June 30
USA:
The Supreme Court Just Approved a Lethal Injection Drug that No One Understands
The conservative justices of the Supreme Court were no more gracious in victory
today than they were in defeat last week. They prevailed in Glossip v. Gross, a
case about the legality of a drug called midazolam that some states use in
lethal injections, but they still assaulted the integrity of their liberal
colleagues. Writing the majority opinion, Justice Alito attacked Justice
Sotomayor's "resort" to "outlandish rhetoric," which, he said, "reveals the
weakness of [her] legal arguments." Justice Scalia outright mocked Justice
Breyer. "His argument is full of internal contradictions and (it must be said)
gobbledy-gook," Scalia wrote, before concluding that Breyer "rejects the
Enlightenment." Justice Thomas, meanwhile, wanted to know why previous courts
found it unconstitutional to execute juveniles.
It's not surprising to see tempers flare in the 5 Glossip opinions: Death
penalty cases have a history of producing a lot of paper. And back in April,
Dahlia Lithwick described oral arguments in this particular case as "unpleasant
and embarrassing" in Slate. The actual matter before the Court in Glossip was
narrow, but the case became an occasion for the justices to express their
broader thinking on the death penalty. Justice Breyer, joined by Justice
Ginsburg, used the occasion to argue that the death penalty itself was
unconstitutional, while Scalia and Thomas lined up against them.
It fell to Justice Alito, writing the majority opinion, and Justice Sotomayor,
writing the principal dissent, to tackle Glossip's specific question: Did
midazolam pose an intolerable risk of painful execution? The drug came into use
in death penalty states after a shortage in the drugs conventionally used in
lethal injection. Doctors rarely use midazolam, though, to anesthetize their
patients, and the Glossip plaintiffs argued that it was not powerful enough to
protect them from feeling the painful effects of the other lethal injection
drugs.
Alito rejected their arguments for 2 reasons. First, he said they failed to
establish a safer and available alternative to an execution with midazolam - a
requirement that Sotomayor denounced as "patently absurd." Second, he affirmed
the lower courts ruling that midazolam did not pose an intolerable risk of pain
and suffering in an execution. The district court had drawn this conclusion by
weighing the testimony of a single expert witness, a doctor of pharmacy who
said midazolam would work, against 2 expert witnesses who said it would not.
Essentially, the district court decided the legality of midazolam based on the
testimony of just 3 witnesses, and the Supreme Court saw nothing troubling with
this fact. The most prudent course of action, I thought after having witnessed
oral arguments in April and having written about the use of midazolam, would
have been to remand the case to a lower court, where midazolam's properties
could be more properly investigated. Alito rejected this possibility, however,
by arguing that "courts should not 'embroil [themselves] in ongoing
controversies beyond their expertise.'"
Alito's opinion indirectly acknowledges a limitation of the Court: Execution
protocols are being written by corrections officers and attorneys general, not
by scientists or doctors. And no one really knows how midazolam works in such
large doses, because the medical and scientific communities don't spend a lot
of time studying the lethal applications of otherwise helpful drugs. The
result, as Sotomayor wrote, is that "States are engaged in what is in effect
human experimentation." In Arizona, for instance, the execution team injected
one prisoner with 15 different doses of midazolam and hydromorphone in an
execution that lasted nearly almost 2 hours.
Alito's logic might be more persuasive if the Court were, in fact, leaving
lethal injection in the hands of medical experts. Instead, his effort to frame
the Glossip decision as an act of judicial humility essentially gives state
lawyers and prison officials the green light to raid the medicine cabinet in
order to carry out death sentences. True humility would recognize that judges
are unqualified to evaluate the pharmacological properties of medical drugs -
and conclude that states should find another way to carry out their sentences.
(source: Ben Crair, The New Republic)
****************
Capital punishment and the Supreme Court----Last gasps
When Oklahoma executed Clayton Lockett by lethal injection in April 2014, the
state used an untested sedative. The drug apparently failed to bring on the
coma-like state that is meant to precede the introduction of drugs to stop his
breathing and then his heart. Lockett spent 43 minutes writhing in pain on the
gurney. "This shit is fucking with my head," he said before finally dying.
