A Mixed Cocktail of Law and Fact

Andrew Cohen Examines This Week's Supreme Court Test Of Lethal Injections

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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When they hear oral argument Monday morning in a case about the constitutionality of lethal injection procedures, the Justices of the Supreme Court will face a classic legal conundrum.

Kentucky wants to keep what it labels its new and improved execution protocols - and it has the law on its side. Two condemned death-row inmates want the protocols changed - and they have the facts on their side. The Justices must choose.

The two most important things to say about Baze v. Rees is what the case is not about. It is not a case that could prohibit capital punishment in America - that isn’t even on the table here. And it is not a case that is going to lead to a reprieve for the men who are bringing it - the best they can hope for is to be executed more efficiently, professionally and perhaps a little less painfully. (Good news! You won the case. Bad news! Later this year you’ll be given an even deadlier mixture of drugs.)

Ralph Baze and Thomas Bowling, two death row inmates fighting to die a little more cleanly, come to court (well, their lawyers come to court) benefiting from a recent surge in public consciousness about the skeezy way in which prison officials have carried out their duties using the lethal mix. For example, they come citing the December 2006 execution in Florida of a man named Angel Nieves Diaz, who suffered burns on his arms when his executioners botched their jobs by injecting one of the drugs into the soft tissue of his arm.

They come to remind the Justices that “the drug combination” used in Kentucky “is so sensitive to error and potentially inhumane that Kentucky law, like that of many other states, prohibits its use in animal euthanasia without anesthetic monitoring by trained professionals,” the type of monitoring they say does not exist in cases of human euthanasia. Give that responsibility to “untrained personnel” working in “inadequate facilities” and presto, say the defense attorneys, you get a constitutional violation.

Lawyers for Baze and Bowling are pushing these sorts of facts to argue that the Justices must intervene and force Kentucky - and perhaps every one of the dozens of other states which employ the method - to strengthen their procedures so as to make them strong enough to carry the weight of the 8th Amendment’s proscription against “cruel and unusual punishment.” It’s a fairly modest argument. The lawyers concede that lethal injection can, when administered in the appropriate circumstances, be a legally permissible way for the state to perform executions.

Kentucky comes to Court Monday with three items on its speaking agenda. First, the Commonwealth wants the Justices to remember just how “grisly” were the crimes committed by Baze and Bowling. In fact, the first substantive pages of Kentucky’s brief focus almost exclusively upon the 1992 murders (by Baze) of Powell County Sheriff Steven Bennett and Deputy Sheriff Arthur Briscoe, and upon the 1990 murders (by Bowling) of Eddie and Tina Early.

Next, Kentucky’s lawyers want to remind the Justices that the state courts of Kentucky have fully mulled over the issues raised by Baze and Bowling and just as thoroughly have rejected them. There were no problems in 1999, Commonwealth lawyers argue, which was the last and only time that Kentucky ever executed someone by lethal injection. Kentucky’s procedures are “similar to those in other states,” these lawyers say, and the Supreme Court has long acknowledged, if tacitly, the legitimacy of this form of execution.

Finally, Kentucky wants to be sure the Court knows that the 8th Amendment has not typically been interpreted to preclude from punishment, capital or otherwise, the infliction of any and all pain. “Petitioners have been sentenced to death, Kentucky seeks to execute them in a relatively humane manner, and has worked hard to adopt such a procedure,” the Commonwealth begins its legal argument. It’s just that simple and it depends upon what your definition of “relatively” is.

Oral argument in Baze v. Rees arrives before the Court just days after the Justices announced they intend to hear later this term an even more profound death penalty case. Last Friday, the Court agreed to hear a challenge by a Louisiana man who has been sentenced to death there for child rape - a non-capital (if particularly evil) crime. Only five states presently have such laws on the books and no other state has attempted to enforce their provisions since the Court ruled a generation ago that capital punishment for non-capital crimes is unconstitutional.

And the debate over lethal injection comes before a Court which has become increasingly willing - even as it becomes evermore conservative - to limit the application of the death penalty in America. In 2005, the Court struck down capital punishment for juvenile murders. In 2002, the Court struck down the death penalty for mentally retarded murderers. Throughout this period the Justices have repeatedly chastised rogue courts in Texas which have failed to follow Supreme Court precedent. This is the context for Monday’s argument.

It’s Fact v. Law, Ideology v. Trend, Contraction or Expansion of the Death Penalty. Those are stark choices for the Justices even if they come from a case that isn’t likely to make a stark difference in the way the lives of the two men who have brought it will end.

[jamo3776]

Death is not Painless People die every day that would most likely like to die that way painless but they took a life without Warent the pain if any they disseve it !

[cbs_oliver]

Is it actually legal to hire someone to kill someone else?

How about whipping someone else?

