About 16 years ago in Kentucky, Sheriff Steve Bennett and Deputy Sheriff Arthur Briscoe tried to arrest Ralph Baze on multiple warrants. Baze had no intention of cooperating. Instead of merely resisting the officers, he shot both of them in the back.
The brutality of these murders put Baze on death row, but his lawyers have managed to keep him two steps ahead of the executioner. Their latest tactic even wound up before the Supreme Court, in a constitutional challenge to lethal injection as a means of capital punishment. Last Wednesday, the justices rightly rejected it in a case that has come to represent far more than the immediate fate of Ralph Baze.
Since September, when the Supreme Court agreed to take up Baze v. Rees, the U.S. criminal-justice system has operated under a de facto moratorium on capital punishment. Judges at all levels stayed executions as they awaited the high Court’s ruling on lethal injection. Now they will presumably start stepping out of the way: Within hours of the decision, Florida attorney general Bill McCollum was asking the justices to let his state execute a child killer who had been scheduled to die in November. Other states have indicated their intention to move forward as well.
Baze’s advocates claimed that lethal injection violates the Eighth Amendment’s ban on “cruel and unusual punishments.” Lethal injection certainly is not unusual: It is the most widespread form of execution in the country, used by 36 states. The plaintiffs offered precious little evidence for its cruelty, either. Lethal injection may in fact be the most humane method of administering death. That is precisely why, a generation ago, it supplanted both electric chairs and gas chambers (which in turn took the place of the scaffold for much the same reason). Lethal injection performs its grim task with swift efficiency. It’s more than good enough for those who must face it.
Chief Justice John Roberts got to the heart of the matter in his majority opinion. “Capital punishment is constitutional,” he wrote. “It necessarily follows that there must be a means of carrying it out.”
The crusade against lethal injection wasn’t an honest effort to improve the ways in which states deliver death to murderers as much as a mischievous attempt to throw a monkey wrench into the legal mechanics of capital punishment. Most advocates of the lawsuit simply wanted the death penalty to grind to a halt, by any means necessary. They would have been delighted to see the moratorium on the death penalty continue indefinitely.
In resorting to legalistic trickery, the foes of capital punishment have abandoned what has always been their most powerful argument: a moral one based on principles of mercy and redemption that says governments shouldn’t kill people who may be rendered harmless through incarceration. But that argument, whatever its merits, has no constitutional standing. And it does not have the political purchase death-penalty opponents need. Polls suggest that about two thirds of Americans support the death penalty, making capital punishment one of the most popular public policies that’s routinely dubbed “controversial.”
So instead of making their argument democratically, or making a solid legal argument, they have tried to end capital punishment by judicial fiat. Their means undermine any moral value their goal may have. Reasonable people may differ on the merits of capital punishment. The proper arena for their disputes isn’t the Supreme Court, but rather the voting booth and state legislatures.