Killing The Death Penalty

Posted 7/28/2006 from IBD:

Lethal Injection: Serious moral and religious arguments can be made against the death penalty. The chance that a murderer might experience a moment of suffering is not one of them.

When the Founders conceived the Eighth Amendment ban on "cruel and unusual punishments," they probably never dreamed that the ultimate criminal penalty would become as gentle as it is today.

"Gentle" is a relative term. Lethal injection, the method of execution used in most states, does end a life and is said to cause severe, if short-lived, pain when not administered properly. But compared with older methods, from hanging and beheading to the electric chair, firing squad and gas chamber, it is more humane. And as commonsensical people like to point out, any suffering it causes is nothing close to the agony that murderers inflicted on their victims.

Despite all that, attorneys for death row inmates still make the cruelty case against executions, and lately they have been winning rounds in court. Last Tuesday, a federal judge refused to accept Missouri's revised lethal injection procedure, keeping that state's death penalty in limbo. Other lethal-injection challenges have put executions on hold in California, Maryland, Florida and Delaware. The U.S. Supreme Court has not weighed in on lethal injection specifically, but it ruled in June that a Florida inmate could raise the issue of execution methods in appealing a death sentence.

The claim in all these cases is essentially the same: That the standard three-drug sequence may not always work as planned. The first drug, a sedative, is supposed to induce unconsciousness during administration of the next two, a paralyzing agent and a drug that stops the heart. Not every execution goes so smoothly. Technicians sometimes struggle to find veins in inmates with a history of drug use.

And an article last year in the British medical journal Lancet raised doubts about lethal injection by claiming, on the basis of post-mortem blood samples, that the level of the initial sedative might not be high enough to keep the inmate blacked out.

The Lancet study has been criticized because it did not measure drug levels at the time of execution (some samples were as much as two days old). But it carries weight in the American legal system, which tends to give death row appellants every benefit of the doubt.

Though judges are not barring lethal injection outright, they are setting near-impossible conditions on its use.

In California, U.S. District Judge Jeremy Fogel said the state could use its standard drug protocol if an anesthesiologist is on hand to make sure the inmate is unconscious. The state could not find any physicians willing to violate ethics (as they saw them) by assisting in an execution. Another federal judge, Fernando Gaitan, has made the same demand of authorities in Missouri. Inmates in both cases, by the way, had been sentenced to death for raping and murdering teenage girls.

Such rulings, if allowed to stand, would effectively grant murderers the right to a painless death. That would put them in a uniquely favored class. No one else (and certainly not murder victims) would be legally protected against suffering at the end of life. It's reasonable to ask that executions do not cause needless pain, but no system will ever be perfectly free from accident or errors, including the errors of those medical professionals that judges now want to see on board.

What players of the pain game seek is an end to executions by any means, no matter how absurd. This is a new variation on the old theme of using the courts to nullify the death penalty rather than try to change laws through democratic means. Even death-penalty opponents should object to this new tactic because it trivializes an issue — the taking of human life — that should be treated with seriousness on both sides of the debate.