The case is Glossip v. Gross, and the question is about the drug that is supposed to leave the condemned man completely unconscious while another drug kills him. This strange colloquy took place at the end of the argument:
Justice Samuel Alito: If an -- if an anesthesiologist rendered a person completely unconscious, and then the person was burned alive, would that be cruel and unusual punishment?
Robin C. Konrad: Justice Alito, I think the problem isn't rendering somebody unconscious. What the problem is, and what is necessary, is to ensure that the person maintains a -- a deep level of unconsciousness.
Justice Samuel Alito: Yes. So an anesthesiologist is called in to make sure that this person feels no pain whatsoever while being burned alive, and then the person is burned alive, would that not be a violation of the Eighth Amendment anyway?
Robin C. Konrad: It could be. That's not the question, though, before this Court, and the -- the --
Justice Elena Kagan: Because potassium chloride --
Robin C. Konrad: An --
Justice Elena Kagan: -- is kind of like that, isn't it? It's being burned alive from the inside. That's what it is.
Robin C. Konrad: That's exactly what it is, Justice Kagan, but what -- Justice Samuel Alito: But you're not sure that being burned alive -- that you think there are circumstances in which burning somebody at the stake would be consistent with the Eighth Amendment?
Robin C. Konrad: It is --
Justice Samuel Alito: It's an irrelevant point, but you're -- you're not certain about that?
Robin C. Konrad: Well, what I'm saying is that this Court has -- the founders say burning at the stake is unconstitutional. It creates an Eighth Amendment violation. It's cruel and unusual. But in your hypothetical, if there was a way to ensure that that was done in a humane way, there could perhaps be. That -- I don't think that any -- any State would go to try to do that, because we move forward evolving --
Justice Samuel Alito: That's an incredible answer. You think that there are circumstances in which burning alive would not be a violation of the Eighth Amendment? Burning somebody alive would not be a violation of the Eighth Amendment?
Justice Elena Kagan: You see, but potassium chloride is burning somebody alive, it's just doing it through the use of a drug.
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If you say that capital punishment is legal then you have to kill people in some way. Rendering them unconscious is the most human way to do it. If you could then administer a shot, why burn someone alive?
The case deals with the problem of not knowing for sure whether the person is unconscious. He might be feeling this "burning to death" by potassium chloride (which is given after the drug that's supposed to make him unconscious).
Then Alito got off on the subject of unconsciousness not being at the heart of what we're talking about when we talk about cruel and unusual punishment. There's something wrong with burning at the stake, even if the condemned man feels no pain.
Some of this is about how things LOOK vs. how things FEEL.
They are quibbling about the sauce at a BBQ. There should be an out and out prohibition on private executions by the states.
As a country, we must insist that executions be done in the open, and in the simplest way possible.
Hang the person, or shoot the person in the head. In both cases, death is instantaneous.
Cremate the bodies, and return the ashes to the next of kin.
The public, if they tire of such violence, can then decide whether to proceed with these sentences.
There is no right to a painless execution. The phrase was "cruel and unusual". Given the type of executions that were legal and common when that was written, none of the modern methods (firing squad, gas, electrocution, hanging, lethal injection could possibly be considered cruel or unusual.
The opponents are using the side issue of pain in an attempt to outlaw all executions. If there was a completely painless form of execution, they would still oppose it and seek to outlaw it.
We cut people open - while they're alive!!! - and rip their hearts, livers, and kidneys out, and put in new ones - while they're Alive!!!
And yet they feel nothing because... they are unconscious. We also burn people to ashes - when they're dead - because they feel nothing.
So the key seems to be "feeling nothing" while all these horrible things are being done. The idea that we can operate on people so they feel no pain - during the operation - but can't do that when we execute someone is insane.
And the dishonesty of the anti-death penalty crowd is always astounding. The idea that they really are heartbroken over a condemned man feeling a few seconds of pain is absurd.
Instead of getting the state legislatures to overthrow the death penalty they persist in imposing their views via Judicial fiat.
