The Machinery of Death Ticks Along

Ann-Marie Luciano

The Supreme Court's decision last week on lethal injection in Baze v. Rees was another step back for death penalty opponents and another jump ahead towards quickening the machinery of death. In a 7-2 decision, the court ruled that Kentucky's three-drug method of execution by lethal injection does not violate the Eighth Amendment's prohibition on cruel and unusual punishment.

There is much well-documented evidence that the first drug administered often fails to sedate death row prisoners before they are given the second and third drugs that paralyze them.

Although this has been rejected by the American Veterinary Association and banned by 42 states for use in animal euthanasia, the court nevertheless found that for humans this method of execution did not amount to cruel and unusual punishment. For his standard of "cruelty," Judge Roberts cited to a Supreme Court principle from 1890 that defines cruelty as limited to punishments that "involve torture or a lingering death."

With this decision, the hopes of a continued moratorium have vanished. Since the Supreme Court's decision, several states have announced that they will resume executions. Virginia has lifted its death penalty moratorium and many states have already scheduled executions, such as Texas (which has so far set three execution dates), Georgia (which has scheduled an execution for next month), and Oklahoma (which has plans to schedule executions for two death row inmates).

Maryland Governor Martin O'Malley has remained uncommitted as to how he will proceed after the Supreme Court's ruling. As a result of his silence, The Maryland House Republicans and others have increased pressure on O'Malley to address the Maryland Court of Appeals ruling in December 2006, which found that the state improperly adopted its death-penalty procedure and therefore could not execute inmates until the problem was corrected.

Now that the issue as to the constitutionality of Kansas' method of lethal injection has been temporarily resolved (although not necessarily settled), it may be time to engage in a broader dialogue about not only the propriety of the methods of execution, but also of the very idea of state-sanctioned killing.

My last post discussed the myth surrounding the deterrence and costs arguments often raised by death penalty supporters. In my opinion, the most important reason to oppose the death penalty comes down to something fundamental: the risk of executing someone who is innocent.

It seems to me that no one could disagree – not even the staunchest death penalty supporter – that it is okay to have a flawed system that executes innocent people every once in awhile. But this is precisely the position that many death penalty supporters impliedly take when trying to debate all of the statistics of innocent prisoners being set free after a wrongful conviction. Since the death penalty was reinstated in 1976, there have been an alarming 128 people released from death row. (You can read the stories about each person's conviction and ultimate exoneration at the Death Penalty Information Center website).

Despite this, some death penalty supporters argue that the exoneration's actually show that the system works because the wrongful executions were prevented. What these supporters fail to recognize is that so many other death row prisoners have not been so lucky, either because the evidence from the crime scene wasn't preserved (and thus there is nothing to test to prove one's innocence), their appeals had been exhausted or their lawyers didn't have the time or resources to fully investigate and prove their innocence. The Death Penalty Information Center lists eight cases of death row prisoners who had strong evidence of their innocence but were nevertheless executed.

Reading these stories always leaves me outraged. How is it, in 2008, that we can continue to allow the machinery of death to run, despite all of the innocent people swept up into our flawed justice system? How can we continue to close our eyes to these injustices, especially as we stand alone as the only western democracy that still kills people as a form of punishment?

As the saying goes: an eye for an eye will leave us all blind.