The Supreme Court audio of the
oral argument in the Kentucky lethal injection protocol case was broadcast on C-SPAN tonight and is also found on its website. See
here for links to both. Why not have each audio available for download, with some more broadcast on C-SPAN? A few federal appellate cases provided videotape for C-SPAN, but fine, I'll take audio. Selectively picking out a few cases -- and most cases are not at all interesting to general public like this one -- is misleading and inequitable overall. In for a penny, in for a pound, right?
Audio adds flavor to the dry transcript (it's good they label the justices now) and provides further insights into the justices, and personalizes the proceedings. And, that matters, even if some justices rather not admit to the fact. Some people are more willing and able to listen and understand audio than read the transcript as well. In the comments of the analysis of the oral argument by someone able to be there, an additional concern is offered -- at various points, there were notable errors in the transcript. This btw is sometimes an issue in closed captioning as well.
* As to the actual oral argument, it was fairly interesting. The overall concern here is that there is a three drug cocktail that is given which leads to two concerns: the protocol itself and the way it has been carried out. The breadth of the ruling will be
very significant:
Stevens began by asking Englert whether the constitutionality of the three-drug protocol itself it at issue in this case “or merely the question whether Kentucky has done an adequate job of using that protocol?” Only the latter, the lawyer replied. On that point, Stevens then said, “the record is very persuasive in your favor.” But then Stevens moved to what he was most concerned about: the use of the second drug in the protocol, the paralyzing drug pancuronium. “Do we have to wait for another case to decide that rule?” he asked. “I am terribly troubled by the fact that the second drug is what seems to cause all the risk of excruciating pain, and seems to be almost totally unnecessary in terms of any rational basis for requirement.”
The defense basically offered the idea that the best path would be a
one drug protocol involving just barbiturates, though Justice Breyer raised the concern that there is some evidence that this does not work. Also, basically, since the lower court did not think it necessary and/or it was not really supplied in the factual hearing, the safety of the various options was not really supplied -- thus, the state repeatedly warned that questions of that sort were really outside the record. This leads to some, including some who oppose the death penalty as a whole, to cynically think this is just a delaying mechanism:
That got him [representative of the federal government] into trouble with Justice Scalia. If comparative analysis of various execution methods is undertaken, Scalia said sharply, “this never ends. If that’s part of the analysis, there will always be some claim that there is some new method devised and once again executions are stayed throughout the country.”
This slippery slope argument only takes you so far, since there always will be a claim -- on both sides -- that some method or procedure is okay or not okay, some attempt to get the camel's nose into the tent, so to speak. It is the nature of the game, to be honest. So, the courts have to draw lines. Surely, however, when dealing with the death penalty, at least one full review of this method of execution is legitimate. I think it useful to require the high court (and indirectly the rest of us) to periodically be reminded of the messy nature of execution as a general matter, but it is specifically important that there is at least one review of key issues as well. And, honestly, there is no clear rule as to
means of execution, surely not of lethal injection in particular.
Scalia and Alito implied that the defense would argue
no means of execution over the years would be constitutional. First, precedent and the defense did not say that; the concern was unnecessary and lingering death. [Sure enough, btw, that the probably core concern here was delaying execution. But, there is an additional concern that the death is as humane as possible, sometimes leading prisoners to want to be "volunteers" and rush things along. Overall, no matter why the case is brought, there is a general public interest in ensuring constitutional means of punishment. Or, the best we can get.]
Now, there is a reasonable argument to be made that made used were not -- the Supremes were going to examine execution until Florida replaced it with lethal injection -- but it also is true that over time society constantly tinkered with the means of punishment. Like the Catholic Church once noted as to the death penalty possibly necessary in past ages, it is quite reasonable to argue that a means of punishment is no longer constitutional (or "necessary" ... and as
McCulloch v. Maryland showed, the word has multiple meanings) because other means are now possible. Or, that some measure
over time was deemed cruel and unusual. History, for example, colored the legitimacy of hanging and the
lethal gas.
