Then Again...

In my last post I discussed some of the things I am happy with SCOTUS for doing. This post is decidedly the opposite.

Two cases today had less than pleasing outcomes for me. The first was a case brought by the state of Michigan against the Environmental Protection Agency claiming that the EPA's demand that power companies cut mercury emissions was imposed without any thought to what it would cost power companies to comply. The court ruled against the EPA, agreeing that the EPA essentially could only protect the environment and thus the safety of the US public if it first made sure it wasn't going to cost big business too much. (It should also be noted that the EPA did eventually do a cost study for the mercury provisions in the Clean Air Act and found that the cost to public health and safety was 9 times higher than the cost of industry compliance. Big surprise there.) 

The ruling is fairly narrow and only affects the Clean Air Act, but it creates a greater possibility for future trouble between industry and the EPA. The ruling opens the door for companies to drag their heels over regulation implementation. In this case most companies have already implemented the mercury reduction standards required by the EPA, but in the future they may be able to use this case to argue that they shouldn't have to comply with EPA regulation until their case has been heard and decided (which we all know can take years). On a separate and more common sense than legal sense tangent I find this ruling deeply troubling. The idea that big business profits are more important to us as a society than the safety of our environment and our population is deeply disturbing and frankly disheartening in the extreme. I have feelings about this ruling that boil down to this: time is money and ruin. The extra time the EPA will have to spend confirming what should be common sense and the extra time companies will spend dragging their heels on implementing common sense wastes a hell of a lot more money than immediate implementation of environmental and safety standards. It seems a small price to pay for me, but then I am not an oil, gas, or electric company executive...

The other ruling handed down by the court today was Glissop v. Gross and at stake was the use of midazolam, the sedative currently used in the lethal injection cocktail to execute death row prisoners. The court upheld the legality of the drug and rejected the idea that the use of a non-barbiturate that does not induce coma constitutes cruel and unusual punishment as set out by the Constitution. Sonia Sotomayor, writing for the minority dissent, likened the experience as "being burned at the stake" in terms of the pain the inmates endure. The majority opinion, written by Samuel Alito, hinged on the point that the prisoners who brought the case had not provided an adequate substitute for the midazolam and blamed them and other groups opposed to capital punishment for making pentobarbitol harder (almost impossible) to obtain. (The reason it's harder to maintain is that drug companies don't want the stigma of providing a drug to prisons to cause death. Though undoubtedly public pressure has played a huge role in creating that stigma.) 

Overall 3 percent of lethal injections in this country are botched and 2014 was one of the worst years on record with at least 4 very prominent cases. Most botched attempts stem from the inability of poorly trained prison attendants to find a vein. But all the cases from 2014 (and what the case was arguing against) happened after the drugs started flowing. The problem boils down to the midazolam, which began wide usage in 2014. The drug is a sedative and extreme amount are needed to adequately sedate. The midazolam is combined with a paralytic drug and then two other drugs are administered to kill the inmate. Between the paralytic and the midazolam it is hard to tell how much pain prisoners are in (they are effectively paralyzed for their death). Except that during botched executions when prisoners haven't been given enough paralytic or sedative observers are privy to the gasps and screams of the dying. Often for some time. After seeing or hearing about those executions there can be little doubt that death by lethal injection can be an excruciatingly painful experience - beyond cruel and unusual punishment. Moreover, the frequency with which executions are botched in this manner is creeping up since the new cocktail's introduction. 

In the wake of increased botched executions there has been a shadow of doubt cast over the whole process. How effective is midazolam at actually stopping someone from feeling pain? How much of an execution looks peaceful as opposed to actually being peaceful? How well are we training those who are executing inmates? If we can't find any alternatives to an imperfect and sometimes agonizing method of execution does that mean we can continue on in good faith with the imperfect method? Is cruel and unusual punishment a relative term or have we ruled incorrectly in the past in favor of cruel punishments because it was the best we could do at the time?

I will admit to an immense bias on this issue. I am a staunch opponent of the death penalty. For a number of reasons. The first is that I believe it to be largely ineffective as a deterrent to criminal behavior. Overwhelmingly criminologists and law enforcement do not see the death penalty as an effective deterrent of violent crime. Though I'm sure there are many who believe it to be effective, I am more inclined to agree with those who study and see the effects of it on a daily basis. Second, cases involving the death penalty in all stages from prosecution to incarceration and execution are more expensive than cases that do not involve the death penalty. Third, the methods we use at present in my mind are clearly flawed and I think we will look back at this method of execution with the same measure of repulsion that we now view hanging, electrocution, or asphyxiation. Another big reason I don't support the death penalty is that I believe there is some clear bias surrounding who is sentenced to death. There is a tendency to give harsher sentences in this country to people of color and almost 45% of executed inmates have been non-white (a disproportionately high percentage based on population). There is also a strong correlation between the quality of representation and the possibility of receiving a death sentence. Or plainly stated - if you're poor and can't afford a good layer, you're more likely to be sentenced to death. The last reason is this - we make mistakes. We have killed innocent men, women, and even children. Death is irreversible and once a mistake is made the best we can do after execution is apologize and try to make amends with the living family, which is woefully inadequate in the face of what we have done. Our country has an imperfect past, which we see more clearly in the present. It is obvious to us now that some black men were executed because of the color of their skin during horribly racist period of our history. I wonder if we will look back on some of our current executions with similar shame in the future (like perhaps the execution of the mentally ill - though I already feel a great deal of shame about that particular issue). 

Wanting vengeance and retribution is as human as it gets. But so is prejudice, so are mistakes. I hope this ruling brings about a larger discussion of exactly what the majority pointed to in its decision: what are the alternatives? Is it time to join the more than 50% of countries that have banned the practice. There are now only 36 countries left in the world that retain and practice the death penalty. We are on that list. In fact, we are on an even more select list. We are 1 of 22 countries that carried out at least one execution in 2014. And an even smaller list. We are one of 9 countries that has executed someone who was under the age of 18 at the time of their crime in that last 10 years. There are very few other developed countries that still allow the death penalty as broadly as we do and almost none that actually practice it. Certainly just because everyone else is banning something doesn't mean we have to, but the fact certainly warrants a broader debate on the issue.