On the day when the President of the United States welcomes the Pope to the White House, the long-awaited decision of the US Supreme Court on the compatibility of the lethal injection with the Eighth Amendment to the US Constitution has been handed down. In Baze v Rees, the challenge failed by a vote of 7 to 2 and the decision below (217 S. W. 3d 207 (2007)) was upheld; but the 7 is a fractured majority (I have previewed this case here and here; for full analysis, see the ScotusWiki page on the case; for initial news reaction, see NPR).

Roberts CJ, joined by Kennedy and Alito JJ, concluded that Kentucky’s lethal injection protocol satisfies the Eighth Amendment. In their view, allowing a condemned prisoner to challenge a State’s execution method merely by showing a slightly or marginally safer alternative found no support in the Court’s cases, that it would embroil the courts in ongoing scientific controversies beyond their expertise, and that it would substantially intrude on the role of state legislatures in implementing execution procedures. As a consequence, they held that the petitioners had failed to demonstrate the necessary substantial risk of serious harm, and that Kentucky’s protocol did not constitute an unconstitutional “cruel and unusual” punishment.…

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A few weeks ago, The Economist published a Special Report on Capital Punishment in America entitled Revenge begins to seem less sweet. The theme was that Americans – except in Texas – are losing their appetite for the death penalty. One of the many points in a typically well-written, balanced and informative piece was that

It is now far more expensive to execute someone than to jail him for life; in North Carolina, for instance, each capital case costs $2m more. Ordinary inmates need only to be fed and guarded. Those on death row must have lawyers arguing expensively about their fate, sometimes for a decade or more … The system of appeals has grown more protracted because of fears that innocent people may be executed. Few would argue that such safeguards are not needed, but their steep cost gives abolitionists a new line of attack.

This was graphically illustrated by a story in the New York Times last week, headlined: Capital Cases Stall as Costs Grow Daunting: …

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The BBC are reporting today on yet another death row battle in the United States: Alabama’s fierce death row battle:

If most politicians in Alabama had their way, Tommy Arthur would have been executed more than 20 years ago. … Alabama’s governor has made it clear he wants Arthur to die as soon as possible, and that the current furore over the chemicals used to deliver the ultimate punishment is an annoying distraction.

Although many death penalty abolitionists are viewing the US Supreme Court’s decision to review the constitutionality of the existing chemical cocktail with hope, the fact is that states like Alabama guard their rights very carefully – and few more so than the right to execution.

Last Thursday, I attended an event hosted by the University of Washington and Lee‘s branch of the American Constitution Society, looking at the US Supreme Court’s term just past and at the term to come. David Bruck, of that University’s Law School talked about death penalty cases (which he described as a US Supreme Court “staple, term after term”), including what the BBC story above referred to as “the current furore over the chemicals used to deliver the ultimate punishment”.…

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