Who formed constitutional laws? It is ironically an idea by the same human race which is subjected to capital punishment. The recent deliberation aired verbal and moral stabs against such punishments when the Supreme Court ruled 5-4 to uphold the use of a controversial drug used in lethal injections. Justices voted in an Oklahoma case that using the sedative midazolam—which in some instances did not perform its intended role in putting inmates in a coma-like sleep in—did not violate the Eighth Amendment prohibition on cruel and unusual punishment. But in dissent, two justices called for the court to debate whether the death penalty itself is constitutional.
Michael Meltsner, the George J. and Kathleen Waters Matthews, the distinguished Professors of Law at Northeastern University and an expert on capital punishment and Supreme Court cases assessed this ruling and weighed on whether capital punishment might one day be banned in the U.S. The wrinkle here is very striking. The court’s ruling includes that challenging a method of execution requires the proof that a less painful method exists and is available. This will strike many constitutional lawyers as odd. It only seems to make sense if the Constitution’s ban on cruel and unusual punishments is ultimately conditioned by a requirement that there be a death penalty.
Many people, including abolitionists, believe that many of these crimes deserve death. The difference is that abolitionists look at capital punishment as a system; in other words, if you can’t pick and choose fairly and rationally, then you’ve got an unconstitutional system, and looking at a horrible crime and saying “that person deserves death” is not how you determine public policy.