In a challenge to Oklahoma’s use of the drug midazolam in executions, the U.S. Supreme Court on Monday upheld the state against a challenge from death row prisoners. But in a dissent to the 5-4 ruling, Justice Stephen Breyer raised a new question about the constitutionality of the death penalty.
“I would ask,” he wrote, “for a full briefing on a more basic question: whether the death penalty violates the Constitution.” Were the high court to wade into that fundamental issue regarding death as cruel and unusual punishment and thus in violation of the Constitution, it would be an epic confrontation.
Breyer’s comment came in a strong opposition view in a challenge to Oklahoma’s use of the drug, which spurred a controversy last year when a prisoner being executed appeared to suffer agony in the course of the administration of drugs.
Once again, a state confronted one of a multitude of complications inherent in the death penalty, the one penalty that once carried out cannot be corrected. The main issue, of course, in view of DNA testing and other factors in challenges to convictions is that the wrong person can be executed. Such testing, or new evidence or recanted testimony, has freed multiple prisoners, including in North Carolina.
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This state, where lethal injection also is used though the last execution was in 2006, also is confronting death penalty challenges, the most recent being legislators’ attempts to remove a requirement that a doctor be present, which many physicians say requires doctors to violate their ethics. Legal experts say executions in North Carolina will likely be held up as other legal challenges are heard by the courts. That is no loss to justice.
This hopelessly flawed penalty and the process that brings it about are expensive, time-consuming for the court system and fundamentally wrong. The purpose of the justice system is to bring about exactly that, justice. It is not to provide revenge for victims on behalf of the state. Breyer is right. There should be a high court debate on the death penalty. It is long overdue.