The Supreme Court is about to reconsider a form of punishment challenged by
What should we expect from a court which has, as Ronald Dworkin keeps reminding us, busied itself with revising established doctrines with right-wing élan? There would be no reason to assume that it would overturn an established practice. Death penalty abolitionists have no reason to cheer. The question, in any case, is a narrow one.
Then again, the interpreters of the law possess a multitude of tricks. In Furman v
The death penalty in the
The interest in the
This produces a profusion of idiosyncrasies. If executions have to exist, then let’s do it the ‘right’ way. Experts on execution in
Could injecting a person with a dose of lethal toxins cause pain and be unduly cruel? Maybe, says Denno in a 2002 issue of the Ohio State Law Journal. It all depends on what the ‘cocktail’ contains. The error of executioners may lie in not procuring the right drugs, not bringing themselves up-to-date on the literature on ‘humane execution’. Pavulon or pancuronium bromide simply masks the ability of the convict to communicate while the other toxins go to work. Witnesses have noticed, without any hint of mock surprise, convicts ‘grimacing’.
Death penalty advocates often go the other way: The issue surrounding the lethal injection of
And what of the doctors? Some prefer to turn Hippocrates in the grave and violate their undertaking to save human life. Doctors are not disallowed for involving themselves in giving advice to prisons in administering what amounts to a ‘medical’ procedure. There is a recommendation that they refrain from doing so, but there are no penalties for its breach. The Supreme Court is unlikely to challenge this.
In lethal injections, there is more than a faint suggestion that killing has been transferred from the mindless executioner to the ‘humane’ doctor. ‘Without question [lethal injection] is, in my opinion, extremely humane in comparison to either electrocution or execution by inhalation of poisonous gases’, wrote anaesthesiologist Stanley Deutsch to Senator Bill Dawson in February 1977. According to Deutsch, such a killing would be both ‘rapid’ and ‘pleasant’ for the convict.
There is a world of difference between the sedatives offered in the pneumatic chair of Deutsch’s Brave New World, and a penitentiary geared for death. It is Mengele-like in operation, the administration of lethal drugs in the name of state sanitation and moral improvement. Convicts become patients who erred in life and deserve a jab for their trouble making. Some degree of suffering must be had: ‘The prohibition’, stated the Kentucky Supreme Court in November 2006 ‘is against cruel and unusual punishment and does not require a complete absence of pain.’
In the end, the Supreme Court will simply work with what it has. Lethal injection won’t be condemned outright as a cruel and unusual form of punishment. Only its method–this particular type of drug ‘cocktail’–will be held up for execration. The execution show must go on. Besides, as the prosecutors in
Binoy Kampmark was a Commonwealth Scholar at