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Lethal Injection Ruling Will Have Limited Impact

New America Media, Commentary//Video, Michael A. Kroll//Video: Cliff Parker and Min Lee Posted: Apr 19, 2008

Editor's Note: A Supreme Court ruling on Wednesday upheld Kentuckys method of execution by lethal injection. Michael A. Kroll explains what this means for the future of death penalty opposition in other states. Kroll is the editor of The Beat Within and founding director of the Death Penalty Information Center in Washington, D.C.

This is a streaming MP4video - you'll need Quicktime 6 or later to view it.

SAN FRANCISCO -- This week the Supreme Court said that the Kentucky scheme of executing, which is a three-drug lethal cocktail, met with the standard of Constitutional acceptability. They found that it did not violate the 8th Amendments standards of cruel and unusual punishment because it did not deliberately inflict pain.

There are nine members of the Supreme Court, and seven opinions were written. When you have seven opinions parsing a particular law, it raises many other questions.

In those different decisions and opinions, the door is open for more challenges.

The Supreme Courts decision does not close the door on challenges to the death penalty, but it does substantially close the door in many states.

In states that are virtually the same as Kentucky, executions will resume quickly. But in other states, the courts will have to decide. Judges in California, for example, are going to have to determine whether there are substantial differences between Kentucky and California.

In California, we have our own federal judge who has stopped the leading death penalty case in the state from proceeding because the standards that California operates under are not clear. There are things that go on in the preparation room that differ from execution to execution.

This weeks decision by the U.S. Supreme Court will not be the end of litigation over lethal injection. But the prospects dont look good: the U.S. Supreme Court has never invalidated any method of execution in the history of capital punishment.

Chief Justice John Roberts described a violation of the 8th Amendment, what would constitute cruel and unusual punishment, as "dismemberment, disemboweling, beheading, quartering, dissecting, and burning alive, all of which share the deliberate infliction of pain, for the sake of pain. He is quoting from a case out of Utah.

When the standard for cruel and unusual is dismembering, disemboweling and burning at the stake, you can see what a high bar must be reached.

Several of the judges relied on a case from Louisiana. In 1947, a young man named Willie Francis was subjected to the electric chair for a crime he did not commit after a trial of half a day in which his lawyers presented no defense and no witnesses. He was put into the electric chair and a jolt of electricity passed through his body. Francis lived through the first attempt at execution the only person as far as I know who survived the electric chair.

Justice Clarence Thomas quoted from affidavits that were submitted on behalf of Willie Francis at the time he appealed: "His lips puffed out and his body squirmed and tensed, and he jumped so that the chair rocked on the floor."

According to Thomas, "The court concluded the Constitution did not prohibit Louisiana from subjecting the petitioner to those very risks a second time in order to carry out the death sentence."

In other words, he survived, he was burned, his lips puffed up, his head steamed and smoked, and yet a year later the Supreme Court in a five-four decision voted that putting him to death again in the very same chair did not constitute cruel and unusual punishment.

If you can be burned at the stake, survive it and be burned again and that does not constitute cruel and unusual punishment you can see that virtually everything, according to this court, will meet the standard of not being cruel and unusual.

The White House has authorized torturing prisoners, subjecting them to drowning techniques to gain their compliance. We have moved a good deal farther in our sense of right and wrong, and what is permissible by the government.

That is what this case is all about.

I would never preclude the court as an avenue for challenging death sentences. As our standards of decency evolve, the court changes. Until 1977, for example, the United States executed rapists. It took until 2002 for this same court to say that executing the mentally retarded violated the Constitution. It took until 2005 for the court to say you could not execute a child.

There will be many more challenges in the court. At the moment with this court which is heavily made up of judges appointed by very ideological Republicans it will be a long time before a wholesale challenge will be successful.

From a political standpoint, the most effective strategy for opponents of the death penalty will be to seek legislative moratoria state by state not ending the death penalty, but stopping it for a period of time while a state can study the costs and racial and geographic disparities.

In the short term, moratoria will be more effective than going to court.

In California, a lethal injection case is now being heard in a federal court in San Jose, under U.S. District Judge Jeremy Fogel. Judge Fogel has held hearings on the process, taken a tour of the San Quentin death chamber and found some things that raise some troubling questions, including the lack of uniform standards when it comes to the competency of those charged with administering a lethal dose of drugs.

The case in Kentucky won't dispose of the matter in California. There are many more questions to be asked.

Transcribed by Laurie Simmons.

Related Articles:

The Unseen, Uncounted Casualties of the Death Penalty

'I Didn't Do It' -- Exclusive Interview with Clarence Ray Allen

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