Delving into death

In a case that has put executions across the country on hold, the U.S. Supreme Court today will consider whether current procedures for lethal injection create such a risk of pain that they violate the Constitution’s ban on cruel and unusual punishment. But even if the justices answer yes to that question, they will only be “tinkering with the machinery of death,” as the late Justice Harry Blackmun once put it. It’s past time for the court to conduct a more searching analysis of capital punishment in America, a penalty that is imposed so unevenly that it mocks the court’s motto of “Equal Justice Under Law.”

Opponents of capital punishment -- including this page -- can only welcome the fact that the controversy over lethal injection led to 40 stays of execution last year. Paradoxically, many of those stays will be lifted even if the court rules in the Kentucky case being argued today that the current three-drug “cocktail” used in lethal injections is unconstitutional because it creates an “unnecessary risk of pain and suffering.” If animals can be put to death painlessly, so can human beings. The penalty is unlikely to disappear because a particular procedure offends the Constitution.

Although some states -- most recently New Jersey -- have outlawed capital punishment, 36, including California, allow it. A nationwide Gallup Poll conducted last October found that 69% of respondents supported the death penalty. But those numbers don’t tell the whole story about whether the death penalty as it exists in 2008 reflects “evolving standards of decency,” the standard the Supreme Court has employed to determine whether a form of punishment is cruel and unusual. As Times staff writer Henry Weinstein noted in an article last month, projections suggested that 2007 marked a decline not just in executions but also in death sentences.

That isn’t the only indication that Americans, including judges, are increasingly uneasy about capital punishment, both on moral grounds and because of the potential for miscarriages of justice. Many death sentences are never carried out, appeals drag on for years (in California, the average time between sentence and execution is 17.2 years) and whether a murderer is put to death depends less on the gravity of his crime than on whether he committed it in a particular state or was represented by a decent lawyer.

The result is a dramatic disconnect between public support for the death penalty in the abstract and the way the ultimate penalty is (or isn’t) carried out. In 1972, when the Supreme Court invalidated death penalty laws then on the books, Justice Potter Stewart wrote that “these death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” If the court were serious about subjecting capital punishment to constitutional scrutiny, it would reach the same conclusion about the death penalty in 2008 -- regardless of the contents of a lethal-injection “cocktail.”