Death Penalty, SCOTUS, Lethal Injection

For a number of reasons I am opposed to the death penalty in all circumstances. Quickly I will state that the death penalty does not act as a deterrent to future crime. That as it is currently administered it is applied to minorities and the poor in greatly disproportionate numbers. That life in prison without parole is a less costly alternative than execution and achieves the desired ends - permanent removal of the criminal from society. That it is an irreversible punishment and should not be administered at a time when more and more evidence of the numbers of innocent men and women on death row is coming to light. You can try to justify it on grounds of pure retribution and revenge. Revenge, however, is not justice and our justice system is not and (should not be) used as a means of extracting revenge against one party for the emotional benefit of another.

I was disappointed but not surprised to see the Supreme Court uphold the practice of lethal injection yesterday in the case of Baze v. Rees. It is a complicated decision, with the majority holding fracturing along several different lines.

If you hold my position on the death penalty though there is one heartening development you can take from the case. Scott Lemieux at LG&M explains,

For the first time since the nearly-retired Harry Blackmun, the Supreme Court now has a justice who believes the death penalty to be categorically unconstitutional under the Eighth Amendment.

Indeed, Justice Stevens explains in his dissent: (emphasis mine)

Finally, given the real risk of error in this class of cases, the irrevocable nature of the consequences is of decisive importance to me. Whether or not any innocent defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses. The risk of executing innocent defendants can be entirely eliminated by treating any penalty more severe than life imprisonment without the possibility of parole as constitutionally excessive.

In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment."

I, like Scott (and apparently Justice Scalia), am not convinced that the 8th Amendment ban on cruel and unusual punishment actually applies to capital punishment. There are arguments to be made and I am open for convincing but as it stands I think the stronger arguments against the death penalty are that as it is applied today it is unconstitutional (for the host of reasons I stated previously). Still, to have someone on the Supreme Court with a genuinely leftist position on the issue of the death penalty, as opposed to a milquetoast center-left position, is a positive development.

Unfortunately the court continues it's severe rightward tilt on matters of business, labor and criminal justice generally. But we have to take our small victories where we can get them, no?