Lethal Injection: Cruel and Unusual?

The Supreme Court is considering whether states should change execution procedures to reduce the risk of suffering. The New Yorker's Jeffrey Toobin, author of The Nine: Inside the Secret World of the Supreme Court, reports.

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ALISON STEWART, host:

Well, our next guest is great and the subject is interesting. But frankly, it's a little bit rough. So if you have any knee-biters around, maybe this is a great time for them to catch "Dora the Explorer" for a few minutes - just want to let you know.

Now, the 8th amendment of the Constitution - search your brains. What is it? You have a first amendment in second minute tend to hog the spotlight. Today, however, the Supreme Court will hear a death penalty case that involves the amendment that says, quote, "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Is a death penalty case looking at the method of killing killers - is it cruel and unusual to use the three - the common three-part lethal injection, a protocol that, first, knocks a person out, then, there's a second injection, which paralyzes them, and then a third which ultimately kills them.

The argument goes - the cruel and unusual part comes when injection number one doesn't work and the executionee will experience excruciating pain, all while being paralyzed and unable to tell anyone. And it's not the only death penalty case the justices agreed to hear. The other involves child rape.

We're going to bring in Jeffrey Toobin. He's a staff writer at the New Yorker, CNN senior legal analyst and author of "The Nine: Inside the Secret World of the Supreme Court." And according to Barnes & Noble, Jeff, your book was one of the best for 2007 - at least, that's what my e-mail tells me.

Mr. JEFFREY TOOBIN (Senior Legal Analyst, CNN; Author, "The Nine: Inside the Secret World of the Supreme Court"): Well, that's - the Barnes & Noble are people of taste and refinement, I guess.

(Soundbite of laughter)

STEWART: Jeff, thanks for coming back on the show.

Mr. TOOBIN: Good to talk to you, Alison.

STEWART: So let's look at cruel and unusual. How subjective is that to interpretation when it comes to the law?

Mr. TOOBIN: Well, the Constitution is full of difficult and obscure challenges on interpretation. But I think cruel and unusual may be the hardest because not only are the terms difficult to decide what they mean on their own - the court has held for many years that those terms should be defined - they should be defined in terms of evolving standards that what's cruel and unusual today may have been acceptable in the 18th century when the Constitution was written.

So the court is dealing with a shifting target and the court majority has very clearly said that some kind of punishment that were acceptable during the time when the Constitution was written are now unacceptable. So it's very hard to know what's cruel and unusual. And the justices have split, in these cases, frequently.

STEWART: So that's interesting. So the Supreme Court does take into account, for example, advances in medicine and technology in making a decision. For example, in the case of lethal injection, it's possible to just use one injection to get the job done rather than this three-part injection.

Mr. TOOBIN: That's right. I mean, it's - this case is interesting for many reasons. But one main reason is because of the history of executions in this country. It's a grizzly but kind of fascinating subject. And the story of executions has been an attempt over the generations to find a more humane method.

And, you know, hanging was replaced by execution, which was replaced by the gas chamber, which has, in turn, been replaced by the lethal injection. And each time, society has found the previous method inhumane.

The whole reason lethal injection started in the 1970s was it's an attempt for a more humane method. But as the science has evolved and as study has increased, many people have found that the lethal injection may be inhumane.

Now, one very important fact in this case is that this three-judge cocktail, as it's known, has now been banned for use by the American Veterinary Society for use in putting dogs and cats to sleep because the vets think it's too cruel. And that's something that I think is likely to have an impact…

STEWART: Hmm.

Mr. TOOBIN: …at least on some of the justices.

STEWART: What's interesting in this particular case - is out of Kentucky - Baze versus Rees. Baze is the convicted murderer. He killed a sheriff and his deputy. Now, you talked about the Veterinary Association not using this, yet, 36 states, I believe, still use this protocol.

Mr. TOOBIN: 36 of the 37 states have the death penalty…

STEWART: Yeah.

Mr. TOOBIN: …and use it. So this is essentially the only method used - although because this case has been pending now for close to a year, it's really created a kind of a moratorium on the death penalty. I mean, there have been very few executions in the past year. And one of the many interesting things about this case, also, is the changing political context, which is, as the Supreme Court is getting more conservative, the country appears to be getting more liberal, at least on the death penalty. Prosecutors are asking for the death penalty less. Jurors are imposing it less. New Jersey just ended the death penalty. New York, in effect, has ended the death penalty. So the momentum appears to be going in a anti-death penalty direction after many years of moving in the other way.

STEWART: It's funny, you may have just answered the question I'm about to ask you that there might be something else to it. I'm wondering, as I'm reading about this case, on the one we're going to talk about next. I mean, it was in the '70s - it's 30 years ago that there was this reassessment of the death penalty by the Supreme Court. Any thoughts on why it's taken 30 years for us to start looking at it again?

Mr. TOOBIN: Oh, I think there's some really clear reasons why. You know, the support for the death penalty went way up in the '80s and has been shrinking since the late '90s. One reason is the crime is less; crime is down all over the country. Another reason is the exonerations from people on death row largely because of DNA technology that jurors and regular folks have seen that we make mistakes. And that's, I think, put some fear in people about the irrevocability of the death penalty. So I think the decline in crime - the fact that people are in less of a sense of fear about crime, and the exonerations, are the main reason.

