The Supreme Court’s focus on the administration of death by lethal injection could expose the plethora of problems that come with the death penalty.
That’s the hope of Russ Feingold who’s using the Court’s stay of execution for a Mississippi prisoner to re-introduce his Federal Death Penalty Abolition Act. The Wisconsin Democrat fired off a statement yesterday declaring that, “This de facto moratorium on executions by lethal injection gives us a chance to recognize just how deeply flawed the implementation of capital punishment in this country is.”
Since the Supreme Court effectively legalized the federal death penalty in 1976, death penalty legislation or even legislative oversight has been nearly non-existent. Feingold’s hearing this summer on death penalty implementation was the first of its kind since 2001– the last time a Democratic majority enabled Feingold to chair a Senate committee.
But there are indications that Feingold may no longer be the lone wolf in Washington howling about the death penalty’s moral and practical problems. His hearing this summer actually made front-page headlines when fired U.S. Attorney Paul Charlton gave specific examples of the Alberto Gonzales-led Justice Department eagerly pursuing death sentences at the expense of due process. Nationally, executions this year are down to 42, their lowest level in a decade.
Of those executions all but one were done via lethal injection. And the Supreme Court’s stay of execution for Mississippi prisoner Earl Berry was, according to the New York Times, an “indisputable indication” that the Court will stop all deaths by lethal injection until next spring.
That’s when the nine justices argue Baze v. Rees, which will determine if death row inmates can challenge the so-called three-drug cocktail used for executions as a violation of 8th amendment prohibition of cruel and unusual punishment. Some doctors now argue that the drug combination may sometimes result in inmates being paralyzed but not anesthetized, meaning the final moments of their lives are spent in searing pain, unable to move.
While the case will focus on the narrow legal issues of whether such a constitutional claim can ever be brought, it might represent the best chance in years to publicly debate whether the entire enterprise of state-sanctioned killing is cruel and unusual.
Just this week, for example, the American Bar Association released a timely report showing the misuse and outright neglect of DNA evidence in capital cases, racial disparity in death sentences and instances of prosecutorial overzealousness. The findings aren’t new but such reports might at last be heard in the courts and Congress.