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November 13, 2007

Effective reflections on political realities of execution protocols

Showcasing her talents for great titles and insightful analysis, Dahlia Lithwick has this new essay at Slate entitled, "Die Hardest: Why the states are standing by their outdated, messy lethal-injection protocols."  (Of course, I'm biased because Ms. Lithwick is always nice to the blog.) Here are excerpts:

If academics, doctors, and prisoners — as well as death-penalty supporters and the guy who invented the protocol — have been criticizing the three-drug protocol for years, why haven't the states switched methods? And once the court agreed to hear Baze, why didn't Texas simply change to barbiturates and keep its executions on schedule? You'd expect the states to choose doling out the barbiturates instead of acceding to a monthslong moratorium that will offer the public a chance to see that life without the death penalty may still be worth living.

The reason the states haven't acted is one part strategic and one part inertia. ... As Richard Dieter at the Death Penalty Information Center points out, once the Supreme Court granted certiorari in Baze, the states were forced to defend their protocols en masse, even if they knew them to be flawed.  If even one state were to change its procedure now, prisoners in the other states would have a constitutional claim. It's a form of — pardon the pun — prisoner's dilemma; the states backed their way into a rotten system, and now they must insist that it's the greatest, most constitutional system around.

But Dieter points to another, more important reason states aren't racing to embrace new execution methods: "The pitched battle over the death penalty is not a rational one," he says.  States that allow capital punishment don't really want to kill a lot more people a lot more efficiently.  They want to execute some people, sometimes, and the lethal-injection system — while flawed in substantive ways —was a political solution to a political problem.

The politics of the fight over capital punishment may also explain why, as professor Doug Berman pointed out, the Bush Justice Department seemed to be secretly accepting a moratorium on lethal injections even before the high court agreed to hear Baze. Berman's best hypothesis at the time? "Most folks on both sides of the debate seem to care a lot more about death sentences than they care about whether those sentences result in actual executions."

November 13, 2007 at 08:29 AM | Permalink


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That's one way of looking at the situation, I suppose. Another is that any change in the current protocols would be challenged too. Death-penalty opponents don't care about pain and suffering. They care about eliminating the death penalty altogether. Any protocol is cruel and unusual. Additionally, one valuable defense against these challenges has been unnecessary delay, i.e., "why didn't you being this up years ago when you knew about it the whole time?" If the protocols are changed, inmates can claim they didn't know about the new protocol and can begin challenging them anew. Which, of course, they will.

Posted by: | Nov 13, 2007 10:18:17 AM

>>They care about eliminating the death penalty altogether.

This is a pretty wide brush. If you want to try and attribute an unstated motive to every legal action, we could easily conclude that every prosecution in the country is part of some racist plot, as a disproportionate number of black people are languishing in jail.

Now, of course there are racist prosecutors. But that doesn’t mean that every legal argument made by a prosecutor is part of some effort to incarcerate all the black people.

Posted by: S.cotus | Nov 13, 2007 1:17:35 PM

Fair point, S.cotus, though do you know of any vocal death penalty support who is troubled greatly by lethal injection protocols?

Posted by: Doug B. | Nov 13, 2007 2:07:09 PM

I don't really follow the political literature, but the brief you posted from Anesthesia Awareness Campaign seems to fit this description.

I have no doubt that there are classist and racist prosecutors. (Probably more classist these days than racist, but I know some racist ones). But, so far, nobody really succeeds in questioning their motives. But, no defendant has been able to get a Judgment of Acquittal by saying, "Your honor, any legal argument the prosecutor makes is invalid because their real goal is to oppress the lower classes." Instead, we need to isolate the legal arguments and look at them separate and apart from who wrote them.

Posted by: S.cotus | Nov 14, 2007 7:43:00 AM

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