Strange machinery of death

By way of Ohio Death Penalty Information Center, we learn of this editorial which appeared in the Denver Post:

Strange machinery of death

It's one thing for life to imitate art. But now the debate over the death penalty in America is starting to look like a parody of comedian Steven Wright's macabre question about whether they sterilize the needles used to execute criminals by lethal injection.

The state of Missouri last week told a federal judge that it cannot meet his demand to hire a board-certified anesthesiologist to assist in executing prisoners by lethal injection because it cannot find one willing to do so. It seems the doctors take seriously the line in the Hippocratic Oath, which commands: "First, do no harm."

U.S. District Judge Fernando Gaitan Jr. last month halted executions in Missouri until the state made sweeping changes in how it executes death-row inmates to ensure the there was no risk of unnecessary pain and suffering.

Last week, Missouri Attorney General Jay Nixon told the judge the state could not meet the weekend deadline for such changes. Nixon said letters were sent to 298 anesthesiologists in Missouri and southern Illinois requesting their services at executions, but none volunteered. Missouri has executed 66 prisoners by lethal injection since 1989.

Failing to find a willing anesthesiologist, Missouri officials plan to substitute other medical personnel to administer the three-drug execution procedure. "To enforce \[the judge's demand\] may effectively bar implementation of the death penalty in Missouri," Nixon wrote. "Surely that is not what the court intended."

We're not so sure about that. Judges from the U.S. Supreme Court on down display a deep ambivalence about legal executions. The high court recently issued a bizarre ruling upholding a Kansas law requiring the death penalty when jurors find mitigating and aggravating factors in a case to be exactly balanced - a situation the law calls "equipoise."

That ruling was in stark contradiction to a 1991 finding by the Colorado Supreme Court that held aggravating factors must outweigh mitigating factors to justify execution. The federal ruling won't change Colorado law. But it underscores again the apparently irresolvable contradictions surrounding the death penalty.

It is a maxim in the U.S. justice system that the burden of proof never rests on the defense. But now the U.S. Supreme Court has seemingly sanctioned a situation where a jury can tell a defendant, "Sir, we can't make up our mind about what to do with you, so we guess you have to die."

If, that is, the court can find a qualified professional willing to insert the needle.