"This is an execution, not a surgery!"

[rebeccafrog]

Via Quizlaw, Dahlia Lithwick reviews yesterday's oral arguments in the lethal injection case. Needless to say, Justice Scalia was unimpressed with the argument that no one should feel pain while being executed (see above). The other major problem with this case is that it hinges on the drugs being administered improperly:
[T]he first drug in the

Comments

[kastinkerbell]

dI heard Nina Totenberg's run-down of the questions/arguments yesterday (btw, it's the first time I remember hearing recordings from inside the courtroom...I've personally always loved listening to her reenactments). From that, the compelling argument I heard was that we shouldn't be using this cocktail of drugs when there is a single dose that is both easier to administer without mistake and less-likely of causing pain and suffering. So it's not that the condemned should never feel no pain, but why use a method that risks it when there are better methods (drugs) now than when it was first developed?

I understand that it's not as simple as all that (with the judges wary of making a ruling that opens the door for outlawing capital punishment).

[rebeccafrog]

"There's a better way" isn't much of a basis for an 8th Amendment argument. That something has a risk of going wrong doesn't make it inherently cruel and unusual. And that's the essential problem with this challenge. Even the petitioner acknowledges that there is no case if the drugs are administered properly. It may be constitutionally necessary to make sure the people administering the drugs are properly trained, but getting something declared unconstitutional is an uphill battle to begin with. As a general rule, if there is a way for a law to be saved from a constitutional challenge, the justices will take it. The attorney for Kentucky asserts that there are substantial safeguards in place to make sure nothing goes wrong. In the absence of compelling evidence that things do go wrong a statistically significant amount of the time, the justices are likely to find this to be sufficient.