The Liberty Papers

Yesterday, executions were put on hold in two states over concerns about the manner in which the most common form of execution is administered:

MIAMI, Dec. 15 — Executions by lethal injection were suspended in Florida and ordered revamped in California on Friday, as the chemical method once billed as a more humane way of killing the condemned came under mounting scrutiny over the pain it may cause.

Gov. Jeb Bush (R) ordered the suspension in Florida after a botched execution in which it took 34 minutes and a second injection to kill convicted murderer Angel Nieves Diaz. A state medical examiner said that needles used to carry the poison had passed through the prisoner’s veins and delivered the three-chemical mix into the tissues of his arm.

In California, a federal judge ruled that the state must overhaul its lethal-injection procedures, calling its current protocol unconstitutional because it may inflict unacceptable levels of pain.

These are the latest developments in a year that has seen several challenges to the way executions are conducted in the United States:

In Maryland, a federal judge is considering the constitutionality of lethal injection. A ruling is expected next year. Officials in Missouri and South Dakota have delayed executions while lethal injection is reviewed. Oklahoma altered its procedure so that the prisoner receives more anesthesia before being executed. And in North Carolina, a federal judge ordered that a brain monitor be used to make sure an inmate is unconscious before the final drug is administered.

In June, the U.S. Supreme Court allowed another Florida death-row inmate to challenge that state’s lethal-injection procedures through a federal civil rights lawsuit, a ruling considered a procedural victory for opponents of the death penalty.

I’ve generally always been supportive of the death penalty in appropriate circumstances, but I’ve recently been having second thoughts that lead me to wonder if the state really does have the right to execute even the most violent of murderers. There are two basic areas that concern me, one based on the Constitution, and one based, in part, on what I know the legal system is actually like rather than what it should be.
When most people think of Constitutional arguments against the death penalty, they think of the Eighth Amendment and its prohibition on “cruel and unusual punishment.” There are some who argue that any form of the execution is inherently cruel and unusual and, therefore, unconstitutional. Given the context in which the Eighth Amendment was adopted, though, it is clear that the Founders did not intend to outlaw executions. Executions, and other forms of punishment that we would consider barbaric today existed both before and after the Amendment was adopted. Therefore, it is clear that, in adopting the Eighth Amendment, the Founders did not intend that capital punishment be declared unconstitutional in all circumstances.

The Eighth Amendment is also used by some, including the California Judge referenced in the article above, to argue that certain forms of execution are unconstitutional. Clearly, there are ways that capital punishment could be carried out that are needlessly cruel and which would arguably be barred under the Eighth Amendment. Something that caused prolonged torture and punishment would certainly be a candidate. As would a form of execution that shocked the public conscience, such as the type of beheading common in places such as Saudi Arabia. To argue, though, that the fact that a convict might feel some small degree of pain in connection with an execution makes it per se unconstitutional goes beyond what the Eighth Amendment was meant to address and strays perilously close to the argument that all executions violate the Amendment.

The Constitutional provisions that concern me in connection with the death penalty lie in the Fifth Amendment and Fourteenth Amendment, both of which provide that no person shall be deprived of their life, liberty, or property without due process of law. In theory, every person accused of a capital crime is supposed to be have their rights protected in the same way. In reality, it often doesn’t work out that way. Many Defendants are unable to afford their own attorneys and are, especially at the trial stage, represented by public defenders or court-appointed attorneys who are often either too busy or too incompetent to provide the zealous defense that their client is entitled to.

Take the O.J. Simpson case as an example. This wasn’t a death penalty case, but it was close. Does anyone actually think that Simpson would have walked free if he’d been represented by court-appointed counsel ? If you do, you’re deceiving yourself. Simpson is a free man today because he was able to afford a cadre of lawyers — including two of the best criminal defense attorneys in Los Angeles and a man who has been an icon among criminal defense attorneys nationwide since the 1950s — to defend him. Yes, the prosecution made a lot of mistakes in that case, but if his lawyers hadn’t known to take advantage of them, it wouldn’t have mattered. It pays to get a solid criminal defense lawyer on your side.

I’m not saying that everyone is entitled to have Johnny Cochran and F. Lee Bailey represent them. What I’m saying is that we should have some doubts about the objectiveness of the legal system often depends on what kind of attorney you have, especially when we’re talking about a question of life and death.

Additionally, anyone on either side of the death penalty debate should be concerned with the question of whether even 99.99% assurance of guilt is enough to say it’s okay to kill someone. Sometimes, the legal system gets it wrong, as The Innocence Project and others have shown, innocent people get convicted all the time and, while it’s true that we’ve yet to see a case of someone executed who is later conclusively shown to be innocent of the crime, this level of uncertainty (along with the fact that it’s someone with a court-appointed attorney who is most likely to be wrongfully convicted) should lead us to think twice about just how sure we are that we’ve got the right guy.
When the state kills, it kills in all of our names. Given the way the system really is, perhaps we need to ask ourselves if that’s what we really want.