The U.S. Supreme Court yesterday began hearing a case brought by death row inmates who contend that lethal injection is cruel and unusual punishment – a violation of the Eighth Amendment to the Constitution. The condemned men assert that the injection can cause unnecessary pain and suffering if improperly administered.

It is important to state at the outset of this column what the case is NOT about. It is not about whether the death penalty should be abolished, although all executions have been put on hold since last September, pending the decision of the court. It is specifically about whether the three-chemical compound used to end the inmate’s life can cause a painful death. In discussing this specific point, it became clear that at least four of the judges are skeptical about whether better methods are available. Some also questioned the actual intent in bringing the case before the court.

Chief Justice John Roberts said if the chemicals are administered properly, the condemned should die peacefully. Justice Antonin Scalia implied that the case was a smokescreen by lawyers who want to stop executions. The current case stems from Kentucky inmates who contend that the three-chemical cocktail causes “an unnecessary risk of pain,” and therefore should be ruled unconstitutional. They also point out that Kentucky has ruled out the same chemical compound is illegal to use in putting animals to death. Veterinarians in that state usual use a single ingredient barbiturate on animals such as horses.

The opening arguments in the case were presented by Donald Verrilli, representing death row inmate Ralph Baze, convicted of killing a sheriff and deputy sheriff as they attempted to serve him a warrant. Verrilli cited several bungled executions that reportedly caused the condemned person unnecessary pain. It is worth noting that Verrilli did not advocate elimination of the death penalty, but rather that a “huge dose of barbiturates” be used, causing the prisoner “to feel no pain, since he will simply be asleep and can be sent to a peaceful death.”

Students at the University of Illinois in their college paper, The Daily Illini, had a different take on the condemned person’s pain and suffering. “Our argument is that the victim of the death row inmate was probably subject to a worse fate. Nobody is put on death row for shoplifting. It takes particularly gruesome, violent murders to be sentenced to death. As for cruel and unusual punishment, what about the unprovoked deaths of the inmate’s victims?”

The paper went on to note that lethal injection is the most humane method available and is a vast improvement over prior punishments, such as hanging and the electric chair. “Once tried and convicted of a felony,” the paper concluded, “you have given up the right to live how you want. It also means that if you are sentenced to death, you’ve given up the right to die how you want. Not ironically, it’s the same right that murderers took away from their victims.” In the current Supreme Court case, Justice Scalia questioned attorney Verrilli about the argument that the state must use the least painful methods of execution: “We have approved electrocution. We have approved death by firing squad. I expect both of these have more possibilities of painful death than the protocol here. But where is it written that the state must choose the least painful method? Is that somewhere in the Constitution?”

An editorial in the North County Gazette (New York State) wondered why lethal injection is cruel, but death by dehydration over a 13-day period is not. The editorial was referring to Terri Schiavo, allowed by the Supreme Court to die by starvation and dehydration, a process that took nearly two weeks. Schiavo had been in a lengthy coma, disabled and unable to speak. Justice Anthony Kennedy refused to allow the 11th U.S. Circuit Court of Appeals to hear Schiavo’s case. Subsequently, her husband, Michael Schiavo was permitted to remove his wife’s feeding tube, setting in motion 13 days of starvation and dehydration.

Another execution that has been put on hold is that of Ohio inmate Jeffrey Lundgren, convicted of fatally shooting a family of five. Lundgren now claims that lethal injection would be a cruel way to put him to death and is part of a class action suit that challenges Ohio’s method of execution. Court transcripts show that Lundgren carried the youngest of the murdered children around on his shoulders before shooting her.

A final ruling in this capital punishment case is not expected before June. It is the first time since 1897 that the court has considered a specific means of carrying out the death penalty. Legal experts are predicting that, on this issue, the Supreme Court will face one of the most emotionally charged reviews in recent history. A defining decision by the court may curtail what law professor Edward Lazarus calls “making the interpretative process a free-for-all in which unelected and generally unaccountable judges impose on the Constitution their own personal political and moral beliefs.”

– Chase.Hamil

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