Baze and American Capital Schizophrenia

Today the Supreme Court heard oral arguments in one of the biggest cases of the term, Baze v. Rees. Baze, the petitioner, is a convicted murderer currently on death row in Kentucky. The appellate and collateral reviews of his conviction and sentence have come and gone. The issue before the Court is whether the lethal injection procedure used in Kentucky - and every other state (save one) that uses lethal injection, as well as the Federal government - violates the Eighth Amendment prohibition on cruel and unusual punishment.

More specifically, the issue is whether the three-drug protocol used in Kentucky presents a needless risk of causing pain to the condemned during the procedure. The three drugs are administered in such a way that the condemned is first anesthetized, then paralyzed, and finally killed by stopping the heart. If everything goes right, it's a relatively peaceful death. However, if the first drug doesn't work, there's no way of knowing whether the third drug leaves the paralyzed condemned in excruciating pain, unable to react. The legal issues, and the history of the procedure, are complex and fascinating. For a good back and forth on them, see this discussion between a couple law profs.

But that's not what really interests me about the case. What interests me is that in the 21st century we're actually having this debate. This it the ultimate "tinker[ing] with the machinery of death" that Justice Blackmun described. It highlights the weird two-mindedness that Americans have about the death penalty.

As much as I hate to admit it, capital punishment enjoys fairly wide support amongst the public. New Jersey recently made news by being the first state in 40 years (IIRC) to dismantle its death penalty. While many states use it only rarely, others, led by Texas, have a fairly robust death row. Lots of people take the visceral appeal of "an eye for an eye" to heart and feel that the ultimate crime deserves the ultimate sanction. It's a deeply held belief that leads to some allegedly "pro life" folks to support state killing of murderers. So on the one hand, the death penalty is popular and not going anywhere.

On the other hand, the actual execution of the death penalty is shrouded in secrecy and carefully hidden from public view. Gone are the days when crowds would turn out to watch a public hanging. These days, executions takes place in the dead of night deep in the bowels of a prison and are witnessed by a handful of people. That shift to secrecy had been combined with the odd quest to make the execution itself "more humane." Hanging gave way to the firing squad to the electric chair to the gas chamber and, most recently, to lethal injection.

The struggle is to shade the reality of what is going on here - the intentional killing of a defenseless person. Note that "defenseless" is not remotely the same thing as "innocent" or "good" or what have you, but it's an apt description of somebody strapped to a gurney with an IV pumping lethal chemicals into their veins. If all goes well, there's no blood. No struggle. No visible signs of death. The condemned simply slips off to sleep, never to awake.

The result is an odd dissonance in our public mind. We want the death penalty. We want to righteously punish those who kill, but we're a little squeamish about the actual act. Sort of like wars - we want them fought, but prefer the "bravery of being out of range" when it comes to seeing how it really works.

The two halves of the brain of our body politic don't interact, thus we're left with cases like Baze, where the machinery is tinkered with, but there's no discussion about the machine itself. My point is not that we shouldn't care how executions are carried out. It's that the most efficient and "humane" (meaning quickest) ways of doing it - the guillotine, a well-placed shotgun blast to the back of the head, etc. - are bloody and make too obvious what is going on. That we may not be comfortable with that fact means the tinkering must stop.

For more on Baze, you can read the oral argument transcript here, or check out the thoughts of Lyle Denniston, Orin Kerr, and Doug Berman.