The Supreme Court will hear the case of Baze v. Rees on Monday (when yours truly will be starting her final semester of law school!). There is a great post and some interesting commentary up on the Volokh Conspiracy (here). Additional musings:
Petitioners claim that the Court should examine the aggregate results of the death penalty: it should not examine the chance that any single prisoner will experience pain, but the chance that any executed person will suffer, when making a determination as to whether the punishment is cruel and unusual. This is problematic for several reasons.
First, it increases the risks without a proportional examination of the state interest. Even a procedure which is 99.9% reliable will, over the course of thousands of incidents, have a few instances of failures. This methodology would impose, via the Constitution, a requirement of perfect reliability. A better touchstone would be the meaning of “cruel and unusual” in 1791, which would presumably eliminate such things as the disemboweling, drawing, and quartering of prisoners; the drug cocktail that we use to put our pets to sleep is an improvement over any late-eighteenth century method of execution.
Second, the overstatement of risk has nothing to do with any particular prisoner. They do not experience the mathematical average of results, nor the aggregate of results. Imagine a procedure of lethal injection that is 97% certain to produce absolutely no pain, and, in 1% of cases, produces extreme chest pain, and in another 2% of cases, produces anxiety. The analysis proposed by the petitioners would require the Court to analyse the drug cocktail as if every prisoner experienced both chest pain and anxiety.
If this methodology were to be used with every State action, it would quickly become unconstitutional to imprison people, as the conditions within prisons can be horrific (rape, beating, lack of medical care). If the prison system works the way it is designed to work, prisoners will not be subject to inhumane treatment from the guards or be in a situation where they cannot protect themselves from physical harm. Nevertheless, a system that is administered by men and over men (to borrow a turn of phrase from James Madison) will never be wholly perfect: prisoners experience rapes, beatings, and deprivations of rights guaranteed to them through their incarceration. We may demand a system which is designed to be just, and one in which that design has some reasonable basis in reality, but cannot demand perfect execution (pardon the pun). In the specific instance of cruel and unusual punishment, there should be some element of proportionality: that which is cruel and unusual for a traffic offence may be wholly appropriate for violent felonies.
Instead of determining whether or not a prisoner may experience some discomfort and attempting to determine the level at which this discomfort violates Constitutional protections, the Court ought to compare with that commonly used in America immediately after 1791, determine if the proposed system is designed to achieve an end consistent with those limitations, and whether it is proportional to the crime committed (which overlaps a bit with the first part).
The system proposed by petitioners has the effect of reducing the state’s ability to ensure the health, safety, and welfare of its citizens, as it will be nearly impossible for it to have any time of criminal justice system. It also may have the effect of producing more brutal, albeit less painful, executions. The human body is not meant to die gracefully and painlessly; those ends are best accomplished when the death is immediate and causes an instantaneous elimination of neurological activity. Finally, petitioners propose that states use the drugs least likely to cause pain – i.e. the latest technology (here). This sounds great, although it puts the courts in the position of determining which sets of drugs are the least likely to cause pain. Scientific literature may be absent, conflicting, or unsubstantiated; furthermore, the differences between types of drugs may be marginal, statistically insignificant, or variable. Consider that Drug A may be more likely to cause pain in men than in women, while Drug B may have the opposite effect. Is there then a constitutional requirement that women prisoners to have access to Drug A?
As a final point, the Constitution explicitly envisions capital punishment as meeting its muster: the Fifth Amendment has language regarding “a capital, or otherwise infamous crime…” and, in the Double Jeopardy Clause, states that “[No person shall be] deprived of life, liberty, or property, without due process of law.” The former clause relates to punishments, not the underlying crime – i.e. crimes for which the state permits a capital or infamous punishment, not a crime that involves killing or notoriety (here). It involves more than your average mental gymnastics to read the Due Process Clause and believe that the government may not deprive citizens of their lives, but may deprive them of liberty and property. Judicial conservatives will often say that, absent a statement such as, “The people shall not be deprived of life,” capital punishment meets constitutional muster. In this instance, there is an implicit acknowledgment, within the document, that free people in a just society may have their lives taken by the state. Any end-run around those elements of the Constitution – the implicit permission for capital punishment – should be treated, and summarily ignored, as such.