Thursday, April 17, 2008

The Supreme Court Fine-Tunes Pain - New York Times editorial


The Supreme Court Fine-Tunes Pain

The Supreme Court's regrettable ruling upholding Kentucky's use of lethal injection is a reminder of why government should get out of the business of executing prisoners. Rather than producing a crisp decision upholding the constitutionality of lethal injection, the court broke down into warring opinions debating the ugly question of how much unnecessary pain the state may impose. Most compelling were the dissenters, which wanted to know more about whether Kentucky was torturing inmates needlessly, and Justice John Paul Stevens's challenge to capital punishment in all forms.

Kentucky is one of at least 30 states that execute people by lethal injection of a three-drug cocktail. This method was meant to be humane, but it can cause inmates to feel excruciating pain. Kentucky lacks proper safeguards, including adequate training, to avoid needless suffering.

Chief Justice John Roberts, writing for himself and two other justices, found that Kentucky's procedures do not violate the Eighth Amendment ban on cruel and unusual punishment. Even if they inflict great pain, he said, the inmates challenging them failed to show that the risk of harm was "objectively intolerable." (Seven justices concurred, to varying degrees.) Justices Clarence Thomas and Antonin Scalia laid out an even crueler standard — unless an execution is "deliberately designed to inflict pain" it does not violate the Eighth Amendment. That would allow a lot of grossly negligent infliction of agony.

In dissent, Justice Ruth Bader Ginsburg, writing for herself and Justice David Souter, emphasized that Kentucky does not take steps that other states do to help ensure that inmates do not suffer. She argued that the case should be sent back to a lower court to determine if Kentucky should use such safeguards.

Justice Stevens, in a welcome surprise, said that he had come to the conclusion that the death penalty carries such high risks of error and discrimination, while doing so little good, that it is unconstitutional. He voted to uphold Kentucky's procedures because he believed precedent required it, but he said it is time for the court and legislatures to take a hard look at whether the death penalty's substantial costs outweigh its benefits.

Wednesday's ruling clears the way for states that had put their executions on hold to resume them. Lawyers for death-row inmates insist, however, that the legal test the Roberts decision used gives them a basis for more challenges to lethal injection. That means more fights over how much needless pain is too much.

The better course would be for the nation to undertake Justice Stevens's hard look at capital punishment — and leave it behind.

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