Waterboarding?

Isn''t there a rule about placing those kind of expectations on employees?

If you ask me only commedians should be hired to knock ''em dead!

:)

[impupsdad1]

If Baze & Bowling don''t accept Christ according to Acts 2:38, the pain they suffer by lethal injection is nothing compared to the pain they will feel for eternity.

[otdky07]

The initial steps are the same as inducing anesthesia for surgery. Most people don''t describe their anesthetic experience as cruel and unusual.

[mcvet]

If Baze & Bowling don''''t accept Christ according to Acts 2:38, the pain they suffer by lethal injection is nothing compared to the pain they will feel for eternity.


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Posted by Impupsdad1 at 11:11 PM : Jan 06, 2008
+ report abuse

You Religious Nazi''s just HAVE to sell you soap don''t you! You creatures are the most disgusting slime to ever inhabit EARTH! WE the PEOPLE are not concerned with their after life, NOTHING in our constitution and I repeat the word NOTHING, has anything to do with their After Life. It DOES have a LOT to do with how they are punished. Now get a life and TRY to be an American! Sieg Heil and Amen

[jjp735i]

It''s illegal to put a dog down in the same manner. Well that''s true unless the dog is mad and on the attack, then you shoot it.

Those who murdered other people did not think twice about causing pain and suffering to the victims.

We need to go back to a bullet in the back of the head. One bang and it''s over. No pain, no suffering.

What can they complain about then? It''s too fast of a death?

Or kill them in the same manner that they killed. let them feel the pain they caused first hand. They earned it.

[quatrops]

We could do away with all the waste and silliness of these arguments if we followed the lead of the rest of the civilized world and abolished the death penalty.

That "click" you hear when a death verdict is announced is the cash registers of defense attornies and prosecutors opening wide to receive taxpayer (usually) dollars. The decades-long appeals process gaurantees them a steady income.

The moral argument against the state taking human life obviously has no appeal to death penalty proponents, so I won''t bother with that. But does the fact that tens, or perhaps hundreds, of innocent people have been mistakenly executed in the history of the death penalty in the US not concern you? Does your pathetic desire for retribution and vengence convince you that state execution is still "worth the price"?

And for those of you who call yourselves "Christians", does "Vengence is mine . . . " mean nothing?

The death penalty creates a social and cultural mindset that human life is not universally holy, and the result is a higher murder rate. Look at the murder rate in nations that have abolished the death penalty as evidence of that fact.

[random_radar]

We could do away with all the waste and silliness of these arguments if people would stop committing murders. Why is it civilized to let people commit murders but not put murderers to death?

Obviously murderers think it is okay to kill people, so why would they complain if we do unto them as they did unto others?

Obviously death penalty opponents think it is okay to kill people since they are willing to let murderers kill and then live out their natural lives. Opposing the death penalty is a hypocrisy and a non sequitur.

Civilized societies do not tolerate murder. Murderers have forfeited their right to live and should be put to death. It is not a question of deterrence, it is a matter of justice. Civilized societies are just societies who punish crime.

[rasabaka]

Kill them the same way they killed their victim...

[okole4]

I personally think they should be dragged behind a pickup untill they are dead.

[quatrops]

If you want to understand why the US has the highest murder rate of ANY of the developed, "civilized" nations of the world, read the earlier comments by okole4, rababaka, random_radar (particularly specious), and jjp735i. Their attitudes about the sanctity and holiness of human life and their revenge/retribution-centered eye-for-an-eye thinking tells it all.

They are more concerned that the state follow the mentality and anti-social behavior of murderers rather than set an example of what "civilized" means.

Not well that none address the question of erroneous convictions and executions. I would maintain that ONE "mistake" in a century would argue against the death penalty. How many are "OK" with you, random_radar, as an "acceptable" price to pay for the principle that YOU call "just and civilized".

And provide for us, please, examples of any other "just and civilized" nations that use execution to exact "justice". China? Saudi Arabia?

When will we learn that it is not what the death penalty says to murderers but what it says about us as a people that is important?

Sure, drag them behind a pickup truck. Put it on prime time TV. Do you REALLY believe that will cut down the murder rate? Or, in your fascination with barbaric behavior, do you really care?

[adiant-2009]

To me it just looks rediculous, to put it mildly, that while capital punishment has become such a despicable penalty before the eyes of so many countries in the Wester Hemisphere, our Supreme Court is busy determining HOW TO KILL. If it was not because it is such a serious legal and moral issue, it would be laughable. There is no doubt that we are witnessing the demise of the leadership of this country of ours, that in past times was deemed so cherishable. Not anymore, friends, not anymore!

[quatrops]

Thanks for your input, adiant! It''s reassuring to know there is at least one more of us out there that understands what "civilized" and "justice" means.