On Friday, January 23, 2015, the Supreme Court granted certiorari in a case raising the issue of whether current methods of execution using lethal injections violate the Eighth Amendment's prohibition of "cruew and unusual punishment." The Court last addressed the question of the constitutionality of lethal injections 8 years ago when it upheld the use of this method of execution in the context of the use of a proven sedative-- sodium thiopental-- which ensured that the subject of the execution would be deeply sedated and thus feel no pain when the drugs that would kill him were administered.
The issue comes up again because no one in the world would sell states sodium thiopental (or a similar drug, pentobarbitol) for the purpose of lethal injection, so the states have been experimenting with other drugs, most commonly midazolam, to induce sedation. The botched executions in Oklahoma, Arizona and elsewhere about which we've all read are a result of this sort of "trial and error" method of using an untested drug for the purpose of killing another person. It is in that context that the Supreme Court decided again to look at the lethal injection protocols.
The name of the case on which the Supreme Court granted cert is now Glossip v. Gross. I say it "now" has that name because it originally came to the Court on behalf of four inmates in Oklahoma, and had the name Warner v. Gross. But last week, before granting cert to consider lethal injection, the Supreme Court refused to stay the execution of Mr. Warner and that very night the State of Oklahoma executed him. So on Friday, when it granted cert, the Court had only three petitioners left before it, and changed the name of the case to the one it currently has.
It might be worth noting that it takes 5 Justices to stay an execution, and there were only 4 who voted to stay the execution of Mr. Warner. We know that because Justice Sotomayer (a Catholic) wrote a strong dissent to the refusal to stay the execution, joined by Justices Breyer, Ginsburg and Kagan, none of whom is Catholic. The remaining 5 Justices on the Court are all Catholic, and none of them would join in voting to grant the stay. Food for thought there. We profess a profound respect for life, but when it comes to the death penalty many of us Catholics somehow step away from logic and make an exception.
But this whole area is full of contradictions. We claim to be a civilized country, and profess great outrage at barbaric practices in the Middle East and elsewhere. But we mostly shrug and move on when we execute people in a way that is excruciatingly-painful.
We say that we need to execute people in order to get justice for the family of their victims. In fact, the State of Oklahoma said just that when it moved yesterday to delay the executions of the remaining three petitioners, one of whose execution had been set for this Thursday, so the Court could consider the methods the State intended to employ. But this idea of lethal violence as punishment for lethal violence isn't one we employ anywhere else.
We long ago gave up the idea that someone who beats up another person should himself be beaten up, or someone who rapes another should be raped. Only barbaric cultures do that. We would be horrified if the punishment for driving recklessly and hurting another were that the reckless driver was himself tied into a vehicle that was then struck at 60 mph, replicating the injuries of the reckless driver's victim.
And the reality is that studies on families of victims show they are not better off when the one who killed their family member is himself or herself executed. In fact, afterwards they carry the guilt of a second death, in addition to the grief of the first one.
No logic at all.
But perhaps the biggest inconsistency lies in the oxymoronic idea that you can have a "humane" execution. There is simply no guaranteed easy and painless way to take another's life. Over the years all the methods we've tried and rejected- -the guillotine, the firing squad, the electric chair, hanging, and now lethal injection-- have at times produced horrible, lingering deaths.
While I don't have a lot of hope that this Court will do it, isn't it time to just say "no?" To say that we as a people respect the dignity of all human beings-- whatever they have done-- so much that we won't voluntarily kill another person?
We need to say that-- to affirm our God-given human dignity-- because if we'll kill someone for murdering another we are only a short step removed from killing someone for heresy, or blasphemy, or for preaching the Gospel. If we don't believe in human dignity across the board, then we don't belive in it at all.
And if we don't believe in it at all, how are we so different from the folks we call barbaric?