Of the 35 people who were executed in America in 2014, at least three died
grisly deaths. The problem is that states are having trouble getting the drugs
they need to ensure these deaths are painless. European companies will not sell
drugs to be used in executions, and American companies are increasingly
squeamish about having their brands linked to lethal injections. So Oklahoma
and other states have been tinkering with the 3-drug protocol, in some cases
using a drug called midazolam, which apparently botched Lockett's execution and
several others. So does using midazolam defy the Eighth Amendment ban on "cruel
and unusual punishment"? According to the Supreme Court's ruling in Glossip v
Gross today, the answer, surprisingly, is no.
The case was brought before the court by 3 prisoners on death-row in Oklahoma,
who are understandably wary of an execution cocktail that includes midazolam.
But in a 5-4 decision, the court ruled that the petitioners failed to prove
that midazolam offers a 'substantial risk of serious harm'. Citing evidence
that the sedative is effective at the right dosage, the court found that while
Lockett received too little of the stuff, the same 3-drug mix finished off 12
other prisoners "without any significant problems". Writing for the four
conservative justices and Justice Anthony Kennedy, Justice Samuel Alito added
that the doomed prisoners also "failed to identify a known and available
alternative method of execution that entails a lesser risk of pain," which is a
requirement of all Eighth Amendment execution claims.
The crux of this ruling, Justice Alito writes, is that "because it is settled
that capital punishment is constitutional", it "necessary follows" that there
must be a constitutional means of carrying it out. And "because some risk of
pain is inherent in any method of execution," the court holds "that the
Constitution does not require the avoidance of all risk of pain." If the use of
midazolam does involve pain, blame the "anti-death-penalty advocates" who have
"pressured pharmaceutical companies to refuse to supply the drugs used to carry
out death sentences." But ultimately, Justice Alito writes, the possibility of
pain is not so important. "Holding that the Eighth Amendment demands the
elimination of essentially all risk of pain would effectively outlaw the death
penalty altogether."
Is outlawing the death penalty such a bad idea? Justice Stephen Breyer doesn't
think so. In a strident 41-page dissent, he argues that the constitutionality
of the death penalty relies on "safeguards sufficient to ensure that the
penalty would be applied reliably and not arbitrarily." Yet he finds ample
evidence that the penalty is administered unreliably and arbitrarily. His
comprehensive critique includes countless examples of mistaken indictments
("innocent people have been executed") and capricious punishments
("circumstances that ought not to affect application of the death penalty, such
as race, gender, or geography, often do"). He complains that the amount of time
prisoners spend on death row - often in "especially severe, dehumanising
conditions of confinement" - is long and getting longer. In 2004 convicts spent
11 years, on average, waiting to be executed; by 2014 that time stretched to
nearly 18 years. Not only are these "unconscionably long delays" cruel, but
also they "undermine the death penalty's penological purpose".
It would be hard to find a more withering response to Justice Breyer's earnest
argument than the one written by Justice Antonin Scalia. First, and with
evident relish, he reminds the court that the petitioners are not only
sentenced criminals, but also uniquely unsavoury (one is indicted for raping
and murdering an 11-month-old baby). Then he clarifies that it is impossible to
hold the death penalty unconstitutional because the "Constitution explicitly
contemplates" it when it provides that no one shall be deprived of
"life...without due process of law." With that out of the way, Justice Scalia
takes his gloves off: "Even accepting Justice Breyer's rewriting of the Eighth
Amendment, his argument is full of internal contradictions and (it must be
said) gobbledy-gook."
The slow death of the death penalty
Like a sharp-shooter showing off for the ladies, Justice Scalia casually picks
off Justice Breyer's concerns one by one. He doesn't dispute the fact that
innocent people have been sentenced to death, but rather seems to envy their
good fortune: "any innocent defendant is infinitely better off appealing a
death sentence than a sentence of life imprisonment," he writes, as a capital
convict "will obtain endless legal assistance from the abolition lobby (and
legal favouritism from abolitionist judges), while the lifer languishes
unnoticed behind bars." What about the claim that the death penalty is meted
out arbitrarily? Blame the inevitable variability of "the jury trial, that
cornerstone of Anglo-American judicial procedure." Are prisoners spending too
long in poor conditions waiting to die? If the problem is the way prisoners are
kept, Justice Scalia quips, "the solution should be modifying the environment
rather than abolishing the death penalty". What about Justice Breyer's theory
that a desire for retribution might also be served by a life-without-parole
sentence? 'My goodness," Justice Scalia writes, "If he thinks the death penalty
not much more harsh (and hence not much more retributive), why is he so keen to
get rid of it?"
