Yesterday the US Supreme Court heard argument in this case, in which it is argued that lethal injection using a combination of sodium thiopental, pancuronium bromide, and potassium chloride is “cruel and unusual punishment”, contrary to the 8th Amendment to the US Constitution: the argument is, firstly, that the relevant http://www.gooakley.com/ test is whether a punishment involves an unnecessary risk of suffering (the Kentucky Supreme Court had applied a “substantial risk” test); and secondly, the fact that an alternative combination of chemicals could be used which would involve a lower risk of pain means that the risks currently involved in lethal injections in Kentucky must be unnecessary.
The questions before the Court, written briefs submitted in the case, and a transcript of yesterday’s argument, are all available here.
It’s excellent that this material’s so accessible: I hope when we have our own supreme court this side of the water, its proceedings will be as open as this.
The death penalty is, in my book, cruel and unusual treatment full stop….
Yes… unfortunately the court won’t be considering it on that wider basis.
Of course to be fair to the Americans, we must remember that Europe’s human rights protection scheme seems also to have considered the death penalty not to amount to “inhuman or degrading punishment” under article 3 of the ECHR – otherwise Protocol 13 wouldn’t have been necessary.
At the risk of getting into semantics here I wonder how one might define or quantify either ‘unnecessary risk’ or ‘substantial risk’. Both definitions ultimately come down to a subjective view – unless there is some method of comparison and calculation available to American courts.
Further, what is ‘suffering’ particularly when applied to legal killing?
Nonetheless, the whole notion of State killings is, to me, too grotesque to contemplate.