Alabama wants to execute a man by nitrogen hypoxia. That is cruel |
The eighth amendment prohibition on cruel and unusual punishment is among the most noble and valuable constitutional protections. It is the only provision of the constitution that recognizes the dignity and humanity of everyone, even those who commit the vilest crimes.
But in the last several years, this great legal and moral achievement has taken a beating at the hands of conservative judges and justices. They have done much to empty it of its meaning by tethering it to the views of the people who wrote it more than two centuries ago.
This has been especially apparent in the context of capital punishment where the supreme court has bent over backward to ease the path to the execution chamber for people convicted of capital crimes. Moreover, the current death penalty jurisprudence is so convoluted that lower courts often have difficulty figuring it out.
That difficulty is very much on display in a pair of decisions over the last few days on the constitutionality of Alabama’s nitrogen hypoxia protocol. On 28 May, the federal district judge Emily Marks said that nitrogen hypoxia passed muster. She compared it with barbaric execution methods that haunted the imagination of the framers of the constitution.
Only a few days later, an appellate court reached a different conclusion, finding nitrogen hypoxia to be an unusually painful execution method. Both courts claimed that they were faithfully applying supreme court precedent.
All the while, Jeff Lee’s life is on the line. His execution had been scheduled for 11 June. On Tuesday, after the 11th circuit court of appeals found nitrogen hypoxia to be constitutionally defective, Marks enjoined the state from executing him using that method. But Lee cannot rest easy.
As an article in the Guardian notes, Marks went out of her way to point out:........