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.
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