Very few people get the luxury of a painless death. Why should a convicted murderer be one of them?
"There is no right to a painless execution."
There's a section of the argument where the lawyer fighting this drug protocol seems to say that death by firing squad is painless. Pushed, she hedgess.
There's no need for the lawyer to speculate. Wilkerson v. Utah (discussed in Baze v. Rees) specifically mentions burning at the stake as a method that would violate the Constitution. Even if the burning were completely painless, there is an element of "disgrace" in the definition of cruel and unusual punishment.
Justice Sonia Sotomayor: But there are alternatives. Oklahoma has found some. It's -- it can use the -- a firing squad now. So I don't know what the absence of a drug, what pertinence it has when alternatives exist.
Robin C. Konrad: I would agree, Justice Sotomayor, that --
Justice Ruth Bader Ginsburg: Doesn't -- doesn't a firing squad cause pain?
Robin C. Konrad: Justice Ginsburg, we don't know -- we don't know how, if the State chose to carry out an execution by firing squad, whether, in fact, it would cause -- rise to the level of unconstitutional pain and suffering under the Eighth Amendment.
Chief Justice John Roberts: Well, you don't know.
Do you have a guess? I mean, is there a reason that the States moved progressively to what I understand to be more humane methods of execution? Hanging, firing squad, electric chair, death -- you know, gas chamber?
Robin C. Konrad: Yes.
Chief Justice John Roberts: And -- and you're not suggesting that those other methods are preferable to the method in this case, are you?
Robin C. Konrad: I'm not suggesting that, Mr. Chief Justice, but the reason why States moved to more humane methods is, as we learn more, and as we learn more about science, and develop, then, as a society, we move forward. We have evolving standards of decency.
Chief Justice John Roberts: But you have no suggestion as what -- to what would be an acceptable alternative to what you propose right now for Oklahoma. Do you have any -- I mean, the case comes to us in a posture where it's recognized that your client is guilty of a capital offense, it's recognized that your client is eligible for the death penalty, that that has been duly imposed. And yet you put us in a position with your argument that he can't be executed, even though he satisfies all of those requirements.
Robin C. Konrad: I would --
Chief Justice John Roberts: And you have no suggested alternative that is more humane.
We have evolving standards of decency
This should never be used as judicial reasoning. It is the role of the legislature to reflect this evolution by changing the laws. It is not the role of the courts to reflect this evolution by changing the laws, or worse the Constitution.
If I understand correctly in at least 1 case (don't know if this is the one) a inmate 's IV wasn't properly inserted so some of the paralyzingly drugs were not getting to him in the amount needed in a timely manner. I believe many of us (or know someone) have had an IV that has been very hard to start. Talking to a medical person who starts IVs every day at work there is a procedure called a cutdown that always has success. It isn't used often anymore but if it has success and it's to help someone be paralyzed quickly use it. Just find some other terminology for it so people don't go crazy talking about it.
All of these peculiar methods of execution, electric chair, gas chamber, injecting poison, etc., are not about the condemned, but are attempts on our part to avoid responsibility for our actions.
What they do have in common is that they do nothing to reduce the terror of imminent death for the condemned - if anything they prolong it - nor are they necessarily painless, since they all can go, and have gone, very wrong, but gives us a threadbare excuse to avoid thinking much about it, especially since executions take place deep in behind prison walls.
Another thing they have in common is that they rob both the condemned and us of any dignity in the carrying out of the act.
I feel that if we are to have the death penalty, hanging is the traditional and right and proper way to go about it for civilian crimes, and death by firing squad for certain military offenses.
We have no way of knowing if any form of death is painless. Nobody has ever come back from the dead to tell us.
We don't know if the last second or two before the brain shuts down are happy or painful or whatever.
We routinely euthanize our pets -- we believe that we are doing our best to kill them painlessly. Several states now allow the same for terminally ill patients.
What disturbs me is that there doesn't seem to be any connection between the ways we execute people and the ways we euthanize people and pets.
