What's the best way to kill a man? In the caveman days, they clubbed you on the head. Later on, they got you by firing squad, but no one wanted to clean up the blood, so someone invented the electric chair. That wasn't good enough, either. The body shakes and goes into convulsions and even the executioner feels sorry for the deadly killer. So lethal injection was devised as a "humane" alternative. That was good enough for the state-sponsored executioners, and today it's good enough for the Supreme Court, which upheld lethal injections as consistent with the Eighth Amendment's prohibition against cruel and inhumane punishment.

A judge once told me that he thought that Supreme Court decisions were too long. He wasn't kidding. The case upholding lethal injections consists of 97 pages, including dissenting opinions. Very few people will read the whole case. Taken from the summary of the court ruling (with some modifications for readability), here's the gist (which got three votes on the Court):

1. The legal conclusions that got the most votes on the 9-member court are that "To constitute cruel and unusual punishment, an execution method must present a 'substantial' or 'objectively intolerable' risk of serious harm. A State’s refusal to adopt alternative procedures may violate the Eighth Amendment only where the alternative procedure is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain." And, "Because some risk of pain is inherent in even the most humane execution method, if only from the prospect of error in following the required procedure, the Constitution does not demand the avoidance of all risk of pain."

2. Properly administered, the lethal injection is not likely to cause substantial pain. Sure, if someone screws up the process, lethal injection is like torture, and the Supreme Court has said that certain means of capital punishment, like torture and beheading, are unconstitutional. That risk is minimized where States use lethal injections."The Court has held that an isolated mishap alone does not violate the Eighth Amendment, because such an event, while regrettable, does not suggest cruelty or a “substantial risk of serious harm.'"

If you want the good stuff in a Supreme Court opinion, you can read the summary of the ruling at the start of the decision and then jump straight to the separate opinions of the Court's most conservative members, Justices Thomas and Scalia, who believe that the Constitution can only be interpreted by figuring out what the drafters were thinking in the late 1700s, when the Constitution was written. I am not kidding about this. This is called original intent jurisprudence. I refer to Justices Thomas and Scalia as "the good stuff" not because I like what they stand for (I don't) but because you can't believe what you are reading and hope to the Holy God that another Republican doesn't get elected in 2008 who can appoint more guys like this.

Justice Thomas thinks that the purpose of the Eighth Amendment's prohibition against cruel and unusual punishment is directed at sadistic torture in the form of death penalty punishments, like disemboweling the killer or burning him at the stake. That's how they did in centuries ago, and of course those methods are frowned upon today, as they apparently were when the Constitution was written. He thinks that the best way to look at these cases is to disregard any risk analysis, i.e., whether there is a substantial risk of severe pain, which is the analysis adopted by the three Justices who wrote the main opinion. He writes:

I reject as both unprecedented and unworkable any standard that would require the courts to weigh the relative advantages and disadvantages of different methods of execution or of different procedures for implementing a given method of execution. To the extent that there is any comparative element to the inquiry, it should be limited to whether the challenged method inherently inflicts significantly more pain than traditional modes of execution such as hanging and the firing squad.

In other words, if lethal injection did create a substantial risk of serious pain, that would be legal under the Constitution, at least according to Justices Thomas or Scalia. The good news is that Thomas and Scalia are in the minority on issues like this, as even the other conservative members of the Court reject their far-out views.

The good news is that an encouraging opinion issued in this ruling by Justice Stevens suggests that the death penalty should be discarded as a means of punishment. He writes:

I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

But the bad news is that Justice Stevens is in his 80's and he won't be around forever. The next president will appoint his replacement. It is highly unlikely in this political climate that any president, Democrat or Republican, will appoint someone to the Supreme Court who opposes the death penalty.