Lethal Injection and the Eighth Amendment

The federal government and thirty-seven states that allow capital punishment sanction some variation of the “three-drug cocktail” method of lethal injection. Sodium thiopental renders the inmate unconscious, pancuronium bromide paralyzes his muscles, and potassium chloride delivers the death blow by stopping his heart.

The idea is to make executions quick and painless. Trouble is, anecdotal evidence suggests that the procedure is bollixed with frightening regularity. Participating in executions is generally viewed as a violation of medical ethics, so you don’t see many doctors or other health care providers doing it.

Today the U.S. Supreme Court held oral argument in Baze v. Rees, in which the issue is whether the three-drug protocol used in Kentucky contravenes the Eighth Amendment’s proscription against cruel and unusual punishment. From what the pundits are saying, it doesn’t look good for capital punishment opponents. It appears the best they can hope for is a remand for further fact-finding, which Scalia seems to oppose on the ground that states won’t be able to off anybody in the interim.

SCOTUSblog’s Lyle Denniston’s take on the argument is available here. Orin Kerr’s commentary is here courtesy of the Volokh Conspiracy. C-SPAN has the audio here (RealPlayer required). The Court’s official transcript of the argument is available here (pdf, 70 pages).

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  • iT  On January 7, 2008 at 4:48 pm

    Seems Scalia expressed some horror at the prospect, telegraphed by Souter and Breyer, that the case get sent back down for some more findings because, y’know, this would only further delay the gov’t killings.

  • genghishitler  On January 7, 2008 at 5:33 pm

    Scalia just plain LOVES executions. He also loves Catholicism, but considers himself free to disagree with the Church’s position on capital punishment because it’s not ex cathedra teaching. :::beats forehead repeatedly on desk:::


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