If we actually care about minimizing the pain of both the people we're executing and the patients we're euthanizing, shouldn't the procedures be the same?
Also:
"Coupe said...
Hang the person, or shoot the person in the head. In both cases, death is instantaneous."
I've never understood why people believe this.
JFK was shot in the head, and wasn't pronounced dead for about half an hour.
Gabby Giffords was shot in the head more than four years ago. She is still alive.
And hanging... even when the neck snaps... why would you expect the brain to instantly die? It should take at least four minutes for anoxia to start killing off brain cells.
I'm sure we could dream up ways of instantly liquifying the brain (I'm imagining a huge block of concrete dropped on someone's head, for example) -- but that really seems silly. If the point is to prevent pain, we're really, really good at that, as anyone who's had surgery can tell you.
I'm opposed to the death penalty, but since we're brainstorming, I'd like to offer my idea for an exciting, new method that eliminates the fear and anxiety prior as well as any pain during.
I call it the Dynamite Surprise.
According to Temple Grandin, shooting a bolt through the right place in a steer's brain causes an instantaneous painless death.
I am against the death penalty because we do not take it seriously.
Especially I think prosecutorial misconduct should be severely punished, and in capital cases should even result in a charge of attempted murder, since that is what it would be, if a guilty verdict resulted in the accused actually being executed.
Justice Samuel Alito: If an -- if an anesthesiologist rendered a person completely unconscious, and then the person was burned alive, would that be cruel and unusual punishment?
Sounds like a middle school debate.
Justice Elena Kagan: -- is kind of like that, isn't it? It's being burned alive from the inside. That's what it is.
No. That's not what it is.
Capital executions should be handled by the abortion industry that use methods (e.g. decapitation, evisceration, lethal injection, etc.) which are nearly 100% effective and are certified as "humane" by leading human and civil rights organizations. The overlap of government and private industry for this purpose is expensive and unconscionable. The need and desire of abortion providers, consumers, and supporters to preserve the fantasy and morality of their "choice" through perception disparities should be overturned. If it's good enough for wholly innocent human lives, then it is certainly adequate for convicted murderers.
Administration of an inert gas, such as Nitrogen causes rapid loss of consciousness and death within minutes. It is quick, painless and cheap.
Clint: the drug makers, due to public pressure, will not sell those drugs to be used in executions.
"We have evolving standards of decency"
And guess what, the standards always happen to move in the direction desired by the judge invoking them. Of course, once they've "evolved" to the point of enabling her to decide the case, there's no evolving back. Prog justice is a one-way street.
Why not give a shot of prophalol that anesthesiologists use during surgery and increase the dose. Michael Jackson swore by it to put him to sleep.
And it seems to be the preferred method of murder of a husband among nurses on Forensic Files.
I don't think "evolving standards of decency" is why burning people alive is considered cruel and unusual. It has pretty much always been considered cruel and unusual -- that was the whole point. No one chooses to execute prisoners by burning at the stake because he thinks it's humane. You'd have to be deaf to think that.
What is novel today is that we may be able to burn people alive without their actually feeling any pain, opening up the possibility that, to the contrary, under our "evolving standards of decency" we might be able to burn people at the stake in a "humane" way.
Of course, it's not really humane at all, but what is abhorrent at that point is not the execution itself, but the mutilation of the body by flame after. Like if we killed prisoners humanely and then desecrated their bodies afterward, or had them hewn apart and their heads mounted on spikes, or their corpses gibbeted -- these would all be abhorrent. I don't know whether the Eighth Amendment can provide any protections after death, but mutilation of the body could be conceived of as a species of humiliation inflicted on the condemned through horrible anticipation prior to the instant of his demise, so I suppose it might.
clint said...I've never understood why people believe this.
Of course the brain has residual oxygen, and a hanged head, or even a guillotined head, probably does function for several seconds, and the condemned are given a blindfold for that very reason. However, without blood flow, the brain rapidly dies.
