On January 7, 2008, the Supreme Court will hear argument in Baze v. Rees.  The issue, as framed by Orin Kerr at Volokh, is

the constitutionality of the current method of lethal injection that 35 states use to carry out the death penalty. The question: Does use of the three-drug cocktail of chemicals that states use to carry out executions amount to cruel and unusual punishment because of the risk that state officials could make an error and inadvertently cause the individual to suffer pain before he dies? The briefs of the parties and the various amici are available here.

While much of the discussion centers on the absence of an evidentiary basis to show what the level of risk of improper use of the cocktail that results in a painful death masked by physical paralysis from one of the drugs.  Or as Orin puts it,  how much of a risk of error is too much for the Constitution.  While the inadequate record presents an issue, the consensus is that cert was granted because of too many district judges left to their own devices in the face of inadequate evidence.

But we’re not lawprofs here, so let’s get down to business, shall we?  This strikes me as mind-boggling foolish.  The issue of death penalty or not is one thing, but this case assumes a death penalty and that’s not on the table.  Some of those more knowledgeable in medicine (or perhaps more knowledgeable in opiates, as the case may be), have already suggested that your basic opiate overdose will do the trick; no pain and definitely no gain.  So why are we talking about some complicated and problematic 3 drug cocktail?  They die and they feel darn good for a few minutes.

But the better solution has nothing to do with how many or what drugs.  It’s the death penalty.  If we are to presume they deserve it (I know, but we’re playing hypotheticals here), then why are we so concerned about a little pain?  We are killing them, but a little pain is a problem? 

Moreover, if putting people to death is so popular, then there is no good reason to sanitize it by making it seem like a medical procedure.  One bullet in the back of the head would do the trick, and eliminate any drug company from airing commercials about how they mix the best 3 drug cocktails around (side effects: certain death and 4 hour erection).  Obviously, it would be a total waste not to make this a new reality TV show, filmed on site in Texas.  Imagine what this show could do for the national debt?

The absurdity of arguing about the most humane means of killing people is overwhelming.  Death penalty opponents should, and must, challenge its existence, application and modalities whenever they can.  If they win, they may stop or at least forestall the state sanctioned killing of people.  This is a worthy goal, notwithstanding the stupid cases needed to get there.

What is missing in the discussion over at Volokh, where they foresee a Kennedy concurrence carrying the day, is that this is merely a proxy argument on the penalty itself.  If anything, let’s see Justice Scalia call it what it is and suggest that a good public hanging, a time-honored tradition, is what the founding fathers would have wanted for anyone deserving death.  At least, this would be an honest way to address this silly question.

Better still, let’s just put this stupidity to rest until someone comes up with a way to assure that only the guilty get convicted and we stop sticking our heads in the sand of legal fictions that say that a jury verdict of guilty is so absolutely certain that we are willing to stake someone else’s life on it.