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Tuesday, June 16, 2015

Is Criticism of Lethal Injection Just a Front For Opposing the Death Penalty?

I had planned to follow last week’s post on lethal injection with a post about the firing squad as a method of execution.  But I’m saving that for tomorrow in light of the numerous emails and conversations that have come my way about the relationship between one’s position on lethal injection and one’s position on the death penalty itself.  Is criticism of lethal injection just a front for criticizing the death penalty? 

My own experience over the past week suggests that most people think the answer is yes—if you have a problem with lethal injection, it’s because you must have a problem with capital punishment, so let’s be real about where the façade actually lies.

But the two don’t necessarily, or even logically, go together.  There are plenty of people who support the death penalty on retributivist grounds (indeed, retribution is by far the most popular reason people support the death penalty today) who have a problem with lethal injection for the very reasons I mentioned in last week’s post.  Law Professor Robert Blecker, an outspoken retributivist, is a prime example.  Here’s what he had to say:

Lethal injection conflates punishment with medicine. The condemned dies in a gurney, wrapped in white sheets with an IV in his veins, surrounded by his closest kin, monitored by sophisticated medical devices. Haphazardly conceived and hastily designed, lethal injection appears, feels, and seems medical, although its sole purpose is to kill.

Witnessing an execution in Florida, I shuddered. It felt too much like a hospital or hospice. We almost never look to medicine to tell us whom to execute. Medicine should no more tell us how. How we kill those we rightly detest should in no way resemble how we end the suffering of those we love.

Others who support capital punishment might rightly oppose lethal injection for the endless litigation, delay, and bad press it has brought the administration of the death penalty in the United States.

On the flip side, some abolitionists support lethal injection under the theory that at least when done right, this method of execution inflicts the least amount of pain upon the condemned, and until the death penalty is abolished, that’s about the best they can do.  Others in this camp like what lethal injection has done for the abolitionist cause—allowed drug companies to gum up the works, brought renewed salience to botched executions, and mobilized the medical profession to take a stand its involvement in the process. 

Of course, abolitionists can also oppose lethal injection, just as death penalty advocates can support it.  Years ago, one such abolitionist said this in making the point, “The worst sin of all is to do well that which should not be done at all.” 

Given the recent litigation in Glossip v. Gross, I’m not so sure the shoe fits anymore, if it ever did.  But it’s an open—and quite separate—question as to whether that’s so because lethal injection doesn’t “do well” in executing the condemned, or because executing the condemned is something we shouldn’t be doing at all. 

Posted by Corinna Lain on June 16, 2015 at 09:20 AM in Criminal Law, Law and Politics | Permalink


IMHO the article is garbage. He makes a great show of 'moral balance.

Has this man called for the public firing squad executions of
corrupt police officers - those who have betrayed their public trust?

Has this man called for the hanging of corrupt prosecutors?

There've been several cases recently where a judge was clearly an accomplice to murder (Chicago, Cleveland, NYC). Has Blecker called for these men to be publicly burned at the stake, considering how important an impartial judiciary is to justice?

Posted by: Barry | Jun 17, 2015 9:20:55 AM

It is the job of defense attorneys to try any credible argument, including that use of drugs the states I'll grant for argument rather not use but do because of shortages that medical experts are on record flagging as problematic, to stop their clients from being executed.

If this is 'bad faith,' again, definitional difficulties. There have been botched lethal injections. Non-abolitionists like John McCain red flagged one. The "bad press" is not likely to come from the states trying to execute people, admittedly, but don't think only abolitionists are to blame here either.

Nor does the delay. The death penalty is supported by a majority, but a sizable middle is very wary about the whole thing. Actual evidence certain might be wrong only gives them more reason, this including various government officials and judges who add to the delay, not all of them simply abolitionists.

Posted by: Joe | Jun 16, 2015 6:41:07 PM

At least in Glossip, much of this seems to be beside the point. As I understand it, the front/facade bit refers largely to arguments people make in court. Blecker believes that lethal injections bear a somewhat unseemly resemblance to actual medicine, but as far as I'm aware, he's not arguing that his entirely reasonable opinion is compelled by the Constitution.

The petitioners in Glossip, though, are making constitutional arguments that are difficult to take seriously as anything other than a facade for abolition of the death penalty across the board. They complain about the possibility of pain and the inability of the condemned to throw up more procedural motion practice than they already do to delay an execution. Perhaps there are other arguments like Blecker's, made in the larger policy debate, that exemplify how one can honestly oppose lethal injection or a particular method of lethal injection without opposing the death penalty, but I'm not seeing any in the court papers.

As for this: "Others who support capital punishment might rightly oppose lethal injection for the endless litigation, delay, and bad press it has brought the administration of the death penalty in the United States" -- I think it just circles back to the original question. The litigation, delay, and bad press come largely from opportunistic death penalty opponents who seek to litigate, delay, and criticize particular executions by lethal injections for reasons that smack of bad faith.

Posted by: BF | Jun 16, 2015 4:52:53 PM

Even though Blecker opposes lethal injection on the grounds that it medicalizes punishment, I don't think he supports litigation that seeks to bar states from using lethal injection under an Eight Amendment rationale. In the linked article he says "a part of him" hopes the abolitionists win their fight to ban lethal injection but that's hardly full throated support for the project. In his law review article Killing Them Softly he argues that the a "quick but painful" death is compatible with the Eight Amendment. Any decision to bar LI would almost certainly move the jurisprudence further away from that.

Posted by: brad | Jun 16, 2015 4:21:04 PM

true confessions--it was after talking to others who write in this area, and hearing from them the same lament--that no one seems to realize how much flack they get from abolitionists when they criticize lethal injection, or how distinct the two issues are--that inspired the post. I do think it's meaningful not to conflate the two. It's conflating the two that leads people to write off criticism of lethal injection as just a front for anti-death penalty sentiment, rather than dealing with those difficulties on the merits.

Posted by: Corinna | Jun 16, 2015 1:18:41 PM

How is Jesse using "supports"?

Let's say an abolitionist is a member of the legislature of Texas. S/he knows that the death penalty isn't going to be abolished. A bill is up to regulate the procedure of execution, including the means. Various options are available. Will none of them "support" [vote for/promote as the lesser of two evils] a lethal injection method over let's say electrocution or cyanide gas?

If this isn't "support," yes, perhaps it is a definitional issue. As to abolitionists against lethal injection, it often is a means to an end, as would any other approach in their arsenal. The fact standards that there are death penalty supporters who are against the technique & some abolitionists on the record saying that if we are stuck with the death penalty, they rather some other means used.

Posted by: Joe | Jun 16, 2015 12:23:20 PM

Obviously Kozinski, as you wrote last week, is another one on the list of DP supporters who would prefer to see bloodier executions (though in his case, as opposed to Blecker's, it's about us and not the condemned). But beyond those two I'm not aware of a larger trend of people holding those two views. Most DP advocates, I'd suspect, don't particularly care how the deed is done.

At the same time I've never met an abolitionist who "supports" lethal injection ... but maybe we're just defining our terms differently.

So, to answer your original question, while I don't think distaste for LI is a front for DP opposition, the two go hand-in-hand so often that I'm not sure it's that meaningful when they don't.

Posted by: Jesse | Jun 16, 2015 11:04:11 AM

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