from BabagaNewz Magazine, Nisan 5768 / April 2008
In 1992, Ralph Baze was convicted of murder and sentenced to death. He chose to die by lethal injection, an execution method used in 36 of the 37 states that enforce the death penalty. Now, Baze is asking the Supreme Court to rule that lethal injection violates the Eighth Amendment's ban on "cruel and unusual punishment." His lawsuit against the state of Kentucky claims that the current procedure, which uses three separate drugs, not only risks inflicting excruciating pain, but also prolongs the execution, resulting in undue mental anguish. Kentucky officials argue that the one-drug alternative Baze suggests has never been tested on humans. "The potential for error in an untested methodology is much greater," says Roy Englert, who represents Kentucky.
HOW LETHAL INJECTION WORKS
First, condemned prisoners are anesthetized by an injection of sodium thiopental. Next, a shot of pancuronium bromide stops their breathing. Finally, a dose of potassium chloride stops their heart. Baze and other opponents of the three-drug combination argue that convicts who are not properly anesthetized may feel excruciating pain but be unable to communicate distress. Furthermore, they say, the second drug could make prisoners feel like they are suffocating, and the third could make them feel like their veins are on fire.
"CRUEL AND UNUSUAL"
To avoid complications that might cause tremendous pain during his execution, Baze asked the court to order prison officials to use a single drug. It's ironic, he says, that when veterinarians put animals to sleep, they now use a single drug instead of three because they believe it's more humane. The Eighth Amendment of the Constitution prohibits "cruel and unusual punishment," although, notes Justice Antonin Scalia, "there is no painless requirement" in the Constitution.
TRIED AND TRUE
The state of Kentucky argues that its method of lethal injection has been successfully used hundreds of times without any problems. "Kentucky has safeguards to make sure that the inmate is asleep," notes Englert. On the other hand, the single drug method proposed by Baze has never been tested on humans and can take a very long time to work.
THE JEWISH VIEW
The Torah demands capital punishment for many offenses, including murder and kidnapping. The rabbis, however, developed rigorous safeguards to ensure that only the guilty would be punished. As a result, Jewish courts rarely imposed capital punishment. However, to maintain authority, Jewish law developed procedures that permitted the death penalty even if the legal safeguards weren't met. In the Baze case, the question is not whether the death penalty is permissible, but whether capital punishment must be painless. The principles of inui hadin, which prohibits delays in carrying out judgment, and b'ror lo mitah yafah, choosing a favorable death for the condemned, show the importance of minimizing a person's suffering, even someone on death row. According to inui hadin, an execution must take place without delay because waiting to die causes the criminal needless anxiety. The Talmud (Sanhedrin 45a) further requires that the condemned be given a favorable death, i.e., as quick and painless as possible, because "You shall love your neighbor as yourself" (Vayikra 19:18) obligates us to care for others, even for a criminal who has lost his right to continue living.