I find it interesting that Stevens concluded his concurrence by finding the death penalty unconstitutional, yet still agreed to uphold Kentucky's procedure under the court's precedents.
And it looks like we have three competing tests: Roberts's "substantial risk of serious harm," Thomas's "deliberately designed to inflict pain", and Breyer's (and the dissent's) "untoward risk." Stevens and Scalia just snipe back and forth about the constitutionality of the death penalty as a whole without presenting separate tests.
[This message was edited by AndreaW on 04-16-08 at .]
Posts: 1114 | Location: Waxahachie | Registered: December 09, 2004
The issue of whether the Texas protocol for administering lethal injection violates the Eighth Amendment is already pending before the Court of Criminal Appeals.
Last Fall (after the granting of the cert petition in Baze v. Rees), the Court ordered both the AGs Office and Tarrant County brief the issue in response to a writ of prohibition filed by Heliberto Chi.
These days, when one speaks of a "war without end," the reference is usually to Iraq. But in the legal world, the phrase also provides an apt description of the five-decade-long fight over the constitutionality of the death penalty.
Well, it sure makes it clear that Presidential appointments to the SCOTUS can make a big difference in whether there is a principled application of the law or a series of opinions based on an individual's personal feelings about an issue.
And the 5th Circuit has now concluded that Texas is pretty much like Kentucky and falls into the "safe harbour" provided by Baze. To read the opinion (in amazing detail over the method for lethal injection), click here.
The "science" that purports to demonstrate that the condemned may not be properly anethestized is pretty specious. I wrote an article on it for the Society of Forensic Toxicologists a few years back and reproduced it as a brochure on my website. If you are interested, here is the address for the PDF download.