Cruel and unusual death penalties

SCOTUS has issued its final opinions for the year, as well as a list of the new cases it will hear next year.  The first decision upholds Oklahoma's use of an anti-anxiety drug that a lower court found was virtually certain to induce unconsciousness before the state administered a paralytic drug and a heart-stopping drug.  The case arose after anti-death-penalty advocates successfully pressured drug companies to stop making barbiturates available for the death-penalty process, in response to which Oklahoma switched to an alternative method of inducing unconsciousness.  The argument then shifted to whether the alternative drug was adequate; the Court ruled today that the lower court had not committed clear error in accept expert testimony to the drug's effectiveness, and that Oklahoma was not required to prove that the new drug was as effective as the ones that no longer were available.

The oral arguments had been reported to be unusually violent for this staid forum.

Justice Alito delivered the majority opinion, joined by Roberts, Scalia, Kennedy, and Thomas.  Justices Scalia and Thomas issued a separate concurring opinion, not disagreeing with the reasoning, but responding to a dissent issued by Justices Breyer and Ginsburg, who expressed a renewed plea for the Court to take up the constitutionality of the death penalty.  Justices Kagan and Sotomayor did not join in this plea, which led observers at SCOTUSblog to wonder whether they, like past liberal Justices, had grown less vehement in their opposition to the death penalty after spending some time on the Supreme bench.  Instead, Kagan and Sotomayor issued a separate dissent addressing only the issues concerning Oklahoma's choice of consciousness-terminating drug.


Grim said...

There are two very interesting philosophical questions at work here. The first is whether pain requires consciousness. The apparently unquestioned assumption is that if you are unconscious and someone stabs you, even though your body sends all the same neurological signals, there is no pain. Pain, then, is the conscious experience of those signals -- not the material thing, but the immaterial thing. It's a surprising assumption from the court.

An allied question is whether consciousness is also required for cruelty, which is the thing actually prevented by the 8A. If I can't cause pain to an unconscious person, can I be cruel to him?

Texan99 said...

I view the prospect of causing pain to an unconscious man in the ten seconds before I've finished killing him as utterly trivial, especially when he's being killed by something as nearly instantaneous as a KCl bolus to stop the heart.

We don't worry unduly about causing pain to anesthetized surgical patients, and those are people we actually expect to wake up and make bitter complaints if we got it wrong. This is the kind of thing Scalia has taken to calling jiggery-pokery: people who have lost the argument on the important issue--the state putting a man to death--and hope to set off a confusing smoke bomb.

Meanwhile we don't anesthetize fetuses before we kill them, because that would require us to face what we're doing.

Grim said...

Excellent points, all.

douglas said...

Concur. Especially that last bit.