The most detailed hearing ever held on lethal injection in California concluded Friday with a judge exploring a new drug protocol that could prolong condemned individuals' deaths but also reduce the risk of an inmate experiencing excruciating pain.In a commentary from yesterday's Los Angeles Times, Colin Dayan laid out the background to the cruel and unusual debate in U.S. constitutional law:
The current procedures call for a three-drug cocktail including a barbiturate anesthetic, a muscle-paralyzing drug and a heart-stopping chemical. Critics say the state does not properly administer enough anesthetic to deaden the pain of the final drug, whose effects are masked by the paralytic.
Introducing the possibility of a single-drug protocol, U.S. District Judge Jeremy Fogel asked an expert witness for the state to estimate the length of time it would take to "achieve a flat line" on an electrocardiogram — meaning someone was dead — just using "a massive dose of barbiturate."
"We are looking at 20 minutes at the low end and 40 minutes toward the upper end," said Dr. Robert Singler, a Napa anesthesiologist.
Fogel is considering a lawsuit brought by death row inmate Michael Morales, who contends that California's current lethal injection protocol presents an unnecessary risk of subjecting condemned inmates to cruel and unusual punishment in violation of the Constitution.
Morales was originally scheduled for execution Feb. 21 but state corrections officials postponed it after they were unable to meet conditions the judge imposed. Since then, the state has revised the protocol slightly, but has stuck by the three-drug cocktail.
The phrase "cruel and unusual" first appeared in the English Bill of Rights in 1689, drafted by Parliament at the accession of William and Mary. It seems to have been directed at punishments unauthorized by statute, beyond the jurisdiction of the sentencing court or disproportionate to the offense committed.I have no qualms about lethal injection, and I find the debate puzzling, and even mildly amusing as an example of how far liberal anti-death penalty activists have gone in their attempts to remove capital punishment as a sentencing option under the law.
After much discussion, the American colonists incorporated the same words into most of the original state constitutions. They became part of the federal Bill of Rights in 1791 as the 8th Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Based on the debates, it appears the drafters intended that the phrase apply to torture and other "barbarous" methods of punishment such as mutilation, burning, decapitation and drawing and quartering. What mattered was unusual cruelty in the method of punishment; they weren't concerned (and neither is Fogel) with whether the death penalty itself was cruel and unusual.
Since the 18th century, "cruel" and "unusual" have been coupled in our legal language and courts, and their rhetorical ambiguity has been alternately used to protect prisoners and to legitimize violence against them. Only at the start of the 20th century in Weems vs. United States, and then again in 1958 with the opinion of Chief Justice Earl Warren in Trop vs. Dulles, did the Supreme Court turn away from the mere ban on "barbarous" punishments and begin to consider whether punishments were disproportionate to the offense. In Trop, Warren wrote that it was unconstitutionally cruel to punish a wartime deserter by stripping him of his citizenship; in so ruling, Warren emphasized a flexible interpretation of the 8th Amendment that would adapt to enlightened public opinion. The "dignity of man," he posited, was the linchpin of the 8th Amendment.
The 8th Amendment attracted great attention during Furman vs. Georgia in 1972. This landmark case declared capital punishment to be cruel and unusual — and therefore unconstitutional. Not only was it "degrading to human dignity," wrote Justice William J. Brennan Jr., but it had proved to be "irrational and arbitrary." Justice Potter Stewart said: "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual." The court voted 5 to 4 to strike down every capital punishment law in the United States.
Yet it was Chief Justice Warren E. Burger's dissent that set the tone for more recent interpretation of the clause. Burger acknowledged "the haze that surrounds this constitutional command" but went on to note that "there are no obvious indications that capital punishment offends the conscience of society to such a degree that our traditional deference to the legislative judgment must be abandoned. It is not a punishment, such as burning at the stake, that everyone would ineffably find to be repugnant to all civilized standards."
Within just two years, 28 state legislatures retooled capital sentencing laws to make them less "capricious." In 1976, the Supreme Court reinstated capital punishment.
Given all this, how are we to determine what threshold of suffering triggers a violation? Twenty years after Furman, Keith Hudson, an inmate at the state penitentiary in Angola, La., sued three corrections officers for punching him in the eyes, mouth, chest and stomach. The bruises were minor, but there was swelling of Hudson's face, mouth and lip; the officers also cracked his dental plate and loosened his teeth. Justice Sandra Day O'Connor decided that the use of excessive physical force of this sort could constitute cruel and unusual punishment, even if no "serious injury" resulted.
Justice Clarence Thomas vehemently disagreed, writing in his dissenting opinion that the judgment had wrenched the 8th Amendment "from its historical moorings." What did the framers mean, Thomas asked, by "barbarous" punishment? They were thinking of the rack, the thumbscrew, drawing and quartering. How then could a mere beating be "sufficiently serious"? Thomas concluded: "A use of force that causes only insignificant harm to a prisoner may be immoral, it may be torturous, it may be criminal, it may even be remediable under other provisions of the federal Constitution, but it is not 'cruel and unusual punishment.' "
At first, when reading Dayan's piece, I thought the author was really skipping the most important issue in the larger death penalty debate: whether state executions violate the 14th Amendment's equal protection clause, since historically blacks have been more likely to be executed, especially in the Old South. (But see Randall Kennedy's, Race, Crime, and the Law, which reminds liberal opponents of the death penalty that racial minorities are more likely to commit crime, and that a "politics of respectability" requires that a history of racism does not excuse blacks from conforming to the established moral standards of middle class society.)
Dayan, though, puts the question of cruel and unusual punishment in the context of the Bush administration's activist law enforcement approach in the war on terror (with its advocacy of selective torture), and therefore sneaks in anti-Bush prejudice into his argument in opposition of capital punishment:
Three hundred years later, we're still debating when pain or suffering becomes severe enough to be called "cruel and unusual." I fear that the definition will be influenced by the terrible logic, verbal parsing and overspecificity of this administration's torture memos. In the current climate of hyper-legality, with UC Berkeley law professor John Yoo arguing for a "new legal regime" and a Congress that has just given the go-ahead to reinterpret the Geneva Convention, the meaning of the 8th Amendment could become increasingly unclear, increasingly loose, and the acceptable, allowable level of pain and suffering will grow.This is intellectually dishonest, and unnecessary in any case. Both the death penalty and the use of torture may serve legitimate state interests. Rather than mount liberal, knee-jerk arguments against execution and torture, opponents need to demonstrate in what situations the application of such procedures would or would not be reasonably defensible. The death penalty is not cruel and unusual, and lethal injection procedures are not immoral or torturous, and torture itself, as in the case of treatment of terrorists, may be an applicable policy defended on the grounds of reason of state.