Rethinking capital punishment

What happened

A judge on Wednesday rejected California’s new lethal injection method, adding to doubt over the future of the death penalty in the state. A day earlier, the U.S. Supreme Court granted a stay of execution for a Mississippi prisoner, Earl W. Berry, who was scheduled to be executed for the murder of a woman 20 years ago. Legal experts interpreted the decision as a signal to lower courts that the justices planned to block all executions until next year, when they will rule on a Kentucky case over whether the mix of drugs that state uses to put prisoners to death constitutes cruel and unusual punishment.

What the commentators said

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Berry’s stay “strengthened” the “de facto moratorium on the death penalty,” said David R. Dow in The Washington Post (free registration). Executions have already been halted in Virginia and Texas since the Sept. 25, when the Supreme Court announced it would hear the Kentucky case. But, for some reason, the justices refused to intervene in a Texas case that came before them hours after the moratorium began. But that’s “typical of the arbitrariness and brazen disregard for legal principle that characterizes most death penalty cases.”

Death penalty cases also “cost a lot,” said Georgia State University law professor Anne Emanuel in The Atlanta Journal-Constitution. That’s why a Georgia judge has had to approve a defense budge of $1.2 million and counting for Brian Nichols, who has confessed to killing a judge, a court reporter, a deputy sheriff, and a customs agent in 2005. It’s hard to stomach taking millions from taxpayers to defend someone who has “outraged us and broken our hearts,” but the alternative is “putting someone on trial for his life” without the resources to defend himself.

The moratorium won’t last forever, said Jonathan Simon of the University of California—Berkeley School of Law in his Governing through Crime blog. “Even if the current method of lethal injection is found wanting, it is likely that some altered method will ultimately prove acceptable.” But going for months without executions will certainly fire up state politicians, who love to “blame the courts for favoring the interests of murderers over victims” and stir up “the public's darkest fears of crime.”

“Stop quibbling about how, and why and with what method to do it,” said the Detroit Free Press in an editorial, “and begin talking forthrightly about whether the greatest nation on Earth ought to engage in behavior that you have to visit Tehran or Rangoon to see elsewhere.”