Improving an Injustice

Although the death penalty, both philosophically and practically, runs afoul of our basic sense of decency, it sadly remains legal under the United States Constitution—or at least the Supreme Court’s reading of it. While the Court has not reconsidered the constitutionality of capital punishment recently, it did rule last week on issues of administration, when two death row inmates from Kentucky argued that a misadministration of the lethal injection could amount to cruel and unusual punishment and therefore violate the Eight Amendment. The Court, however, rejected such claims, arguing that, “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual” punishment.

Despite the Court’s willingness to dismiss Ralph Blaze and Thomas Clyde Bowling Jr., the two of the 3,300 death row inmates in Kentucky who brought this case forward, we believe that even the slightest chance of error in the administration of this lethal drug cocktail stands to dangerously violate a fundamental right.

Capital punishment by lethal injection does have a history of cases in which severe writhing and convulsions have taken place following the injection. Currently Kentucky, one of the 36 states that still use the death penalty, employs a cocktail of three different drugs, one of which is pancuronium bromide, a paralytic drug that is intended to prevent convulsions when the lethal chemical is inserted intravenously to the victim. Because the drug induces a paralysis, the executioners cannot determine if the inmate is undergoing any sort of pain. He is rendered unable to move, let alone scream—potentially silencing the most cruel of state actions.

Given the Court’s unwillingness to recognize the cruelty and inhumanity inherent in capital punishment, this most recent ruling is particularly saddening because of the Court’s unwillingness to more strictly regulate the potential dangers of fallible administration. In a state that permits the death penalty, we believe that any and all steps should be taken to remove any pain from the procedure—no matter the cost or the seeming marginality of gains. One potential solution, which Blaze and Bowling Jr. suggested, would be to give inmates a barbiturate that would be lethal but painless rather than the three-drug combination. But the Court hastily dismissed such a proposal as only “a slightly or marginally safer alternative.” There are many other options out there, and so long as capital punishment is permitted by the Court, we ought to pursue and practice only the least painful process of execution.

This Kentucky ruling has certainly dealt a blow to those advocates who hope to make the administration of the death penalty even slightly more humane. But we hope that in the future, such cases can be used as a starting point for the Supreme Court to consider more than just the means of execution, but the death penalty itself. The advocacy of improving capital punishment is admirable, but the real debate should not come down to how we put criminals to death, but rather the cruelty of state-sanctioned murder.