Well, today is the day for oral arguments on one of this year's big cases.

The Supreme Court, in a case being watched around the world, on Monday hears arguments about whether to ban the lethal three-drug cocktail used in most U.S. executions because it inflicts excruciating pain.

The hour-long session marks the first time in more than a century the court has examined a specific method of capital punishment. It comes at a time when the death penalty itself appears to be in retreat in one of the few democracies that still practices it.

Arguments will focus on whether the commonly used lethal injection method violates the constitutional ban on cruel and unusual punishment, but the case has also prompted a wider debate about capital punishment.

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The court's ruling, expected by the end of June, could decide if the current lethal drug combination is constitutional or whether states have to come up with alternatives that pose less risk of pain and suffering.

Now it is beyond question that the death penalty is constitutional, as I pointed out the other day in the context of a different case.

And since the Fifth Amendment clearly contemplates and authorizes the use of the death penalty in its provisions related to capital crimes, putting persons in jeopardy of life and requiring due process for the deprivation of life, any ban on executions for non-homicides would be on tenuous constitutional grounds.

The issue, then, is how much pain the criminal is permitted to feel as justice is rendered. And at least two of our major newspapers have made it quite clear that they want the court to impose a standard so high that it would amount to a de facto declaration of unconstitutionality for ANY method of execution.

The New York Times, of course, admits that the clear language of the Constitution authorizing executions does not interfere with its judgment on the issue of the death penalty's constitutionality.

We believe that the death penalty, no matter how it is administered, is unconstitutional and wrong. If a state does execute anyone, it must do so in a way that is humane and does not impose needless suffering. KentuckyÂ’s method does not meet that standard.

The problem, of course, is that this ignores the fact that lethal injection is humane, and that the Constitution does not mandate that criminals not feel any anguish or experience any pain or suffering while justice is delivered. That is true whether or not we are talking about a stint in the county jail or the imposition of the ultimate sanction. the requirement is that the penalty not be "cruel AND unusual" -- and the Supreme Court has said that this means that the method of executions hould not shock the conscience. Frankly, I don't think that your average American (2/3 of whom support the death penalty) is shocked by the notion of a criminal feeling some pain or anguish during execution -- indeed, that they feel some small measure of what they inflicted upon their victims appears to be an appropriate part of the sentence..

But another major newspaper goes even farther in its position on this case. Here are the words of the editorial staff of the Washington Post.

But if capital punishment is to be carried out, it should be done as humanely as possible by a method that causes no pain. Evidence submitted in the Supreme Court case suggests that the current protocol for administering lethal injection cannot meet this standard.

That is, of course, a standard that cannot be met. The inserting of the IV needle itself would constitute cruel and unusual punishment under standard the Washington Post seeks -- never mind that it is performed tens of thousands of times daily in medical facilities around the country.

Now one can argue the efficacy and the desirability of the death penalty. That is, however, a policy question, and one properly left to the states and to Congress. But to cloak abolition of the death penalty in the guise of making it more humane is a constitutional parlour trick that the Supreme Court should reject.

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Posted by: Greg at 11:06 PM | Comments (1) | Add Comment
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