A dead-end debate

IT LOOKED LIKE AN INGENIOUS WAY around the familiar and so far unavailing argument that the death penalty is unconstitutional. Instead of focusing on the what of capital punishment -- state-sanctioned killing -- lawyers for death row inmates would take aim at the how of most executions -- death by lethal injection.

Sure enough, courts began to entertain the argument that lethal injection could amount to cruel and unusual punishment, either because insufficient painkillers were administered or because the physiology of some prisoners made pain-free injection impossible. Even the U.S. Supreme Court ruled that a prisoner could use a federal civil rights law to challenge the lethal injection methods by which Florida proposed to put him to death.

Death penalty opponents were energized by this seeming end run around capital punishment. In February, after California postponed the execution of Michael Morales in response to a federal judge’s ruling, Century City lawyer Stephen Rhode told The Times that states were “hitting the wall in the futile search for a humane death penalty.”

But that wall may be crumbling. Earlier this month, a federal judge in Oklahoma refused to stay the execution of a convicted murderer after the state announced that it would double the dose of a sedative used to block pain when fatal chemicals are injected. Other states are likely to follow suit if the alternative is a moratorium on executions. Beyond that practical reality, challenges to lethal injection are a sideshow in the debate about whether capital punishment as it exists today violates the 8th Amendment’s ban on “cruel and unusual punishments.”

The phrase “as it exists today” is necessary because that is the benchmark properly used by the Supreme Court in 1972 when it struck down state death penalty laws then on the books. In one of the leading opinions in that case, Justice Potter Stewart wrote that the legal systems of the time permitted the death penalty to be “wantonly and freakishly imposed.” Stewart noted that “these death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”

Although the court later upheld revised death penalty statutes, Stewart’s insight remains apt. The death penalty in 2006 is still cruel and unusual punishment in part because only a fraction of convicted murderers are put to death -- some because they live in a particular state, others because they had a bad lawyer -- and even then execution comes years or decades after conviction. (Most of the death penalty cases decided by the Supreme Court in its recent term involved murders committed in the 1980s.)

In the real world, capital punishment is cruel and unusual whether death is delivered by an electric current, a hangman’s noose or a chemical cocktail. That is the argument that death penalty opponents need to be making.