Just What America Needs: A "Personality-Driven Death Penalty"

Before we get to Justice Samuel Alito's tour de force decision on lethal injection, let's look at an article that highlights one of Justice Stephen Breyer's major objections, that the death penalty is utilized so unevenly across our land. Aside from the concentration of the death penalty in a surprisingly few number of counties, there are DA's that relish going after capital-punishment cases:

“When you start to look underneath the counties and ask, ‘Who is actually prosecuting these cases?’ you realize in most of the counties, it’s one or a limited number of prosecutors,” Mr. Smith said. For instance, in the five years since Lynne Abraham left the office of district attorney in Philadelphia, where she had secured 45 death sentences in 19 years, there have been only three death sentences.

"What you’ve ended up with,” Mr. Smith said, “is a personality-driven death penalty.”

Oh, yeah, that's the way to go about it.

Now, just to see how we can justify a painful execution, let's get inside Samuel Alito's head:

 Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.” And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.

So outlaw it already. No? Sammy, you killin' me! But wait, there's more, we discover at SCOTUSblog:

First, the Court explains, the inmates can win only if they can show that the state has a better option than midazolam – which they have failed to do.  Although the inmates had suggested that the state could use two other drugs (which had in the past been used in lethal injections), the state is no longer able to buy those drugs for use in executions.

Death-row inmates, then, have to make do with the iffy drug because they couldn't offer a better alternative, which are no longer available because Europe won't help us kill each other legally. Nice.

So current law on executions is: People on death row will have to take their chances on a more-or-less painful death because of dumb luck or not and also because they had their chance finding a better drug to let us kill them with.

That's fucked up.

Earth to Sam Alito: The Constitution has no "shit happens" clause.