Two recent decisions suggest the U.S. Supreme Court may be stirring itself for a major review of the death penalty. The high court voted 5-3 to ease rules giving inmates a last chance at proving their innocence if new evidence, especially objective scientific evidence such as DNA, turns up. It also voted 8-0 to scrutinize the prevalent system of executing criminals by lethal injection to see if that supposedly “humane” method is actually cruel and unusual punishment.
Thirty-seven states and the U.S. government now execute by lethal injection. But a report in a British medical journal, The Lancet, last year suggested the current three-drug cocktail might only mask the outward symptoms of excruciating pain. The first chemical, sodium pentothal, is an anesthetic. The second chemical, pancuronium bromide, causes muscle paralysis but does not block pain or interfere with consciousness. The third chemical, potassium chloride, stops the heart.
Lawyers for a Florida inmate, Clarence E. Hill, argued that dying inmates may actually feel intense pain without being able to express themselves. Justice Anthony Kennedy’s opinion stressed that only the manner in which Hill would be executed was being reviewed, not the constitutionality of capital punishment itself. If Hill eventually wins, the justice noted, Florida could still execute him by lethal injection by using a more acceptable protocol.
Legalities aside, the Hill case is almost a parody of today’s convoluted capital punishment cases. He was strapped to a gurney, with intravenous lines already inserted, when Kennedy stayed his execution nearly five months ago.
A companion 5-3 ruling last Monday, also written by Kennedy, ordered a new habeas corpus hearing for Paul G. House, a Tennessee man sentenced to death in the 1985 murder of a young mother. Prosecutors arguing for a death penalty suggested to jurors that House had sexually assaulted Carolyn Muncey and then killed her. Later, DNA testing indicated semen on Muncey’s nightgown did not come from House.
Kennedy, again writing for the majority, said the belated DNA evidence was a “new disclosure of central importance” in the way jurors might look at the case. While Kennedy himself said he was simply following a 1995 case, legal analysts said his “holistic” approach signals lower-court judges to take a generous view of the way new evidence, scientific and otherwise, might undermine convictions.
In our view, the fact that there would even be a legal controversy over such a basic question of fairness is further evidence that the death penalty in America is still far from being fair and equitable.
