One Vote Away From Ending Executions

We may be one Supreme Court Justice’s vote away from ending executions in the United States. The Supreme Court’s decision to hear Glossip V. Gross later this year gives death penalty opponents that hope. This case challenges the constitutionality of Oklahoma’s lethal injection protocols on the grounds they violate 8th Amendment prohibitions against cruel and unusual punishment. Attorneys will likely cite Oklahoma inmate Clayton Lockett’s April 2014 execution to exemplify why Oklahoma’s current form of lethal injection is cruel and unusual punishment. That execution’s observers witnessed the grisly spectacle of Lockett choking and gasping, writhing and grimacing for 43 minutes before he expired. The Court’s four liberal justices will likely rule Oklahoma’s form of lethal injection unconstitutional. Changes in lethal injection protocols since 2008 when the court upheld lethal injection’s constitutionality may convince one other judge to side with the liberal justices and rule lethal injection unconstitutional. Since 2008, European drug companies’ refusal to sell US prisons drugs formerly used in executions such as Sodium Thiopental and Nembutal has compelled states to develop new untested drug combinations to execute death row prisoners. As a result, executions have been carried out without any good idea how these new drugs would interact or their impact more significantly upon the persons on the gurneys. We have witnessed the horrific consequences of states’ ill-considered decisions: persons have become lab rats in states’ grotesque experiments in the putative name of justice. You would think states pursuing justice would want to act transparently. The opposite in true, however. A recently passed Ohio law protects the anonymity of persons involved in carrying out executions and of pharmacies, which provide drugs used in executions. The Virginia Senate has also passed legislation, which would shroud everything about Virginia executions in secrecy and bar Freedom of Information inquiries into executions. The Virginia House hasn’t voted on this legislation, which Minority Leader Richard Saslow (D) sponsored. He acknowledges he doesn’t want to return to the electric chair, and believes secrecy will ensure humane executions. His reasoning belies what most reasonable persons know is true: people act secretly because they know they’re wrong and don’t want to get caught. As officials in Virginia and elsewhere calibrate the right drug combinations to carry out lethal injections, more death row offenders will likely suffer cruel and unusual punishment, which will likely increase the public’s opposition to executions. Growing opposition will compel more states to conclude there isn’t a humane way to kill another person, and states will abandon the death penalty. The Court’s Glossip decision may forestall states’ scrambling to find elusive humane execution methods before concluding they can’t, and I hope Pope Francis and Chief Justice Roberts’ wife Jane influence Roberts to vote to end lethal injection. I hope as a Catholic Roberts is influenced by what the Pope said in October 2014: “It is impossible to imagine that states today cannot make use of another means than capital punishment to defend people’s lives from an unjust aggressor. All Christians and people of good will are called today to struggle … for the abolition of the death penalty.” Furthermore, I hope the man behind the words, who has inspired Catholics and non-Catholics, will also inspire Roberts to strike down lethal injection. If Pope Francis’ words and examples aren’t enough, perhaps his wife Jane will influence Roberts to do the right thing. For many years she has been involved with Feminists For Life, and currently serves as the group’s legal counsel. Feminists For Life opposes capital punishment because they connect it to abortion and euthanasia as “inconsistent with the core feminist principles of justice, nonviolence and nondiscrimination.” If the Pope and Roberts’ wife influence Roberts to side with the Court’s liberal justices to outlaw lethal injection, their decision would likely end executions in the United States because states wouldn’t want to revert to execution methods they don’t view as humane as lethal injection. In almost 40 years since capital punishment’s 1976 reinstatement, the vast majority of the more than 1,400 executions nationally have been carried out against the poor and persons of color in 13 southern states. These state killings haven’t made society safer or better, or brought closure to murder victims’ families. Executions have cheapened human life and degraded all. It’s past time we ended this inhumane practice. I hope Roberts concludes, he, as former Supreme Court Justice Harry Blackmun said, “shall no longer tinker with the machinery of death.”

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