This is crossposted, with permission, from STOP THE ACLU. It was written by my buddy Jay. My take on this is at the bottom, in boldface.
The ACLU were at the frontlines on bringing this to through the courts. Their position is to abolish the death penalty completely, so any argument they made on the "cruelty" of the lethal injection mode was only to set up for a greater argument to have the death penalty completely abolished. It was a pre-cursor towards setting a precedent. It comes as no surprise that the dissenters were Justices Ruth Bader Ginsburg and David Souter.
Voting 7-2, the conservative court led by Chief Justice John Roberts rebuffed the latest assault on capital punishment, this time by foes focusing on methods rather than on the legality of the death penalty itself. Justice John Paul Stevens voted with the majority on the question of lethal injections but said for the first time that he now believes the death penalty is unconstitutional.
The court turned back a challenge to the procedures in place in Kentucky that employ three drugs to sedate, paralyze and kill inmates. Similar methods are used by roughly three dozen states.
Death penalty opponents said challenges to lethal injections would continue in states where problems with administering the drugs are well documented.
The case decided Wednesday was not about the constitutionality of the death penalty generally or even lethal injection. Instead, two Kentucky death row inmates contended that their executions could be carried out more humanely, with less risk of pain.
The inmates "have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment," Chief Justice John Roberts said in an opinion that garnered only three votes. Four other justices, however, agreed with the outcome.
Roberts also suggested that the court will not halt scheduled executions in the future unless "the condemned prisoner establishes that the state's lethal injection protocol creates a demonstrated risk of severe pain."
States can avoid this risk by using the three-drug procedure approved in the Kentucky case, Roberts said.
The ACLU filed a friend-of-the-court brief in the case, Baze v. Rees, an appeal by two men on Kentucky's death row. The ACLU argued that the controversial execution practice has been facilitated by the excessive secrecy surrounding the development and implementation of lethal injection protocols in most states.
The following can be attributed to ACLU Legal Director Steven R. Shapiro:
"The Eighth Amendment's prohibition on cruel and unusual punishment was meant to embody evolving standards of decency. Properly understood, the standard should prohibit a method of execution that creates an unnecessary risk of excruciating pain. The Supreme Court today held otherwise and, in the process, upheld a lethal injection protocol that veterinarians in nearly half the states, including Kentucky, are prohibited from using when putting our pets to sleep."
Straight from the ACLU playbook. They embody the typical liberal...advocate of the "right" to kill innocent babies, defenders of guilty criminals. Good to see the Supreme Court used common sense, though Steven's opinion is worrisome.
I don't like Jay's "wrap-up" paragraph, because he invokes other issues that the ACLU is involved with. He was right, however, in asserting that their overall goal is the abolishment of the death penalty, and this was an opportunity for them to advance that cause. I would have pointed out that people on the left often care more for animals than humans, so the "veterinarian" comment was particularly funny. They know how to play to their target audience, I'll give them that.
I wonder if the methods of "putting pets to sleep" that ARE acceptable in Kentucky, and "nearly half the states" would be contested by the ACLU, if used by the state to execute prisoners. Somehow, I don't think that the ACLU would support them either. They just wouldn't be able to use such ridiculous rhetoric, in their press statements.
On the actual issue, I agree with Justice Roberts' conclusion. If you rule that "maladministration" of a procedure constitutes "cruel and unusual" punishment, then feeding inmates might be ruled unconstitutional, if it causes them suffering or sickness. There are remedies for "maladministration" of the death penalty injections, but ending lethal injection is too sweeping a judgement for the court to make.
This gets back to my oldest criticism of the ACLU. They find it easier to change, create, or destroy laws through the courts, instead of through legislative means, with popular support. STOP THE ACLU, and legislation through torts.