Doctors have protocols that even though they know a person has a wound which makes them incapable of living, that they might delay declaration of death. In Kennedy's case, he was physically dead seconds after he was shot. In the emergency room the doctor had to insure the heart was not functioning. This took less than a minute.
In Giffords case, her heart never stopped, which means she still had full blood flow to her severed but functioning brain. Her medulla and cerebellum were not damaged.
Death from hanging severs the spine and the heart stops beating. When you shoot someone with a pistol, you usually have the person lower his chin, and they are shot in the back of the head (commonly seen in mass German and Russian execution films), thus destroying the medulla and cerebellum and the heart stops.
The heart stopping is called death, and yes, the brain rapidly dies, but there are seconds of functioning. Minutes would be impossible without blood flow.
You asked "why", and this is my reasoning. I don't know if it passes scientific muster, but that's what I remember from college (admittedly many years ago).
Fernandinande said...Sounds like a middle school debate.
Konrad seems to have just let this slide. He knows he has limited time before the bench, and he's not going to waste it on her stupidity.
Well there's pain (not that I give a tinker's toot--a person sentenced to death for a heinous crime has forfeited his right to life) and then there's duration of pain.
If you want a short duration of pain during an execution, a guillotine seems to be the way to go. Unlike an ISIS beheading where the slaughterer is sawing at the victim's neck for some number of seconds, a guillotine blade passes through the spine and spinal column in a millisecond.
Roger Sweeny said...According to Temple Grandin, shooting a bolt through the right place in a steer's brain causes an instantaneous painless death.
I don't think this is correct. The animal is knocked out, and its throat is cut. It bleeds out.
This is the recommended way to kill an animal, and I believe it comes from Jewish tradition, which was adopted by Christians.
Muslims on the other hand, being mostly illiterate desert wanderers, just cut the throat and let the animal suffer. Much like the people from outside their tribe who piss them off.
This reminds me of the emotional argument against homo sex. The "ick" factor.
Burning alive? It's so icky. Gay sex? It's so icky.
Somehow we're able to overcome the ick factor of gay sex. But when Supreme Court justices make emotional, ick factor, arguments, we're supposed to listen.
Idiots.
Just use nitrogen. Pure nitrogen. They pass out and suffocate unconsciously.
Can even use a plain oxygen mask while strapped to a chair. No gas chamber needed.
People think of burning at the stake as a roaring hot fire. In fact it was usually a deliberate slow cook, hours not minutes. The Stake had a dual objective. Make the person suffer. Show the suffering to the public both for their satisfaction and as a cautionary lesson.
Cruel? Definitely. Unusual? No so much, back in the day. It would be both now, and it's no stretch to argue that the spectacle of burning an unconscious person would nevertheless be cruelty.
The issue should not be pain. Many noncriminals do not have painless deaths. Just as for the noncriminal, a death which is not cruel is one where suffering is minimized to the extent possible. That should not be so hard to do, though the outcomes can't be perfectly predictable. Your results indeed may vary.
If you believe that a painless death is the only means to make the death penalty constitutional, you are actually arguing that the punishment is always unconstitutional, since the outcome can not be perfectly controlled.
Why not put the condemned in a locked car in a closed garage with the motor running. It seems that folks do this unintentionally from time to time and die with out waking up, signifying that they feel no pain.
When the new F-16 fighter first came out, the Air Force was suddenly faced with planes crashing nose first into the ground at high speed.
It turns out the plane could pull G's so fast, that many of the pilots were rendered unconscious, and thus having "taken a nap" found themselves unable to pull up in the seconds left after they again became conscious, which resulted in their "having a bad day.".
This loss of consciousness (LOC) is caused by gravity levels so high, that the body is unable to pump enough oxygenated blood to the brain. Within seconds the pilots brains stopped functioning, and only the medulla and cerebellum (primitive parts) continued to function.
