Friday, April 25, 2008

"Substantial risk of severe pain" not cruel?

I'm on vacation, so I am reading a long Supreme Court decision. Doesn't that sound relaxing?

Last week the Supreme Court upheld Kentucky's method of lethal injection used to execute death row inmates. I am reading the 97-page decision in Baze v. Rees. Of course I am reading it as a pastor and a citizen--not as a legal scholar. I did not start reading at the beginning of the decision and I may not read the whole thing. But my guess is there may be more than one blog entry in my musings over the high court's judgment.

For the time being I confess to experiencing some shock over the conclusions of Justice Clarence Thomas with Antonin Scalia concurring. Thomas agreed with the final judgment but disagreed with a particular legal standard that it set. Follow his logic with me.

Thomas is concerned that the "governing standard" of the decision holds that a method of execution violates the Eighth Amendment prohibition against cruel and unusual punishment "if it poses a substantial risk of severe pain that could be significantly reduced by adopting readily available alternative procedures." Justice Thomas rejects this standard as finding "no support in the original understanding of the Cruel and Unusual Punishments Clause." He is convinced that "a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain" (emphasis mine).

Did you follow that? If we think a method of execution "poses a substantial risk of severe pain" and we are aware of an alternative that is readily available that could greatly reduce that risk of pain and yet we choose not to adopt that alternative we are not being cruel. Indeed, for Thomas and Scalia, an execution mode is cruel only "if it is deliberately designed to inflict pain."

Again, I am no legal scholar. Yet the formulation of Thomas and Scalia seems to completely dismiss the cruelty of neglect by defining a punishment as "cruel" only if it "is deliberately designed to inflict pain." It seems to me that the neglect of any procedure that could significantly reduce "the risk of severe pain" is inherently cruel.

Thomas recites his version of the historical context of the adoption of the Eighth Amendment along with applicable case law to show that the clause related to cruel and unusual punishment should be applied only to "purposely tortuous punishments." He is concerned that getting into the business of comparing one mode of execution to another threatens to "transform courts into boards of inquiry charged with determining ‘best practices’ for executions.'" Thomas and Scalia think that going down this road will "require courts to resolve medical and scientific controversies that are largely beyond judicial ken."

It seems to me that a connection between medicine, science and law is unavoidable when taking up a discussion on whether or not injections into human bodies of certain chemicals are cruel behavior. The same would apply if we are discussing the effects of other modes of execution including inhaling poisonous gas or high voltage electricity pulsing through the body. How can the possibility of cruelty in such actions be pondered apart from some consideration of science and medicine?

Beyond this, Thomas' analysis of history and case law notwithstanding, it is difficult to view the failure to adopt a readily available procedure that could reduce the risk of severe pain as anything but cruel. I do not claim to know the law but this logic seems cruel by any reasonable standard.

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