Questioning Capital Punishment
By Bruce Shapiro 

In the long, contentious history of capital punishment in America, there has never been a moment like this: Over just a few days in mid-December, judges in California and Maryland and the governor of Florida shut down any pending executions in those states–all because of rapidly growing doubts about the humanity and constitutionality of lethal injection. In less than a week, 1,052 death-row inmates were thrust at least temporarily beyond reach of the needle.

At first glance, the impact of each of these death penalty moratoria might seem limited. In Florida on December 16, Governor Jeb Bush suspended executions and set up a commission to study lethal-injection procedures, after the grotesque death of Angel Nieves three days earlier: The three-drug cocktail supposed to sedate Nieves and kill him painlessly and quickly instead left the inmate conscious, grimacing in pain and struggling for breath. It took half an hour and a second round of injections before the spectacle ended.

In California, US District Judge Jeremy Fogel declared that state’s execution protocols rife with irregularities. In particular, Fogel raised serious questions about whether “certain inmates have been conscious” when injected with heart-stopping drugs, suffering “unconscionable” pain and anguish.

And in Maryland on December 19, the state’s highest court shut down executions, finding Maryland’s death penalty illegal because it had been established in secret and never subjected to a public hearing.

None of these orders address capital punishment itself. Governor Bush and the judges each focused on what might be described as “technicalities”–the choice of killing drugs, the training and accountability of executioners, the administrative procedures for an inmate’s final hours. Bush and the judges each held out the possibility that, in Judge Fogel’s words, execution protocols are “broken, but can be fixed.”

Yet taken together, these three rulings–and a cascade of lethal-injection challenges in other death penalty states–have a cumulative significance far beyond their seemingly narrow terrain.

For the last decade, the issue that has driven the death penalty debate–galvanizing the attention of courts and press alike–has been innocence: a capital representation system so criminally negligent that 123 wrongfully convicted death-row inmates have been released, and public confidence in death sentences eroded.

Yet innocence cases, in their own way, have evaded a fundamental question: What about the grievously guilty? What about what one pro-death-penalty legal scholar calls “the worst of the worst”? Are executions of the truly guilty consistent with America’s evolving constitutional standards, with national ideals and worldwide human rights norms?

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