The Air Force solved most of these problems by requiring all F-16 pilots to be certified in the centrifuge, where they were taught how to pull high G's with no loss of consciousness (essentially a technique for keeping oxygenated blood in the brain, regardless of high gravity levels).
Ergo: No oxygenated blood, due to heart failure, or gravity, causes LOC within seconds.
A one ton block of iron suspended over the condemned, dropped when the "execute" command is given, would be instantaneous as can be.
Messy, but instantaneous.
The Supreme Court did not distinguish itself in that oral argument. Sotomayor was astonishingly personal in her attack on the gov't attorney, basically accusing him of misleading the court in his brief. Her criticisms, it turned out, were mostly a misunderstanding (at best) on her part. But she was hardly the only one who was lost -- perhaps trying to get lost -- in the medical jargon. I had the feeling throughout that the attys, and the experts who testified below, had a very precise understanding of " coma," " surgical level of anesthesia", etc., which kept getting lost in the questions (but not in the answers).
It was also an argument in which most of the questioning came from Kagan, Sotomayor, Ginsburg and Breyer. Very little of it was enlightening. Alito ended it with the bit quoted in the blog post, which he noted was irrelevant to the issues before the court.
As I listened to it, I was wondering whether the rhetoric from Kagan and especially Sotomayor might have been so offensive to the other judges as to help the gov't with Roberts and maybe even Breyer. Looks like a 5 to 4 win for the gov't, although Breyer might make it 6 to 3.
Cruel and unusual... Is it cruel and unusual punishment to burn someone alive? Is it cruel and unusual punishment to cut off heads? Is it cruel and usual punishment to shoot someone in the head?
All over the world and even in the US, we constantly see criminals going farther and farther in their cruel and unusual punishments to their victims. But here we are arguing over what is a "cruel and unusual punishment" for these depraved human beings. Our punishments aren't cruel enough compared to what they are doing to their victims. How is a criminal feeling pain cruel or unusual? Do they not feel pain in prison, physical or mental? So are we going to start arguing that even going to jail is cruel and unusual punishment next?
I know some say that as a civilized society, we need to "be above it." I say that's great, let's do that. Let's just sit back and put more depraved aholes in jail and show the world we treat the worst humans with kindness and mercy. I'm sure that will cut down on the sick and twisted murders we already see on the Internet and nightly news.
The only thing that works is swift and just punishment. There is the real problem that should be addressed, but of course that can't be solved by the Supreme Court. And I think this issue shouldn't be a Supreme Court issue either.
Fuss fuss. Our ancestors came up with several perfectly suitable protocols and there are additional obvious ones; people are just making much ado about a solved problem because they want to eliminate the death penalty.
Allow the shortly-to-be-deceased to choose between firing squad, a single bullet fired from a pre-positioned gun (after being strapped in the chair),hanging, guillotine, current lethal injection protocol, overdose of morphine, the electric chair, or a room full of carbon monoxide. If any fail to work for whatever reason, or the do-gooders manage to make a protocol temporarily or permanently unavailable, simply remove the choice from the list and make him choose gain.
I was with my father when he passed. It wasn't painless. Death often isn't.
Coupe,
Kosher slaughter involves no stunning, which is disapproved of. With great care, a highly trained shochet takes a long, extremely sharp knife which is tested to have no anfractuosities, and swiftly, smoothly cuts both jugular veins and carotid arteries in one stroke. The idea being that like a paper cut, the animal doesn't feel it, and quietly, thoroughly (which is important, to remove all possible blood) exsanguinates. It is intended as a painless, humane and hygienic method.
The halal method I cannot understand or justify. I'm not Muslim so it seems best not to speak. Apparently they were inspired by kosher technique, but unclear on the concept, with their short stabby knives and the sawing which seemingly cannot be other than brutal. It's regrettable that kosher and halal practices are equated.
Stunning is iffy. Before No Country for Old Men invented the captive bolt stunner, they used to use a hammer, with uneven results. Even the new gadget can miss. It also had effects on the flesh which I won't detail.
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