Cruel and Unusual

Published on Friday, April 18, 2008 by The Guardian/UK

Cruel and Unusual
The US supreme court has ruled that lethal injection does not violate the constitution. States are now competing to reschedule delayed executions

by Clive Stafford Smith

Yesterday, in a splintered and chaotic decision producing seven separate (and occasionally vitriolic) opinions from the nine justices, the US supreme court again opened the floodgate that has been holding back the death penalty, ruling that lethal injections as currently administered were not unconstitutional.

This judgment (pdf) came despite ample evidence that the cocktail of drugs used to kill people can cause great suffering. As Justice Ruth Bader Ginsburg, dissenting from the ruling, wrote, “it is undisputed that the second and third drugs used in Kentucky ’s three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain”. Because the pancuronium bromide simply paralyses him, a condemned prisoner cannot “scream after the second drug is injected, no matter how much pain he is experiencing”.

Criticisms by the dissenting justices are buttressed by the British veterinarians’ decision four decades ago, joined more recently by their American counterparts, to ban the use of similar drugs when putting down a dog. Indeed, Justice Stevens wondered whether society could really allow a state to kill its prisoners “using a drug that it would not permit to be used on … pets.”

Unfortunately, other justices felt that the pancuronium bromide was justifiable to preserve “the dignity of the procedure … ” It is, in other words, an Ostrich drug, used to prevent witnesses from seeing the victim’s suffering. This somehow delivers a “dignified” death and allows those who run the system to stick their heads in the sand once again.

All this tinkering with the mechanism of death finally persuaded Justice John Stevens, an octogenarian who has wrestled with the issue for decades, to give up on the death penalty altogether. He stated that “the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the state [is] patently excessive and cruel and unusual punishment violative of the eighth amendment”

Yet, with states competing to reschedule executions, Stevens’ belated and isolated conversion will be of little solace to the 3,263 prisoners who now face death at the hands of the authorities once again.

Clive Stafford Smith is the founder of Reprieve and has spent 25 years working on behalf of defendants facing the death penalty in the USA .

© Guardian News and Media Limited 2008

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