Capital Punishment ... and the Courts

Rick often says that although he opposes capital punishment, he wants the legislatures, guided by true morality--not the courts, guided by their understanding of constitutionality--to abolish it.  Well, I thought of Rick's position this morning when I read this piece in the NYTimes.

NYT, 1.3.08

 States Hesitate to Lead Change on Executions
By ADAM LIPTAK

When a state panel recommended last April that Tennessee abandon the three chemicals used in executions across the nation in favor of the single drug usually used in animal euthanasia, the state’s corrections commissioner said no.

Though the move would have simplified executions and eliminated the possibility of excruciating pain, the commissioner, George Little, said Tennessee should not be “out at the forefront” of a decision with “political ramifications,” according to recently disclosed evidence in a death row inmate’s lawsuit.

Mr. Little’s decision helps illuminate one of the questions lurking behind the year’s most eagerly anticipated death penalty case: Why have states so doggedly and uniformly clung to an execution method with the potential to inflict intense pain when a simpler one is readily available?

When the Supreme Court hears arguments on Monday in Baze v. Rees, the Kentucky case that has led to a de facto national moratorium on executions, it will mostly be concerned with the question of what standard courts must use to assess the constitutionality of execution methods under the Eighth Amendment, which bars cruel and unusual punishment.

But beyond that is the more practical question of why all 36 states that use lethal injections to execute condemned inmates are wedded to a cumbersome combination of three chemicals.

The answer, experts say, seems to be that no state wants to make the first move. Having proceeded in lock step to adopt the current method, which was chosen in part because it differed from the one used on animals and masked the involuntary movements associated with death, state governments would prefer that someone else, possibly the courts, change the formula first.

“The departments of correction are dug in,” said Deborah W. Denno, an authority on methods of execution at the Fordham University Law School. “There’s safety in numbers. But if one state breaks from that, the safety in numbers starts to crumble.”

“If you change,” Professor Denno continued, “you’re admitting there was something wrong with the prior method. All those people you were executing, you could have been doing it in a better, more humane way.”

[To read the rest, click here.]