As noted before, a few justices were irritated over the lethal injection challenge, seeing it basically a result of the bad faith of the abolitionists. Alito opened things up with asking why the state was not using sodium thiopental with the defense attorney not quite sure where he was going. He then was blunt:
At best, as suggested here, it goes to the good faith of the states if shortages, not lack of coarseness alone. States rather not use this particular drug apparently. But, as Justice Sotomayor noted, there are alternatives -- like the firing squad or nitrogen gas. She determined that they weren't used (as a few do as back-ups at least) "because it offends them to look at them." The firing squad seems less civilized, maybe also it is a matter of the direct nature of killing. And, it is quite possible that something might be deemed "cruel and unusual" or otherwise uncivilized not merely because of pain. An extremely excessive punishment or one very undignified (e.g., stocks) might count too.*
In Baze v. Rees, Roberts in the plurality opinion argued that we can mostly trust the legislative process to decide for themselves here. "The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection." It is unclear if the firing squad was not as good as the electric chair or gassing (the old type, not nitrogen). But, trusting non-court means here would include private action that lead to the shortages, right? And, the opinion does provide some limits.
And, per Scalia's comments about how the Supreme Court upheld various means, the question simply was not really fully addressed that much. A case a few years back that might have addressed the electric chair was mooted by the state doing away with it. Other than a case in the 1940s that 5-4 accepted trying again after the first attempt to electrocute failed, when did it ever fully directly address the issue of method other than 150 years ago when the firing squad was accepted as not cruel and unusual? I don't even think the Supreme Court itself as compared to lower courts directly held that physical punishments like the lash was unconstitutional in this day and age. It did treat school corporal punishment as not an 8A issue. Baze itself was therefore a seminal case ala Heller.
The case that clearly deeply affected the liberals -- Kagan's concern was apparent even without her being as prosecutorial about it as Sotomayor -- but a 5-4 loss is likely. It boils down to overturning a district court finding, which very well might be warranted, but leaves an opening to have a "neutral" reason to rule against the defendants. An opinion by Kennedy or Roberts is possible with the concurrence adding more spleen. A strong dissent (or dissents) are also likely. And, the issue probably will not go away, including with attempts to limit access to information about the production of the drugs and use of different rules than normal there.
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* Kagan flagged that if the drug at issue didn't work, it could be akin to being burned at the stake. Alito set up a hypo where somehow that can be done painlessly. Kagan didn't find it that relevant -- the issue here was not like some burning at the stake where the person was totally medicated so could not feel anything (the psychological effects would suggest this would require total medication). But, Alito's surprise that any burning at the stake can be constitutional suggests the problem there is not merely pain. Rightly so on some level, pain alone not being the test here.
I mean, let's be honest about what's going on here. Executions could be carried out painlessly. There are many jurisdictions there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide, and I assume that those are carried out with little, if any, pain. Oklahoma and other States could carry out executions painlessly.Scalia also blamed "abolitionists" for making safer drugs unavailable and felt that should be "relevant" to the justices deciding if these particular drugs were an issue. It is not as if the defendants themselves kept the drugs from the states -- they are not exactly to blame for European suppliers being pressured by anti-death penalty groups. Kennedy annoyingly wanted to know the answer to the question. Why should it? And, if so, how much, if there is some significant chance that the drug used causes something akin to burning alive? Is there a exception to the pain limit in that case? Breyer didn't think so -- it wasn't "better that than no executions" though such a complete abolition result was not what the defendants here want to come out and say is a fine result. Need to be a bit more cagey than that.
Now, this Court has held that the death penalty is constitutional. It’s controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They’re free to ask this Court to overrule the death penalty.
But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain? And so the States are reduced to using drugs like this one which give rise to disputes about whether, in fact, every possibility of pain is eliminated.
At best, as suggested here, it goes to the good faith of the states if shortages, not lack of coarseness alone. States rather not use this particular drug apparently. But, as Justice Sotomayor noted, there are alternatives -- like the firing squad or nitrogen gas. She determined that they weren't used (as a few do as back-ups at least) "because it offends them to look at them." The firing squad seems less civilized, maybe also it is a matter of the direct nature of killing. And, it is quite possible that something might be deemed "cruel and unusual" or otherwise uncivilized not merely because of pain. An extremely excessive punishment or one very undignified (e.g., stocks) might count too.*
The Court's decision appears to be based on a fear that the acceptance of McCleskey's claim would sound the death knell for capital punishment in Georgia. If society were indeed forced to choose between a racially discriminatory death penalty (one that provides heightened protection against murder "for whites only") and no death penalty at all, the choice mandated by the Constitution would be plain. Eddings v. Oklahoma, supra. But the Court's fear is unfounded.Since other states do get the drugs, it is unclear to me that eventually an adequate source will be found. Why cannot states even have state run companies to produce the drug? A question was posed on the painful nature of the alternatives. Nitrogen gas is untested as a means of execution though its lethal qualities have been studied some. Some -- including those wary of the death penalty (and/or worried about the negative effects to the medical profession) -- have argued all things considered that the firing squad might be better. There was a question on the pain involved -- executions need not be pain-free. It is a question of degree. Finally, if the drug here (and there was a passionate debate over facts, including Sotomayor serving as a sort of prosecutor, one who bluntly basically called the states unreliable liars) did not meet the threshold, should shortages give the state some sort of free pass to use something that might be akin to burning a person alive if it does not work appropriately?
In Baze v. Rees, Roberts in the plurality opinion argued that we can mostly trust the legislative process to decide for themselves here. "The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection." It is unclear if the firing squad was not as good as the electric chair or gassing (the old type, not nitrogen). But, trusting non-court means here would include private action that lead to the shortages, right? And, the opinion does provide some limits.
And, per Scalia's comments about how the Supreme Court upheld various means, the question simply was not really fully addressed that much. A case a few years back that might have addressed the electric chair was mooted by the state doing away with it. Other than a case in the 1940s that 5-4 accepted trying again after the first attempt to electrocute failed, when did it ever fully directly address the issue of method other than 150 years ago when the firing squad was accepted as not cruel and unusual? I don't even think the Supreme Court itself as compared to lower courts directly held that physical punishments like the lash was unconstitutional in this day and age. It did treat school corporal punishment as not an 8A issue. Baze itself was therefore a seminal case ala Heller.
The case that clearly deeply affected the liberals -- Kagan's concern was apparent even without her being as prosecutorial about it as Sotomayor -- but a 5-4 loss is likely. It boils down to overturning a district court finding, which very well might be warranted, but leaves an opening to have a "neutral" reason to rule against the defendants. An opinion by Kennedy or Roberts is possible with the concurrence adding more spleen. A strong dissent (or dissents) are also likely. And, the issue probably will not go away, including with attempts to limit access to information about the production of the drugs and use of different rules than normal there.
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* Kagan flagged that if the drug at issue didn't work, it could be akin to being burned at the stake. Alito set up a hypo where somehow that can be done painlessly. Kagan didn't find it that relevant -- the issue here was not like some burning at the stake where the person was totally medicated so could not feel anything (the psychological effects would suggest this would require total medication). But, Alito's surprise that any burning at the stake can be constitutional suggests the problem there is not merely pain. Rightly so on some level, pain alone not being the test here.
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