I guess a moratorium, if we get one, is better than nothing

Lorsque nos juristes officiels parlent de faire mourir sans faire souffrir, ils ne savent pas ce dont ils parlent et, surtout, ils manquent d’imagination [i].

(Albert Camus, Réflexions sur la guillotine, 1957)

I’ve been closely following the Supreme Court’s recent decision agreeing to hear a lethal injection challenge arising from Kentucky, Baze v. Rees, on the grounds that it contravened the Eighth Amendment.

There is growing realisation that a condemned prisoner’s suffering is real in many cases, but concealed by the protocol used [ii].

I oppose the death penalty, so I welcome anything that contributes to its abolition. But I still have mixed feelings about this. The very fact that the Supreme Court agrees that the question can be raised is progress, of course. This implicitly means that many other methods until recently regarded as constitutional are unlikely to withstand that test if they are subjected to it again.

On the other hand, looking only at whether the pain associated with a particular method is, or not, acceptable, is hardly a step forward on the way to total abolition in all circumstances, which is currently the position of the European Union. In any case, I very much doubt that it will result in a moratorium in states determined to retain the penalty.

If I’m wrong, and The Court rules that lethal injection is unconstitutional, it will be a while before retentionist states agree on another method: if this happens, they’ll probably remove the paralytic agent and increase the barbiturate dosage.

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  1. Legal officials who talk of killing people painlessly have no idea what they are talking about. []
  2. Thiopental is an ultra-short acting barbiturate that may wear off (this is know as “anesthesia awareness”) and lead to consciousness and an excruciatingly painful death wherein the inmate is unable to express his or her pain because he has been rendered paralyzed by the paralytic agent. []