While deriding the sincerity of both sides in Baze v. Rees, as well as dismissing any importance in how executions are performed, Dahlia Lithwick fails to pick up on what might be a genuine 8th Amendment question exposed in the oral argument she describes: are dignity and painlessness both mandated by the prohibition on cruel and unusual punishment? And if so, if the drug we use to prevent any "undignified" death throe thrashing* potentially masks the prisoner's serious pain, how do we balance these two requirements?
As the title of this post indicates, I'm strongly on the side of painlessness and doubt whether dignity is an 8th Amendment imperative at all. Certainly none of the questions the Court asked to be briefed mention it; they're all about pain and suffering. Death with dignity is usually understood in American politics as a death one chooses, in contrast to the perceived indignity of dying locked in an increasingly defunct body. The vast majority of death row inmates, in contrast, do not go gentle into that good night; they pretty much have to be dragged through the appeals process kicking and screaming, raging against the dying of their last habeas petition. We kill them more like we kill rabies-infected animals, not like we kill a terminal cancer patient who has begged for euthanasia. Having decided on this course, why should we put the executee through pain in order to give ourselves the pretense that killing a living being is a calm, peaceful process? I am not saying that the inmate shouldn't have some dignity while he is conscious, while he is, to be frank, still recognizably a living human being instead of irreversibly on his way to being a corpse. Thus I agree with Lithwick that Scalia's suggestion, that inmates don't deserve a blood pressure cuff and should instead be slapped and shaken to determine consciousness, is a bad one.
The majority and dissenting opinions in a 6th Circuit case about Tennessee's play out the basic argument. Judge Sutton says the paralyzing agent is necessary to give the inmate dignity and protect the observers, who may include the inmate's family, from the false belief that the inmate is in pain. Judge Cole counters, "Because the drug does not affect the brain or nerves themselves, however, an unanesthetized patient remains completely conscious, and suffers slow suffocation and excruciating pain from the third drug (potassium chloride), all while appearing to be in a peaceful sleep. (See id. 11.) For this very reason, Tennesee in 2001 declared the use of pancuronium bromide or any other neuromuscular blocking agent on nonlivestock animals inhumane and illegal. See Tenn. Code Ann. § 44-17-303(c); 44-17-303(j) (providing criminal sanctions for using any substance that acts as a neuromuscular blocking agent when euthanizing non-livestock animals). Thus, Tennessee protects dogs and cats from the risk of excruciating pain in execution, but not death-row inmates."
A Supreme Court opinion that definitively stated that painlessness was the first priority, and that dignity in one's death throes ranked somewhere well below getting a vein on the first jab, could be of genuine use to states. It would tell them that they should be minimizing the cruelty to the inmates -- you know, the people whose 8th Amendment rights are most relevant here? -- instead of fretting about the misunderstandings or hurt feelings of the onlookers.
* Death Throe Thrashing would make a cool heavy metal band name.