[Deathpenalty] death penalty news----USA

[Rick Halperin]

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)