Justice Scalia is clearly enjoying himself, but he seems to overstate his case.
He defensively claims that the death penalty deters murderers, but there is
little firm evidence for this. He then closes his argument with a nod to the
wisdom of the framers of the constitution, who handled the death penalty "the
same way they handled many other controversial issues: they left it to the
People to decide". Yet he pretends not to notice that the people are
increasingly deciding to abandon the death penalty. As Justice Breyer notes,
both death sentences and executions have been falling for the past decade and a
half. Thirty states have either formally abolished the death penalty or have
not executed someone in more than 8 years. Only 3 states - Texas, Missouri and
Florida - handle 80% of all executions. But even in Texas, which kills the most
prisoners, the number fell from 40 in 2000 to ten in 2014.
More Americans now say they believe a convicted murderer should receive life
imprisonment without parole instead of the death penalty. If the court's
sanctioning of midazolam yields more stories of prisoners writhing on gurneys,
yet more Americans can be expected to view the death penalty with distaste. By
backing a method of killing that remains controversial, the court may simply
hasten the spread of Justice Breyer's view that the punishment itself may
simply be too cruel.
(source: The Economist)
*************************
Liberal justices: death penalty constitutional only for first 200 years
Supreme Court justices Stephen Breyer and Ruth Bader Ginsburg have suggested
that the death penalty may be unconstitutional, violating the Eighth Amendment.
The Eighth Amendment says that the U.S. may not impose cruel or unusual
punishments.
Now, keep in mind, the death penalty has been constitutional since our country
was formed, and no courts have had a trouble with it since. Has that been an
oversight? But now, more than 200 years later, Breyer thinks it is no longer
constitutional.
And I think he's right! If you look closely at an original copy of the
Constitution, you will see that some of the text is written in darker ink than
other text. I think the founders were trying to tell us that the text written
in slightly lighter ink was binding for only a period of time - say, 200 years
- and no more. If you look at the Eighth Amendment, you will see the "un" in
unusual written in unusually light ink, which means that the government is
prohibited from not only unusual punishments, but also, eventually, even usual
ones as well.
Additionally:
Breyer wrote that he believed it was "highly likely that the death penalty
violates the Eighth Amendment" and called for the court to address that "basic
question." He suggested that the decline of the death penalty made it an
"unusual" punishment that, for the past 40 years, has been "imposed
arbitrarily."
So what Breyer is saying is that the death penalty was formerly not cruel and
usual, but now, with the decline in executions, has become cruel and unusual.
If states speeded up the execution process, and the death penalty became more
usual, do you think Breyer would be more satisfied?
Breyer cited studies that suggested that individuals who murdered white victims
were more likely to receive the death penalty, and said that geography also
played a major role in who is put to death.
Uh-oh! We're not executing enough killers of black people! As we know, 93% of
killers of black people are black, so Breyer thinks we are doing a grave
injustice by not executing enough black killers. Could that be solved by the
Court requiring New York and California to reinstate the death penalty? Are
liberal states racist for refusing to execute killers of black people?
And what about imprisonment in general? Illegal aliens are much more likely to
be imprisoned than U.S. citizens, based on their percentage of the population
(they are 25% of the prison population). Does that make imprisonment arbitrary,
and should all prisons be emptied? Or should we arrest enough citizens
(preferably white people) on trumped up charges and jail them until the
percentages work out right?
He said that after "considering thousands of death penalty cases and
last-minute petitions" in more than 20 years on the bench, there were
"discrepancies for which I can find no rational explanations." He also said
that lengthy delays in death penalty cases, during which death row inmates are
likely kept in solitary confinement, were problematic and raised constitutional
issues.
I agree. Prisoners should be given one avenue of appeal only for all their
objections. It should be processed immediately after trial, and then they
should be executed quickly if they lose. If the Supreme Court limited appeals
and required immediate resolution, this problem would be solved.
But by the way...what do disparity in circumstances and delays in execution
have to do with the "cruel and unusual" clause of the Constitution? Unless you
see a shadow of a penumbra from this phrase that touches on prison stays and
absolute statistical distribution of executions by race, geography, and
circumstance, there is no connection.
But we know that the Constitution is a changeable thing; so how long do you
think before we have to read it in Spanish? "Nosotros, la gente..."
(source: This article was produced by NewsMachete.com, the conservative news
site----American Thinker)
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