Looking at the Ethics of the Lethal Injection Challenge
The Supreme Court decided to halt an execution in Mississippi this week, marking the third stay from the justices since they agreed to hear a challenge to lethal injection. It likely means that states will hold off on all executions until the high court rules on the case, which claims the drug mixture used for the injections can cause severe pain and amounts to cruel and unusual punishment.
The "de facto" moratorium and the case itself raise an interesting ethical question. In the past, other inmates have challenged the constitutionality of lethal injection, have lost their appeals and have been executed. And Richard Dieter, the executive director of the Death Penalty Information Center, says that the court has declined to take similar appeals in the past. So how is it fair that the justices have just now decided to weigh in, and, in the meantime, executions are likely to stop?
When I posed those questions to Stephen Gillers of New York University, an expert on legal ethics, he said it's not a matter of fairness in the conventional sense. He pointed to a story about late Supreme Court Justice Oliver Wendell Holmes.
"Holmes was on his way to the court one day when someone said to him, 'Do justice, sir, do justice!' Holmes replied, 'T'ain't my job. My job is to apply the law.'
"The job of a Supreme Court justice is to apply the law, not morality," Gillers said. "Now, conventional morality influences all of us, of course, and justices are no different. But they have to make a decision based on 'this is the law,' not 'we think this is right or wrong.'"
In the case of lethal injection, Gillers said, the court may have decided to let the issue percolate over time, letting the lower courts grapple with it. Because the justices have never ruled that lethal injection itself is cruel and unusual, their decision to take the case had to be centered on an aspect of the procedure in which the law was unclear and potentially unconstitutional.
Dieter said the lethal injection challenge is similar to what happened in death penalty cases when juveniles and the mentally retarded could be executed. Stays were also applied unevenly until the court finally ruled those executions unconstitutional.
"If someone's dead, there is nothing you can do," Dieter said. "It is unfair, but it's not the first time... But at least the message is now clear that we should hold up executions."
5:08 PM ET | 11- 1-2007 | permalink
