Tuesday, May 06, 2008

Death Penalty Case in the US: The Hindu's High (and Misplaced) Hope of Abolition

The Hindu has an op-ed today about the recent US Supreme Court case Baze v. Rees over the constitutionality of the 3-drug protocol (Pentothal for anesthesia, Pancuronium Bromide to paralyze muscles to stop twitching and grimacing to keep the spectacle dignified, and Potassium Chloride to stop the heart) used in lethal injection. The editorial, in keeping with its past position, wants to see an end to the death penalty. As the paper explained, 'the contention of two death row inmates in Kentucky state was that the administration of pancuronium bromide, the paralytic, carried the risk of excruciating pain in the event of inadequate dosage of the anesthetic sodium thiopental (caused by improper administration of the drug)'. As regards the judgment, it says:

...the court’s disposition to leave open the question of less painful alternatives to the existing protocol no doubt allows limited room for manoeuvre from the standpoint of the reversal of the death penalty. But such a stance perhaps affords an opportunity to establish that a pain-free lethal injection may after all be non-existent, just as the trauma that accompanies death is inescapable.

Actually, the standard set by the lead opinion is that to accept that a particular procedure of carrying out the death penalty is indeed unconstitutional, petitioners need to provide an alternative that 'is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain'. Note that it does not require that lethal injection (or any other procedure) itself be pain-free; instead a different method of execution must be shown to only cause less pain than the existing one failing which the latter stands.

The court also says in the first para:

Yet the divergent opinions expressed in the ruling on the constitutionality of the drug regimen and on the deterrent value of the death penalty itself are hopeful pointers to the ultimate, if distant, goal of the abolition of this barbaric punishment.

There was only one opinion written by Justice Stevens that called for the abolition of the death penalty - none of the other eight judges joined it. Furthermore these challenges and the judges' cautiously favorable responses to make the death penalty less painful are less, not more, likely to take the US towards abolishing it. If the practice is so outrageous, gruesome and trouble-prone (read Justice Thomas' opinion to learn the kinds of 'cruel and unusual' punishments that were meeted out centuries ago), it is possible that popular revulsion would push the states towards ending the practice but if the individual is anesthetized first and his life ended in as painless a manner as possible, would the people still see merit in abolition? I think not.


RM said...
This comment has been removed by the author.
RM said...

I was wondering whether Chindu wrote any editorial on the large number of executions that China carry out. Let alone the pain caused to the victim. Does anybody know if the average chinese citizen can legally challenge the state practice of executions, as was the case in the US.

pilid said...

Good point. Actually no. Human rights standards do not apply to China, only to the US. There have been numerous op-eds about Abu Ghraib and Guantanamo, not a single one about the large number of executions or the suspected organ trade following them. Nor is there virtually any mention of the limited authority of the Chinese judiciary to challenge the party line.

Anonymous said...

At least China hanging Hans. Amerikkka hangs mostly blacks.
When China also discriminates, you will see Chindu raising oppose to China death penalty issue.

Vir Sanghvi said...

Not hindu, chindu but sin-do. they are unholy bunch posing as the savants and wisemen.

pilid said...

Anon and vir, thanks for your comments.

sridhar said...

To Paraphrase "Cho" where the left rules there cannot be any rights