Does the three-drug cocktail used by the majority of states that
impose the death penalty violate the Eighth Amendment to the
Constitution, which prohibits “cruel and unusual punishment”?
The Supreme Court recently heard arguments on this question in
Baze v. Reese, a case in which the petitioners are Kentucky
prisoners condemned to death. I had a clear picture of the legal
question after reading the briefs. But I found myself pondering
a larger moral question: Why should a decent society ban “cruel
and unusual punishment” in the first place? If you read only the
briefs in Baze, you might get the sense that the purpose of the
prohibition is narrow: to eliminate physical pain from
punishment. The legal question is whether the Eighth Amendment
prohibits all “unnecessary risk of pain and suffering” in the
imposition of the death penalty, or simply the “substantial risk
of wanton and unnecessary pain, torture, or lingering death.”
The prisoners claim that if the administration of the three-drug
cocktail is botched