May 2008 | Issue 45

The death machine restarts
Liliana Segura

By the time this issue of the New Abolitionist goes to print, the American death row machinery may have already taken its next victim.

 

On April 16, the U.S. Supreme Court handed down a long-awaited decision in the case Baze v. Rees, a historic look at lethal injection as it is carried out in 35 out of 36 death penalty states. The judges' task was to decide whether or not the three-drug combination that is used to kill death row prisoners constitutes "cruel and unusual punishment," violating the Eighth Amendment.

 

The Court had announced it would take the case last fall, on September 25; that day saw the country's final execution of the year, in Texas. In the next seven months, not a single prisoner would be executed. Tortuous last-minute stays of execution aside, it was a glimpse into what the country might look like without the death penalty.

 

But the "de facto" moratorium, as it was commonly called, ended with the Supreme Court's decision on April 16.

 

In a 7-to-2 ruling, the justices upheld Kentucky's lethal injection protocol, concluding that defense attorneys for death row prisoners Ralph Baze and Thomas C. Bowling had not proven that their clients face a "substantial or imminent" risk of suffering in the execution chamber.

 

Moreover, wrote Chief Justice John Roberts: "Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of 'objectively intolerable risk of harm' that qualifies as cruel and unusual' under the Eighth Amendment."

 

While in theory, the ruling left open the possibility for challenges to lethal injection in other states, bringing forth such a challenge would put defense attorneys in a perverse Catch 22: A method of execution can be considered cruel and unusual, wrote Roberts, "only where (an) alternative procedure is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain."

 

Most defense attorneys are not in the business of proposing alternative methods of murdering their clients. Lethal injection is now insulated by a precedent that will be hard to overcome.

 

Whatever legal avenues do remain for prisoners to bring forth appeals based on lethal injection, they are unlikely to help those facing death, particularly in states like Virginia, whose Democratic governor, Tim Kaine--a self-proclaimed Catholic and death penalty opponent--was the first to announce the state would lift its temporary hold on state-sanctioned killing, hours after the ruling came down.

 

In Georgia, one week after the decision, state officials announced the first actual execution date, "the first of several" likely to take place in the coming months, according to the Associated Press. The prisoner, William Earl Lynd, is scheduled to die at 7 p.m. on May 6. Other states poised to resume executions include Florida and Alabama. "We're pleased," Clay Crenshaw, the head of Alabama's capital litigation division, told the AP. "Executions will resume very shortly...We'll take every step to ensure that will happen."

 

While the ruling was a clear disappointment to the abolitionist movement, some anti-death penalty groups said they nevertheless welcomed the chance to get back to work without the distraction of a messy legal battle over execution methodology. "We're almost relieved at the Baze ruling," read a statement on behalf of Equal Justice USA. "Now we are able to focus the debate back to where it should be: does the death penalty serve the cause of justice?"

 

Everyone committed to the cause of abolition can agree that the death penalty does not serve justice. But there's no relief in this ruling for people on death row or their family members, who do not need a Supreme Court decision to tell them whether the death penalty is cruel and unusual.

 

Much has been made of the opinion of Justice John Paul Stevens in Baze, who after more than 35 years on the bench, came out forcefully against the death penalty, calling it "anachronistic" and writing: ''I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol...but also about the justification for the death penalty itself."

 

Yet Stevens also ruled with the majority, agreeing that in this instance, the defense had not made its case. For prisoners with lives hanging in the balance, such nuanced positions are no comfort, no matter how elegantly they are formulated.

 

As we move forward in the fight for abolition, we must not forget that the death penalty "debate" is the most deadly sort of controversy, one that sacrifices human bodies according to the whims of those in power.

 

The New Abolitionist - May 2008; Issue 45

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