STEWART: We're talking to Jeffrey Toobin, author of "The Nine" and CNN's senior legal analyst about some of the cases that the court - Supreme Court - has agreed to hear.

Let's go on to this other case involving the death penalty. This one is about the application of it to someone who isn't a murderer. It's a case of a Louisiana man who raped a child, but was given the death sentence. And as our lawyers are arguing against it, even though Louisiana says it's a capital crime, is that enough for the Supreme Court to intervene?

Mr. TOOBIN: Well, this is - and I think an even bigger case than the lethal injection case because since the '70s, the court has - there was a case where the court said you can't execute someone for - you can't execute someone for rape of an adult. What every court in the United States has interpreted that to mean is you can only execute someone for murder. What this case suggests is the court may open the door to allow the states to execute someone for something other than murder.

Now, this crime is unspeakably awful, but, you know, if you open the door to executing people for child rape - I mean, this is a kind of crime that is sadly very susceptible to wrong convictions because children, despite their best intentions are often bad witnesses. And this, you know, the child rape often turns on the testimony of children. I don't know if you seen the movie "Atonement." It sort of based - that's a key…

STEWART: Right.

Mr. TOOBIN: …plot point there. And I think it's, this - if you were to open this door, which most people, I think, thought was closed forever - that you can only execute people for murder - that would be a big, big change in the history of the death penalty. But again, this is a very conservative court and it's likely to be a very close decision.

STEWART: Well, it's interesting also what the Louisiana man's lawyer is arguing. He's making the sort of reverse argument that if you can't put someone on death row who is a child, then the diverse logic shouldn't be true, you shouldn't excessively convict someone because the child's the victim?

Mr. TOOBIN: Frankly, I don't find that a terribly precise argument.

STEWART: He's not a good lawyer is what you're telling me?

Mr. TOOBIN: No, I don't think the victim and the defendant are in analogous situation, you know, one's blameless and one's blame worthy. But I think it's just a more practical argument of the risk of wrong convictions and it's a, you know, the risk of executing the wrong person is something the court has always taken into great consideration. And the risk is many people think simply too high in those cases.

STEWART: All right. Do you want to get to one more case because I know you've written about, I believe, to the New Yorker? You bet…

Mr. TOOBIN: In the current issue, a couple (unintelligible)…

STEWART: Yeah, about voter ID fraud. There is this case coming out of Indiana, I believe, where they want to show that the case is about showing ID to be able to vote.

Mr. TOOBIN: Right. I mean, it's so…

STEWART: …it sound sort of simple, state-produced photo ID.

Mr. TOOBIN: Hey. You know, you have to show an ID to get on a plane, why shouldn't you have to show an ID in order to vote? And in Indiana, like several states, Georgia, among others, since Bush beat Gore in 2000, has said, well, the way we're going to address the problem of voter fraud, people impersonating other voters, is to require voters to show a government-issued photo ID or you can't vote. And that's what the justification is. But opponents of this law say this is - that explanation is a total fraud. What this is is an attempt by Republican legislatures to stop black people and poor people from voting - the people who don't have photo Ids, that voter fraud is a fake problem. There are not many cases of voter fraud in the United States.

People simply don't do it, and every study shows that. But what this does, this law does, is establish a new barrier for poor people and people who are, you know, less, you know, involved in the society so they don't have in a driver's licenses to stop them from voting, and it's going to be a very interesting task of whether the court will simply take a justification from the state legislature at face value. Hey, we want to stop fraud or they're going to look behind for the reasons for the law and say, hey, hold on a minute. We know what you're doing here and don't kid us that this is about fraud. This is about electing Republicans.

STEWART: It's interesting because the idea of getting a voter state-produced photo ID seems very easy but then when you start to consider that maybe birth certificates cost $60 or $70, $70 to reproduce and what if you're a homeless person, it could be difficult to get that photo ID.

Mr. TOOBIN: Of course. And Indiana has this sort of bizarre paradoxical situation where if you don't have a photo ID, the government will give you a photo ID for free. All you need is your birth certificate, except you need your photo ID to get a birth certificate. So, I mean, you know, there are a lot…

STEWART: You made that up?

Mr. TOOBIN: No, no. It's absolutely true. The - it's a very interesting case because, you know, I think everybody knows what's going on here, that this is - these laws are pushed by Republicans and opposed by Democrats and every judge that's approved this law has been appointed by a Republican president. And every judge but one who struck it down or has said to strike it down has been appointed by a Democrat. And I think it just shows, you know, one of the themes of my book and one of the themes, I think, of Supreme Court jurisprudences that these answers are very, very political. The idea that the law tells you the answer is kind of a myth. These are political questions and whether this law's constitutional or not is much more, I think, a political question than a legal one.

STEWART: Jeffrey Toobin is a staff writer at the New Yorker and CNN with senior legal analyst and the author of "The Nine: Inside the Secret World of the Supreme Court."

A pleasure as always, Jeff. Thanks a lot.

Mr. TOOBIN: Thanks, Alison.

(Soundbite of music)

STEWART: Coming up on THE BRYANT PARK PROJECT, wildcard weekend - not just in politics but also in football. We'll talk about who's left in the playing field with the BPP resident Monday morning quarterback.

My husband, Bill Wolff, coming up on THE BRYANT PARK PROJECT from NPR News.

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