Executions on Hold

The Stays of Execution in Virginia, by the U.S. Supreme Court, and Georgia by the Georgia Supreme Court, added to the current holds in place in a host of other states including California, Florida and Texas, effectively bring executions through Lethal Injection to a halt until the U.S. Supreme Court rules on Baze v. Rees, a case from Kentucky which claims that Lethal Injection is cruel and unusual punishment.

This of course means that all executions in the U.S. are effectively brought to a halt as just about all executions (153 of the 155 in the last three years) in the U.S. are through Lethal Injection.

So what are the Supremes going to decide?

They could decide that Lethal Injection is not cruel and unusual punishment and is therefore perfectly constitutional. That would reopen the floodgates and effectively shut the door on further claims to this effect until new scientific evidence is found. A decision of this stripe would be a disaster and, as far as I can see, totally unjustified.

They could come to a very narrow decision that the Lethal Injection procedures in Kentucky have problems which need to be rectified but that Lethal Injection in general is allowed. This would trigger an explosion of law suits claiming issues in other states similar to the issues in Kentucky. This strikes me as a wildly impractical decision so I suspect that it’s rather unlikely.

They could decide that Lethal Injection, as currently practiced, is cruel and unusual punishment and therefore illegal, but that the Death Penalty is, in general, constitutional. This would effectively end the Death Penalty in most states until alternative methods could be defined. I suspect that most states outside the South, and even a few within the South, wouldn’t bother and would either leave the Death Penalty suspended indefinitely, such as is the current case in New York, or formally abolish it. Of course, every new method defined, or any of the old ones such as electrocution, hanging or the firing squad, reinstituted or brought into greater use, would be immediately challenged.

Or they could decide that the Death Penalty, given its failure as a deterrent, ineffectiveness and wildly varying application across the country, is itself cruel and unusual punishment. Yes this is possible even given the conservative nature of the current court because the conservative position on this question is a bit murky. Many Conservatives are against the Death Penalty and most religions condemn the Death Penalty as much as they condemn Abortion Access.

The Catholic Church in particular is anti-Death Penalty and, if I remember correctly, five of the Supremes are Catholics. Not that they would let their personal beliefs impact their decision (*cough, cough*).

So, what do I think is most likely? I haven’t got a clue. Predicting U.S. Supreme Court decisions is tricky even for those who understand the law and the process well and I’ll admit that I don’t.

Obviously I hope that they will strike down the Death Penalty completely but I would settle for declaring Lethal Injection cruel and unusual punishment.

The good news is, that whatever they decide, it won’t be until next year some time so at least for the moment executions should cease.