A Short Note on the Death Penalty- The Supreme Court Oral Arguments

Commentary

One of the first, if not the first, issues that captured my passions as a young neophyte liberal politico was the fight against the death penalty. This fight seems like a never-ending battle that has had its own ebb and flows. In my youth here in Massachusetts that fight reflected the fact that no one had been executed in the state since 1947, and we wanted to keep it that way. It also reflected for me personally a fight in memory of Sacco and Vanzetti, the two Italian anarchists framed and executed in the 1920’s by this very same state of Massachusetts. Since then there have been a couple of serious attempts (one almost successful) to reimpose the death penalty. Current Republican presidential candidate and ex-Massachusetts governor Mitt Romney attempted to lead one of those efforts. He failed.

The ebb and flow of the fight against the death penalty here has also been reflected nationally as there have been periods when more states added this statute to their books, especially for heinous crimes directed at particular groups of persons like governmental officials or their agents. Lately with the successes of the Innocent Project and better scientific methods, such as DNA testing, that will stand up in court there has been something of a slow down in that trend. Recently New Jersey banned the penalty and others may follow.

This brings up today’s subject, which is a little comment on the work of the United States Supreme Court. Last week the Court agreed to accept a case to determine whether any crime other than murder, like rape, can be considered a capital crime and therefore subject to the death penalty statutes for punishment purposes. Most importantly, on Monday January 7, 2008 the Court heard oral arguments on the question of whether three dose legal injection, a method used by most of the 37 states that have the death penalty on their books, is cruel and unusual punishment under the United States Constitution. A moratorium, of sorts, on executions in the states has been in effect nationally pending a decision in this case.


If ever a death penalty opponent needed ammunition for the argument against the death penalty a reading of the transcript of the oral arguments in this case is all that is required. Getting down to the technical details of the process of injection and whether the subject human being is, in effect, being tortured by the state before taking his or her life is an almost surreal and Kafkaesque experience. That will, however, probably not deter this august Court from finding that such procedures are not cruel and unusual. The original intent theorists like justices Scalia and Thomas, aided by their dear friends justice Kennedy and the two Bush appointees, will find that anything short of drawing and quartering, a common practice in the 18th century, does not “shock the conscience” of humankind these days. Thus, our fight goes on. Abolish the Death Penalty Now!