Wednesday, November 22, 2006

The Death Penalty and Lethal Injection

Opponents of the death penalty are engaged in a multi-faceted attack on the practice. One aspect of their fight is an attempt to have certain methods of carrying out the death penalty declared unconstitutional as "cruel and unusual punishment." In Kentucky, a particular lethal injection method was challenged on the basis that the drug formula used "causes inmates to feel pain and is therefore cruel and unusual punishment." In a unanimous opinion, the Kentucky Supreme Court rejected the challenge. In doing so, it stated:

"It is not the role of this Court to investigate the political, moral, ethical, religious or personal views of those on each side of this issue. ... We are limited in deciding only whether the method defined by the Legislature and signed into law by the Executive, survives constitutional review," ...

The lawyers for the two men convicted say they will ask for a rehearing or will appeal to the U.S. Supreme Court.

I never know quite what to make of this kind of challenge. My assumption is that the claims are not based on a feeling that the particular death penalty method at issue is bad, but another one might be OK. Rather, it's just an attempt to get all methods declared unconstitutional. This seems a bit disingenuous, but I suppose it's a reasonable thing to do if you're on death row or if you think the death penalty should be abolished.

On the specific legal issue, I don't see how lethal injection could be considered either "cruel" or "unusual." It's certainly not cruel in comparison to the alternatives (electrocution, anyone?). And it's not unusual either.

As a result, I'm not convinced this is a productive approach for death penalty opponents. If they were to win, it would seem like they won on a technicality, and could create quite a backlash. I think their best bet is to try to undermine support for the death penalty among the populace more generally.

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