Since even Stevens thinks the protocol is probably being applied legitimately, the key issue then becomes if the protocol itself is legitimate. Souter, with some passion, thought it proper to decide that question now, instead of just waiting another eighteen months or so (unsaid, but notably, possibly with some people executed via protocols whose legitimacy is still an open question) for a clearer case that specifically raises that question. The Supremes these days like narrow questions, but besides punting messy questions to mostly out of the limelight lower courts (with judges more easier confirmed), this is a somewhat dubious technique in some cases.
A one drug protocol might not work, I don't know, but the necessity of the second drug is unclear here. The state was repeatedly asked why the second drug was used. One, there was no problem with the technique, since the safety mechanisms made it constitutional and safe overall. Second, dignity for the inmate and those viewing the proceedings. The specter of a dignity claim was raised if the Court requires the second drug not be used, though it seems questionable if the state would be forced to use a method (for argument's sake) with a risk of excruciating pain because the alternative would be somewhat undignified. That is, if the inmate actually wanted the drug omitted, s/he would be forced to take the risk.
[The procedure raises
various problems, not limited to this case, and the idea it is the best (for want of a better term) technique is open to debate. The citation of "dignity" might make it the best for this day and age. FWIW.]
I know of not one case where a violation of
dignity alone was deemed a cruel and unusual punishment, particularly if it replaced a painful alternative. There is some argument that shaming punishments, like needing to say you had sex with a prostitute or did some minor crime, could be cruel and unusual on dignity grounds. This is a pretty different context as compared to replacing a shaming punishment with a fine or short jail sentence. Dignity can also be violated in various contexts, like forced nudity or the like. Again, there seems to be a difference of degree here as compared to the indignity of shaking as you die, when the alternative might be being paralyzed and in deep pain.
Now, it would be different if there was no risk. Or, if the second drug aided in the painless death, which was sort of suggested as an additional reason. The state argued that an alternative method might prolong death to up to a half hour, but it was not really suggested that it would be a painful half hour. I guess it might be in some fashion, including wanting to get it over with. (Would the person be conscious? Again, there is the factual hearing problem.) But, and the practice with animals underlines the point (why did state law not allow the second drug for animals? [per the oral argument, at least] basically, and this was rather unsatisfying, because it does), there does appear to be a significant risk. Or, more broadly, some question of one.
Some have argued that the protocols were originally set forth in a haphazard way. I'm open to the argument that they are carried out with some degree of care, but questions still remain, and it seems to me that a careful hearing -- in all branches of government -- is required to ensure the protocols are legitimate. Due process alone requires this. The problems as a whole reflect the problems with the "
delusion" of "tinkering with the machinery of death," but society seems to still want to so tinker. Fine. It requires continual tinkering and this case is but the most recent example. Scalia might not like the delay.
[Here is
one take, which seems to support lower court review and the need of state correction, if not action at the top. OTOH, in some cases,
specific abuses might so warrant. This seems a fair assessment in some ways, especially if we agree that at the very least, lower court review is necessary to safeguard this practice. I find some of the analysis a bit dubious, just to reaffirm I don't agree with all of it.]
Tough. Anyway, glad I was able to listen to the oral arguments. Several other interesting cases raising important issues will occur this term for which this option, at least for the time being (
Oyez.com eventually has most cases), will not be available. This is both silly and arbitrary. But, such is the courts often enough, huh?
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* Sen. Specter, though he confuses things by raising federalist cases where the Supremes struck down various federal legislation,
sponsored legislation to require the Supremes to make cameras available. Audio alone is even less problematic. Since you can eventually listen on Oyez.com, it is really unclear why more immediate and widespread (on its website and/or C-SPAN) download for more cases is not just plain common sense.
Some raise Article III problems with such proposals, but I think it equally plausible to argue there is constitutional reasons to require it ... comparable to the constitutional requirement of open trials, the importance of the Supreme Court and the fewer practical problems (safety, privacy, etc.) for such an appellate court factoring into the equation. Also, selective audio seems to have its own potential constitutional problems, if only in a symbolic constitutional values sort of way.
[This
case raises First, Sixth, Ninth (see FN 15 and surrounding text) and Fourteenth Amendment concerns. Justice Stevens clearly notes: "Today ... the Court unequivocally holds that an arbitrary interference with access to important information is an abridgment of the freedoms of speech and of the press protected by the First Amendment."]
