By: Todd Knode

The Supreme Court earlier this week ruled that executions by lethal injection are not a cruel an unusual punishment, which would be prohibited by the 8th Amendment, partly because it is currently the most humane way to execute a condemned criminal. The plurality opinion concluded that it may be cruel and unusual if a more humane form existed and a state did not take steps to implement it, but currently no method exists which is more humane. Because this conclusion was not definitive about the process of an execution the continuing capital punishment cases courts may hear may continue to be dominated by political arguments, and not legal ones.

The two prisoners who brought the case Baze v. Rees did not argue that their pending executions are unconstitutional; they argued that the method the state uses may be unconstitutional. The prisoners agreed that if done successfully lethal injection is humane but argued that if it is done unsuccessfully lethal injection may cause undue pain and suffering, rendering it inhumane, and thus cruel and unusual. The Supreme Court dismissed this argument partly because of the lack of supporting evidence and the lack of an alternative method of execution.

The danger this decision creates is that our court system is supposed to adjudicate only legal questions, not political or moral ones. What is politically correct has long been held to be the province of elected legislatures, who write the law. The courts are only supposed to interpret the law. The decision in Baze may require courts in the future to determine the level of humaneness provided by several types of executions.

How is a judge supposed to determine that it is more humane to execute someone through lethal injection, asphyxiation in a gas chamber, electrocution or some future type of execution? Part of the problem is the test itself. The dictionary defines “humane” as being characterized by a person’s tenderness, compassion or sympathy; or a person’s concern to alleviate suffering. A judge may now be required to judge a method of execution based on their own personal beliefs, and whether a judge personally dislikes a law should be irrelevant to their legal opinion.

The most accurate measure of society’s level of tenderness and compassion is not through a handful of unelected judges but through elected representatives, who by their larger number are more likely to represent our society’s diffuse backgrounds. In his concurring opinion Justice Alito states, “Lethal injection was adopted by the Federal Government and 36 States because it was thought to be the most humane method of execution.” The federal government and these states adopted lethal injection because their respective legislatures passed a law, not because a court told them to.

The ruling may also require a type of execution that causes the least amount of suffering. The Constitution forbids cruel or unusual punishment but it does not forbid punishment that makes a person suffer. If a punishment does not cause any suffering it would probably not be deemed a punishment.

In Justice Ginsburg’s dissent she argues that a legislature’s “standards of decency” may determine the constitutionality of that state’s method of execution. In Justice Scalia’s concurrence he asserts that there are issues that are “inherently subjective and insusceptible of judicial review.” A state legislature’s standard of decency or level of compassion may be an area of the law that is inherently outside of a court’s area of review.