Lethal Deflection

Lethal Deflection

Lethal Deflection

The XX Factor
What Women Really Think
Oct. 28 2010 10:40 AM

Lethal Deflection

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On Tuesday night, the U.S. Supreme Court, in a 5-4 decision, approved the execution of an Arizona prisoner, Jeffrey Landrigan, who was put to death a few hours later. The last-minute hang-up was the result of a nationwide shortage in one of the three drugs used in the "cocktail" with which Arizona administers lethal injection. Sodium thiopental is an anesthetic meant to cause sleep and prevent pain before the other drugs are administered. But because it’s no longer being manufactured in the U.S., federal District Court Judge Roslyn Silver stayed Landrigan’s execution , finding that Arizona officials had been squirrely about their source of the sodium thiopental and amid concerns that it was safe and effective . A federal appeals court agreed.

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But in an opinion Tuesday signed by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, the court allowed the execution to go forward, finding "[t]here is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe. The district court granted the restraining order because it was left to speculate as to the risk of harm. … But speculation cannot substitute for evidence that the use of the drug is 'sure or very likely to cause serious illness and needless suffering.' " Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented without a published opinion. Arizona officials finally explained that the sodium thiopental they were using had come from Britain .

In 2003, Justice Anthony Kennedy, in an opinion striking down Texas’ gay-sodomy laws, cited a committee advising the British Parliament, the European Court of Human Rights, and the European Convention on Human Rights. In 2005, Kennedy, writing the majority opinion in a case striking down capital punishment for juvenile offenders, cited the U.N. Convention on the Rights of the Child. Acknowledging how few countries still permit the death penalty for juveniles, Kennedy also noted that "[i]t is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty." Some of his conservative critics immediately called for his impeachment .

Just to be clear, then, U.S. Supreme court justices may not properly cite to foreign law in death penalty cases but have no problem at all with the use of foreign lethal injection drugs for executions.

Photograph of a lethal injection room by Wikimedia Commons.

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.