Thursday, May 8, 2008

U.S. Supreme Court Continues To Make
Rulings Inconsistent With Basic Human
Rights, Decency, And Justice
Part 1

By Jeff Deskovic

As I wrote a few weeks ago in a two part series, the entire appellate process, beginning with the state court system all the way through
the federal courts, is woefully inadequate to protect the wrongfully convicted. A portion of that article dealt with the fact that the United
States Supreme Court routinely does not do ensure that justice is done in each case, either because of rulings that are inconsistent with justice, fairness, and basic human rights, or, more usually, by simply ducking the responsibility to rule on issues at all merely declining to hear cases.

On April 17, 2008, it once again fell short of living up to it’s awesome responsibility. Constitutionality Of Lethal Injection The case Baze v. Rees concentrated on the Constitutionality of the lethal injection procedure, the form of execution used in most states that engage in capital punishment. Specifically, two Kentucky prisoners claimed that the method of lethal injection posed a significant enough risk of misadministration and excruciating pain that its use, even when properly administered, constituted cruel and unusual punishment, banned by the Eighth Amendment to the US Constitution.

At the heart of the Baze case was a hypothetical scenario vividly portraying what Baze might experience if the execution protocol was not
followed precisely. Under the three drug protocol used in Kentucky, the first drug administered is a barbiturate that is intended to render the
inmate unconscious. Next, the inmate receives a dose of a drug that causes total paralysis. Finally, potassium chloride is injected to stop the

The concern is that if the first drug fails to work properly the inmate will remain mentally aware as the other drugs are injected. Medical
experts agree that a condemned inmate will endure unbearable pain and suffering from the injection of the potassium chloride. But because
he has just been paralyzed by the second drug, the inmate will be unable to show any sign of distress. To an observer, the inmate may appear to have gone peacefully to sleep. But some experts say the inmate may, in fact, be fully conscious and in agony during his final moments of life.

A split court voted 7-2 to uphold Kentucky’s use of a three-drug protocol, saying the state has adequate safeguards to ensure inmates won’t endure significant pain. Two inmates argued that the state’s procedure violated the Constitutional ban on cruel and unusual punishment. “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,’’ wrote Chief Justice John Roberts, the Court’s lead opinion.

Justices Alito and Kennedy concurred with Roberts’ opinion. Justices Scalia, Thomas, Stevens and Breyer, all said they agreed with the result, though not with Roberts’ reasoning. Thomas, writing for himself and Scalia, said that an execution method is unconstitutional “only if
it is deliberately designed to inflict pain.’’ Dissenting Justices Ginsburg and Souter, along with Breyer (who had agreed with the decision), said Roberts’ opinion made it too diff-icult for inmates to challenge an execution method as unconstitutional.

All said they would outlaw execution methods that create “untoward, readily avoidable risk of in-flicting severe and unnecess-ary pain.’’
Breyer said the Kentucky inmates failed to show that risk existed, while Ginsburg and Souter said they would return the case to the lower courts to reconsider the issue My views on the death penalty are fairly well-known to readers of The Guardian. It brings with it the
inevitability that innocent people will be executed. In New York, over a stretch of ten months, six people who had been convicted of murder
had been proven innocent by DNA, in cases which if there had been a death penalty, they would likely have received it.

If I personally had been eighteen rather than sixteen at the time of my wrongful conviction, I would have received the death penalty, my appeals having been exhausted in 2001 and not being cleared until 2006, I would never have lived long enough to prove my innocence.
Aside from that, the racism involved with the death penalty, the arbitrariness with which it is decided who gets it; and the drain of financial resources that it creates, not to mention the continued pain and suffering of victim family members who have to keep reliving it through
the increased media attention cases bring throughout the appeals process, and the classism involved in that rich people are never sentenced
to death, all make the death penalty something society would be far better without.

That having been said, this case is about methodology of lethal injection. The case of Angel Diaz, ex-ecuted on Dec. 13, 2006, in Florida,
was an example of the pain and suffering that can take place as the result of lethal injections. Diaz bucked and grimaced during his execution,
which took more than twice as long as usual. An investigation determined corrections employees pierced needles through his veins, causing the chemicals to spray into his flesh — prolonging his death and very likely causing great pain. What’s even more frightening is the fact that in most cases, it is impossible to tell what type of suffering the condemned is undergoing, because he or she is unable to move.

