Lethal injection is OK: The High Court ruled that Kentucky's method is not cruel and unusual

When the question of whether or not lethal injection, as applied in Kentucky, was a violation of the Eighth Amendment’s cruel and unusual punishment clause, the Supreme Court decided last week that it was not.

The case involved two Kentucky inmates who are both on death row after being found guilty of double-murder. The question raised was with the method of lethal injection.

The method isThe  a three-step cocktail that first numbs the victim, then paralyzes them and finally kills them. There has been evidence to show that the person being lethally injected undergoes serious pain during their execution but cannot show it due to their paralysis.

In a 7-2 decision, the court ruled that the Kentucky method of lethal injection was not an Eighth Amendment violation.

Although this may seem like a strong ruling, there were eight different opinions written; the controlling opinion, by Chief Justice John Roberts, had three signatures, the most of any of the opinions.

Those signatures included Chief Justice Roberts, Justice Anthony Kennedy and Justice Samuel Alito, Jr. Justice Kennedy was the only one of the nine to not author his own opinion.

Justices Ruth Bader Ginsberg and David Souter voted against the decision, each writing their own opinion as to why.

Despite the fact that Alito signed on to the controlling opinion, he still wrote his own opinion criticizing Roberts, writing the opinion was open to “misinterpretation” and might lead to a “litigation gridlock.”

Senior Associate Justice John Paul Stevens voted in the majority on this case, but his opinion seemed to hint that there are constitutional and policy issues with the death penalty. The opinion said that “state-sanctioned killing” is “becoming more and more anachronistic.”

Many critics are equating this statement by Stevens to a statement that Justice Harry Blackmun made shortly before leaving the court in 1994 which said, “I no longer shall tinker with the machinery of death.”

Stevens turned 88 on Monday and is not expected to sit on the Court much longer.

While the High Court was evaluating this case, they had expressed that they would stop all executions until the issue was resolved; now that the Court has ruled on this issue, states are free to continue with lethal injection as a form of execution. Florida has announced that it will continue with scheduled executions immediately.
This decision set the question of how to proceed with litigation against the death penalty in the United States. According to political science professor Sara Schiavoni, the new question, tailored around language in the controlling opinion, will be “what standard should be applied in evaluating the risk of error in light of other alternatives.”

It is unclear as to whether or not other states will model their method of execution after Kentucky’s now that it has been approved by the Court. According to Schiavoni, Kentucky does not have the best system of execution. It was, however, good enough to pass the scrutiny of the Court, so the question remains: How bad does a method of execution have to be before the Court will declare it a violation of Eighth Amendment rights?

In a dissenting opinion, Ginsberg raised this point. She listed states that have better methods of execution than Kentucky, including Alabama, California, Florida, Indiana and Missouri in her written opinion.

The state of Ohio has had major flaws with their system of execution in the recent past. In Lucasville, Ohio, during an execution in 2007, it took so long for the procedure to occur that the victim, Christopher Newton, requested to get up and take a bathroom break before resuming his execution, according to CBSNews. A normal execution takes about 20 minutes; Newton’s took just under two hours.

Massachusetts District Judge Stephen Ostrach suggested that the convoluted precedent set by the Court will make things very difficult for trial judges when dealing with cases that could involve the death penalty.

“Several different opinions don’t give clear guidance to trial courts, which is the role of the Supreme Court,” he said.

Ostrach also added that, as a judge, it is important to not compromise reason with pragmatism on something as important as the death penalty.

It is likely that, with all the problems that Ohio has with their method of execution, either the state legislature, department of corrections or state court system will get involved to create a sense of uniformity towards the method of execution in Ohio.

Ostrach suggested that this is the best that can be done for a few years. “With the low number of cases that the Supreme Court hears each year, it is not likely that they will return to the issue of the death penalty for the next couple,” he said.

“The death penalty will most likely continue as normal, this ruling does not necessarily make it vulnerable,” Ostrach added.