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On April 17, the U.S. Supreme Court – by a walloping 7-to-2 majority in Baze v. Reese – declared constitutional Kentucky’s method of death penalty by lethal injection – a combination of three toxic chemicals used as a method of execution in 35 states.

As Justice John Paul Stevens noted disquietedly, one of the three terminating chemicals paralyzes the unsedated prisoner, who is conscious but unable to move, breathe or utter his last cry. Delivering the main opinion of our highest court, Chief Justice John Roberts – with language as bland as if he were ruling on an intellectual property case – wrote:

“Simply because an execution method may result in pain, whether 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). … Some risk of pain is inherent in any method of execution – no matter how humane.”

Agreeing with Roberts, Justice Clarence Thomas, joined by Justice Antonin Scalia, was more bluntly concise. “This is an easy case,” he said, because the only method of execution that would violate the Eighth Amendment, barring cruel and unusual punishment, would be a method “deliberately designed to inflict pain.”


Considering the inmate is paralyzed yet conscious, doesn’t this deliberate infliction of horror in the final moments of an American’s life violate the Eighth Amendment’s “cruel and usual punishment,” by design?

No, say Roberts, Thomas and Scalia.

Also disagreeing is the rest of the Supreme Court majority, including Stevens himself, who went along with the majority because he felt bound by the Court’s previous precedents.

But after 33 years on the Court, Stevens did, however, scandalize Thomas and Scalia by calling for the actual abolition of the death penalty! “I have relied,” he said, “on my own experience in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible or social public purpose. (Such a penalty) is patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

His colleague, Scalia, exploded: “What prompted Justice Stevens to repudiate his prior view and to adopt the astounding position that a criminal sanction, the death penalty, expressly mentioned in the Constitution, violates the Constitution?”

Has Scalia – an “originalist” to whom the Constitution’s language, as written, is strictly determinative – forgotten that our founding document does not include Negro slaves as “free Persons” with constitutional protections? That no longer being the case, the Constitution is not entirely frozen in time.

That the 2008 U.S. Supreme Court continues – by contrast with most civilized nations – to justify the death penalty brings me inexorably to Justice Harry Blackmun’s dissenting opinion in Callins v. Collins (Feb. 22, 1994).

I hope that if this April’s Baze v. Reese decision is discussed in any of our secondary schools or colleges and universities, attention is paid to Blackmun’s awakening after long service on the Court to his responsibilities under the Eighth Amendment in this century:

“I shall no longer tinker with the machinery of death. For more than 20 years I have endeavored – indeed, I have struggled – to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty. … (I recognize) the problem is that:

“The inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution,” Blackmun concluded.

And, as you have witnessed the Roberts Court tinkering with whether the three toxic chemicals used by state executioners around the country are well within the Constitution, keep in mind that in the 1994 words of Blackmun, the Supreme Court still continues to “substitute constitutional requirements” concerning the death penalty “with mere aesthetics.”

That’s the Roberts Court in Baze v. Reese: deciding the chemical aesthetics of killing human beings!

The late Justice William Brennan used to tell me: “I can’t believe that the leader of the free world is going to keep on executing people. I still believe that eventually we become more civilized. It would be horrible if we didn’t.”

On Oklahoma State Penitentiary’s death row, convicted killer Paris Powell said the day after the decision on Baze v. Reese (Newsday): “It’s just official that the death penalty is here to stay forever, really.”

That could depend on how the next president fills vacancies on the Supreme Court. Does John McCain still regard Scalia as his model for a Supreme Court Justice? Does he know that Chief Justice John Marshall declared “a Constitution … is intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs”?


Related special offers:

“Betrayed by the Bench: How Judge-made Law has Transformed America’s Constitution, Courts and Culture”

“Judicial Tyranny: The New Kings of America”

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