The U.S. Supreme Court is currently hearing a case that may become landmark in the death penalty debate. In Baze v. Rees, Ralph Baze and co-plaintiff Thomas Clyde Bowling are challenging John Rees, the commissioner of the Kentucky Department of Corrections. They claim that the death penalty constitutes cruel and unusual punishment under the eighth amendment. Thirty-seven out the thirty-eight states that have a legalized death penalty primarily use lethal injection, so the Court’s decision has drastic potential.

The Supreme Court’s opinion of the death penalty has varied through the past decades.  Furman v. Georgia (1972) made the death penalty illegal- the court deemed it “arbitrary and capricious”. The court reversed Furman in Gregg v. Georgia (1978). U.S. citizen opinion has also bounced about. In 1994 a USA Today/Gallup Poll found 80% of Americans to be in favor, compared to a poll conducted this year, which found 65% in favor.

Some explanation of the downturn of public opinion may be found in the public’s knowledge of cases such as Morales v. Tilton (2006). This case exposed the San Quentin prison’s lethal injection practices, which eventually led to the cancellation of Michael Morales’ execution. In a fascinating decision, Judge Jeremy Fogel of the San Jose District Court detailed what he discovered when he was given a tour of the San Quentin execution facilities.

Morales had alleged that the staff that administered the lethal drugs was untrained. Amazingly, Fogel found this to be true. In his decision the judge wrote that execution team members had “almost no knowledge of the nature or properties of the drugs that they used or the risks and potential problems stemming from these drugs.” The nurse responsible for mixing the fatal sedatives told him: “ We don’t get trained, really.” Fogel also wrote that these essentially untrained executioners worked in a converted gas chamber that was cramped and poorly lit. The American Veterinary Association added in a stunning amicus curiae brief that they “would not euthanize animals in the way California euthanizes inmates.”

The practice of lethal injection has trumped the alternative death penalties of hanging, electrocution and the gas chamber over the years because it was presumed to be less painful for the inmate. The execution takes place through the administration of a three-drug cocktail, consisting of sodium thiopental (a sedative), pancuronium bromide (which causes muscle paralysis), and potassium chloride (which induces cardiac arrest). The theory was that the thiopental would cause the inmate not to feel the effects of the following two fatal injections. However, the doubt has risen as to whether the sedatives always work, or whether the patient is always given adequate amounts of the sedative. (In one California case the sedative was forgotten altogether.)  If these doubts prove true, inmates who have received the lethal injection have potentially died excruciatingly painful deaths.

The court will likely take Morales v. Tilton into account when making their decision. In Roper v. Simmons (1995), as well as other cases, the court’s decision rested on the principle of “an evolving standard of decency.” The court’s decision will decide for the nation whether or not the United States has “evolved” past lethal injection.

References:

Baze v. Rees (Kentucky Supreme Court) No. 07-5439, Case Nos.: 2005-SC-0543

“Death Penalty: Lethal Injection on Trial” by Kavan Peterson, http://www.stateline.org/live/details/story?contentId=171776

Furman v. Georgia, 408 U.S. 238(1972) U.S. Supreme Court

Gregg v. Georgia, 428 U.S. 153 (1976) U.S. Supreme Court

“Kentucky Lethal Injection Case to Be Heard by Supreme Court” Associated Press, http://www.foxnews.com/story/0,2933,297966,00.html

Morales v. Tilton (2006) United States District Court for the Northern District of California, San Jose Division. Case No. C 06 219 JF RS & C 06 926 JF RS

Roper v. Simmons (03-633) 543 U.S. 551 ( 2005) 112 S.W. 3d 397, affirmed

“Supreme Court to Review Legality of Lethal Injection” (Brian Evans interview)

http://www.democracynow.org/article.pl?sid=07/10/04/1355219

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