Pick your death penalty poison, Indiana

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In the U.S. Supreme Court’s ruling on Oklahoma death row inmate complaints that a new drug cocktail was leading to barbarously botched executions, the upshot was simple: You got a better method?

No? Then we’re good here, a 5-4 majority decided — prompting more liberal justices to protest with references to the potential of prisoners being “drawn and quartered, slowly tortured to death or actually burned at the stake.”

Outside the hyperbole of Justice Sonia Sotomayor’s dissent — and the caustic reply to the dissent via Justice Antonin Scalia — the ruling leaves hanging the fact that Indiana is in a similar situation as Oklahoma.

The only differences are the name brands going into the execution cocktail, now that supplies of the proven sodium thiopental — the barbiturate once used in a three-stage process — are gone.

The question is, as Indiana contemplates what to expect in a switchover to a new sedative in its lethal injection protocol: Does that sort of pick-your-poison conclusion offer enough confidence to carry on?

With the ruling, the justices in the majority effectively put that question back on Indiana and the other 30 states still using the death penalty.

It’s another chance to pause and rethink. Is the death penalty really worth it?

Justice Stephen Breyer picked at that scab in a dissent that asked whether it was time to reconsider whether capital punishment goes against the Eighth Amendment’s protection against cruel and unusual punishment. He called out the death penalty, reinstated by the court in 1976, for “fundamental constitutional defects: 1. Serious unreliability. 2. Arbitrariness in application. 3. Unconscionably long delays” between sentencing and execution.

“Almost 40 years of studies, surveys and experience strongly indicate, however, that this effort has failed,” Breyer wrote, referencing studies that suggest 4 percent of those who land on death row are innocent.

Justice Antonin Scalia scoffed, calling Breyer a “drum major in this parade” against capital punishment and knocking his argument as little more than “gobbledy-gook.”

“Welcome to Groundhog Day,” Scalia wrote, saying he “would not presume to tell parents whose life has been forever altered by the brutal murder of a child that life imprisonment is punishment enough.”

Scalia’s thought: “Capital punishment presents moral questions that philosophers, theologians and statesmen have grappled with for millennia. The framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the people to decide.”

Fair enough. So the question is, Hoosiers, should Indiana stick with this?

Last time we checked in, Indiana was being petitioned by Par Pharmaceutical, a Woodcliff Lake, New Jersey, maker of Brevital, the state’s sedative of choice: Please, don’t include our drug in the execution cocktail.

Indiana Department of Correction officials were confident the drug would do the job. Then again, Oklahoma officials had the same confidence in midazolam, the barbiturate that came under Supreme Court scrutiny.

But Par Pharmaceutical’s objections aren’t far removed from the escape made by Hospira, a company that protested the lethal injection use of its products before it quit making sodium thiopental after moving manufacturing to Italy, where officials pressured the firm to stop making a drug used in executions.

As drug companies distance themselves, either by the end of manufacturing or protests as unwitting accomplices, the state could be cornered in a death penalty industry in which ingredients of lethal injections become increasingly unavailable or increasingly unpredictable.

You got a better method? Maybe not for long — if one is actually reliable now.

Will it really take the return of the electric chair or a firing squad or some other means less palatable under the Eighth Amendment to bring Indiana around on this?

There’s no sympathy here for criminals who commit the most heinous crimes. But isn’t the same purpose met — and at less expense, factoring in an appeals process that can take two decades to wind out — with life without parole?

The nagging misgivings that resurfaced this week in Breyer’s dissent are difficult to shake. Breyer might just be a drum major, but in a form of justice as final as the death penalty, his gobbledy-gook amounts to reasonable doubt.

And as Scalia implied, it’s up to Indiana to do something about it.

Dave Bangert is a writer for the (Lafayette) Journal and Courier. Send comments to [email protected].

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