The fact that it has been banned in euthanasia of animals, an argument raised to the court, speaks volumes to the inhumanity in applying this to human beings. Yet the United States Supreme Court had no problem in signing off on that. In the course of the opinion of the case, the Judges made a variety of statements that are disturbing. Justice Stevens wrote “The imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purpose. A penalty with such negligible
returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment”. If the penalty is cruel
and unusual, then the method must be as well. Yet he betrays his own conscience and votes with the majority in rejecting the challenge!!

Chief Judge Roberts wrote: “If [the paralyzing agent] pancuronium is too cruel for animals, the argument goes, then it must be too cruel
for the condemned inmate.” Roberts further observerved, “Whatever rhetorical force the argument carries ... it overlooks the States’ legitimate interest in providing for a quick, certain death.” Simply put, if it has been rejected for animals, how is it that basic human decency does not require that it be banned for humans? This is no mere “rhetoric”. It is instead a legitimate point that has yet to be ruled on regarding the merits and refuted. It instead has everyday flesh-and-blood implications. There are currently thousands of prisoners sitting on death row throughout this country.

Justice Scalia wrote, “There is a risk that an innocent person might be convicted and sentenced to death—though not a risk that Justice Stevens can quantify, because he lacks a single example of a person executed for a crime he did not commit in the current American system.”
Scalia shocking statement overlooks a variety of matters. Those sentenced to death are most often poor people who cannot afford to
hire quality lawyers and investigators to find additional evidence of innocence. There is therefore no telling how many innocent people
have been executed. In addition, most people who have been wrongfully convicted do not have anyone who is free to champion their cause.

Lacking that when they are still alive but awaiting execution, they certainly do not suddenly get advocates once they are executed. Further, the fact that there have been 215 DNA exonerations throughout the country, and many others achieved through means other than DNA shows that the system is broken. DNA has only been around since the late 1980’s. There is no telling how many people were
executed because the technology did not exist. What’s more, it is only available in 10% of all serious felony cases. There have been plenty of cases, where, in hindsight, people have looked back and expressed serious doubts about the person.

I also take issue with Justice Thomas’ statement, joined by Scalia, which states that “a punishment is only cruel and unusual if it is deliberately designed to inflict pain.” What if something was not intended to purposely inflict pain, but it had that effect? Would that be okay? Justice Roberts wrote “Kentucky had established a number of safeguards to prevent botched executions. They included requiring
members of the injection team to have at least one year of professional experience as a certified medical assistant or paramedic. In addition,
the state requires the warden and deputy warden to be present in the execution chamber and available to watch for problems. In light of
these safeguards, we cannot say that the risks identified by [the inmates] are so substantial or imminent as to amount to an Eighth Amendment violation.”

Roberts continues, “Much of the [inmate’s] case rests on the contention that they have identified a significant risk of harm that can be
eliminated by adopting alternative procedures. But the Eighth Amendment does not require the invalidation of execution methods whenever
a slightly or marginally safer alternative is identified. Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining ‘best practices’ for executions”. My response to this statement
is that if a state chose not to adopt a safe alternative to a method that was used, then that would certainly trigger a violation of the cruel and
unusual clause of the Constitution. The fact that the Chief Judge of the United States Supreme Court would not see fit to step into such a case, is very troubling.

The U.S. Supreme Court, once a proud upholder of Constitutional Rights as in the Warren era, has sadly evolved into little more than an institution that will sign off on anything, with no conscience, in which right and wrong, guilt and innocence, human rights, and basic
human decency, are seen as unwarranted.

The Court can no longer be counted upon by anyone other than the State, it’s agents, those politically connected, and the wealthy. This is true to such an extent that when, on rare occasions, they do the right thing, it is regarded as an anomaly, rather than the other way around. How I long for a day when the court system is changed and, instead, is truly regarded as ‘The Halls Of Justice’, and when our Constitution can once again be regarded as something more than Swiss cheese with so many holes that the exceptions outweigh the Rules.

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