oral argument that I did earlier this afternoon.  And, for anyone interested in a review of the day in Baze posts and my prior scholarly writings on lethal injection protocols, here is a recap:

January 7, 2008 at 05:45 PM | Permalink

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Comments

"still perhaps imperfect execution method, now have a constitutional obligation to make their lethal injection protocols even more perfect in order to minimize any possible risk of pain to the murderer being executed."

You're attacking a strawman. Surely there's a difference between "minimizing any possible risk of pain" and making sure, in Justice Breyer's words, that there's not a significant risk of what amounts to torture when that risk can easily be reduced. I think the latter standard makes constitutional sense.

Posted by: Confused | Jan 7, 2008 6:42:15 PM

I agree with Prof. Berman. I just can't get too excited about whether a murderer feels pain or not.

Posted by: William Jockusch | Jan 7, 2008 6:53:55 PM

A practical problem with Breyer's standard is that it does not eliminate litigation risk.

Posted by: federalist | Jan 7, 2008 7:11:04 PM

I went down to the argument this morning (and alas, got there too late for the good seats in the S.Ct. bar courtroom section so had to listen in the lounge -- I heard the courtroom seats got grabbed by various state AG types with an interest in the case). Anyway, leaving aside the points that others seem to be making about the focus on the inadequate factual record and the worries about continuing litigation (Scalia got so exasperated that he ended up taking the ASG by the hand and walking him away from his proposed constitutional standard, which retained some role for comparison with other available, less painful alternatives), I thought the most striking note about the argument was Kentucky's (and C.J. Roberts's) reliance on "dignity" as a justification for the use of the second drug (pancuronium bromide). The state more or less conceded that the only (or at best primary) purpose of pancuronium, which is the paralytic and source of the worst pain if the administration of the other drugs goes bad, is to save the observers and executioners from the potentially excruciating sight of the defendant's dying gasps and paroxysms -- i.e., it neither kills nor makes the drugs that kill less painful, but only increases the risk of pain. Both Kentucky's lawyer and the C.J. cited preservation of the defendant's "dignity" as the state's justification for its use -- a fairly amazing, not to say perverse, use of this concept, which, for example, formed the keystone of Justice Brennan's concurrence in Furman and dissent in Gregg. I found this quite striking -- dignity as the priority of an effect on others' sensibilities over excruciating pain to one's own self. Brennan is rolling over in his grave.

Posted by: Adam Thurschwell | Jan 7, 2008 8:24:06 PM

I found the most interesting part of the Baze arguments to be what appeared to have been a slip of the tongue, I think by Justice Kennedy. That slip of the tongue (keyboard) has been repeated in this post. In being a little incredulous about whether we really ought to have a lot of sympathy for whether a murderer feels pain when being executed, its interesting that everyone is innocently assuming that only murderers get the death penalty, especially in light of the recent debate over whether non-murder felonies should qualify for the death penalty.

Posted by: Anonymous | Jan 8, 2008 9:34:34 AM

In being a little incredulous about whether we really ought to have a lot of sympathy for whether a murderer feels pain when being executed, its interesting that everyone is innocently assuming that only murderers get the death penalty, especially in light of the recent debate over whether non-murder felonies should qualify for the death penalty.

Fine, I also wonder whether we really ought to have a lot of sympathy for whether a child feels pain when being executed.

Posted by: | Jan 8, 2008 11:49:03 AM

child rapist, not child

Posted by: | Jan 8, 2008 11:49:51 AM

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