The Supreme Court ponders whether to pull the plug on lethal injection.

Oral argument from the court.
Jan. 7 2008 7:44 PM

Killing Me Softly

The Supreme Court ponders whether to pull the plug on lethal injection.

(Continued from Page 1)

Like Scalia, Englert doesn't mince words. If the executioners screw up, he says, you don't need a doctor on hand to detect it. "The prisoner would be awake and screaming." Even an untrained warden "can tell the difference between someone who's asleep and someone who's awake and screaming."

Stevens reminds Englert that Kentucky law requires a single overdose of barbiturates to euthanize even animals. How can animals be treated more humanely than humans? Englert says that's merely because the veterinarians told the state legislature it was a good idea. He dismisses the catalog of botched executions in the record as rather trivial—the result of technicians taking too long to find a vein, or technicians missing a vein, or inmates "showing muscle movement."


At this point, even Stevens concedes that "the record is very persuasive in your favor." Stevens is, however, still "terribly troubled" by the use of that second drug, which serves no purpose other than to mask what may be excruciating pain. Englert reiterates that the paralytic drug serves to "dignify the process." Presumably by cutting down on unsightly inmate thrashing. And he warns, a la Roberts, that for the court to create a new constitutional rule requiring an overdose of barbiturates is to ensure that "the next advocate will come along and say the protocol is unconstitutional because it fails to protect the dignity" of the prisoner.

Deputy Solicitor General Gregory Garre gets 10 minutes to represent the Bush administration, which sides with Kentucky. He spends most of that time allowing the justices to fight among themselves over how to make this much-anticipated case go away with any finality. Some of the liberals want to remand it to the lower courts for a comparative analysis of whether the three-drug protocol is indeed worse than an overdose of barbiturates. "Should we send it back [to the Kentucky courts] for further hearing?" fusses Breyer.

"If we don't do something like that, another case is going to come along, and we'll be right back here again," Souter says. He's advocating—bizarrely—that the court should more or less forget about the facts before it and just "get this issue decided." Scalia reminds everyone that another path to "get this issue decided" is to simply determine that "if the protocol is properly executed, there's no risk."

So that's the way the so-called moratorium will end. Tethered as it was to the slender reed of the brutality of lethal injections, the death penalty may come roaring back this summer if the court decides this case for Kentucky. There are so many real problems with the death penalty—racial disparities and inadequate trial counsel and sloppy crime labs. Anyone who thought those problems might be solved by inducing a sweeter sleep was probably dreaming anyhow.



The World’s Politest Protesters

The Occupy Central demonstrators are courteous. That’s actually what makes them so dangerous.

The Religious Right Is Not Happy With Republicans  

The XX Factor
Oct. 1 2014 4:58 PM The Religious Right Is Not Happy With Republicans  

How Did the Royals Win Despite Bunting So Many Times? Bunting Is a Terrible Strategy.

Catacombs Where You Can Stroll Down Hallways Lined With Corpses

Homeland Is Good Again! For Now.


Operation Backbone

How White Boy Rick, a legendary Detroit cocaine dealer, helped the FBI uncover brazen police corruption.


How Even an Old Hipster Can Age Gracefully

On their new albums, Leonard Cohen, Robert Plant, and Loudon Wainwright III show three ways.

The One Fact About Ebola That Should Calm You: It Spreads Slowly

Piper Kerman on Why She Dressed Like a Hitchcock Heroine for Her Prison Sentencing

  News & Politics
Oct. 1 2014 7:26 PM Talking White Black people’s disdain for “proper English” and academic achievement is a myth.
Oct. 1 2014 2:16 PM Wall Street Tackles Chat Services, Shies Away From Diversity Issues 
Oct. 1 2014 6:02 PM Facebook Relaxes Its “Real Name” Policy; Drag Queens Celebrate
  Double X
The XX Factor
Oct. 1 2014 5:11 PM Celebrity Feminist Identification Has Reached Peak Meaninglessness
  Slate Plus
Behind the Scenes
Oct. 1 2014 3:24 PM Revelry (and Business) at Mohonk Photos and highlights from Slate’s annual retreat.
Brow Beat
Oct. 1 2014 6:39 PM Spoiler Special: Transparent
Future Tense
Oct. 1 2014 6:59 PM EU’s Next Digital Commissioner Thinks Keeping Nude Celeb Photos in the Cloud Is “Stupid”
  Health & Science
Oct. 1 2014 4:03 PM Does the Earth Really Have a “Hum”? Yes, but probably not the one you’re thinking.
Sports Nut
Oct. 1 2014 5:19 PM Bunt-a-Palooza! How bad was the Kansas City Royals’ bunt-all-the-time strategy in the American League wild-card game?