US Supreme Court takes on the death penalty. Again.

Since this is somewhat related to real life work, I couldn't help but listen when I heard Brian Williams say on the news that the US Supreme Court had accepted a case about the lethal injections. And sure enough, it has. See Lethal Injection Gets Review: Top U.S. Court Overview. Now, lest I be accused of overstepping my bounds of neutrality, allow me to weigh in one consideration that I have with this controversy. I haven't given this much thought beyond the last five minutes, but take it for what it's worth.

Now, 200+ years ago, most executions took the form of public hangings. Plenty of research has been written on this, and I leave the entire scope (e.g., firing squad, guillotine, etc.) for more accomplished authors. Although states can choose whether they allow the death penalty or not, time has morphed this form of capital punishment into its modern marvel, the lethal injection. So how does this fit into the 8th amendment? Well, simply put, "cruel and unusual" has the dubious distinction of being one of the few amendments whose definition and understanding doesn't quite fit with the concept of applying original intent.

What I mean by this, I think, is that the framers gave the government (and the states through the 14th amendment), an ability to define what "cruel and unusual" is, with its obviously deference through Marbury v. Madison to the courts. So, the Supreme Court says the death penalty is okay (presumably since it has been in existence since 1790), setting the floor for the states and the government to determine what kinds of punishment are appropriate. So is the Roberts court going to try and ratchet this floor up a couple inches? I don't see how they can. I see this as purely an Article I or II problem.

If these prisoners and the greater public believe that there are bigger procedural problems (e.g., blotched executions, two hour slow deaths), and that these problems may have a negative psychological effect on the American population, then the appropriate avenue to fight it is in Congress, or in the pending case, the Kentucky General Assembly, not the courts. (Note: I find it disturbing that in looking for the Kentucky General Assembly website, the top hit in an appropriate online search is for the Catholic Conference of Kentucky's links to the legislature).

Maybe the time has come for the states (e.g., Michigan v. Long) or the feds to deal with this problem head on, and maybe this case will add fuel to the debate's ongoing fire. This opinion has Scalia and Stevens written all over it (perhaps in similar fashion to the Raich case). Only time will tell.

Tags: supreme court death penalty, supreme court lethal injection, constitutionality of death penalty