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A Losing Strategy For Death Penalty Opponents

Orin Kerr over at The Volokh Conspiracy has a nice primer on Baze v. Rees, the Kentucky case the Supreme Court will hear next week challenging the constitutionality of lethal injection as a method of execution. It's particularly interesting that one of the key questions in the case--is there any readily available method of execution that would involve less risk of pain than the current three-drug cocktail?--remains hazy, in part because doctors are prohibited from participating in executions. But Kerr is under the impression that this question is something of a sideshow to the larger issue of the constitutionality of the death penalty:

Strategically, I think it's fair to assume that counsel for the petitioners have goals pretty different from what they're forced to argue. Presumably counsel's the goal is to end executions, not minimize the chances of pain during them.

I'm not sure this is fair: one can certainly believe that the death penalty itself is constitutional, but needlessly exposing the condemned to excruciating agony isn't. Kerr may well be right that Baze's lawyers aren't of that opinion, but my sense is that it would be a huge tactical blunder for death-penalty opponents to push for a judicially imposed ban on capital punishment just as their cause is gaining traction at the state level (at least outside of Texas). New Jersey's decision to abolish the death penalty garnered attention earlier this month, but even more conservative states like New Mexico, Montana, and Nebraska have moved in that direction, and executions nationwide are at a 13-year low.

Of course it's possible to think of instances in which the Court has declared unconstitutional laws which were gradually becoming anathema to public opinion anyway without provoking much of a backlash--Loving v. Virginia, for example. But between the shaky legal case for the death penalty's unconstitutionality and its enduring popularity in public opinion, an absolute federal ban seems like it might well backfire. The death penalty is much more appealing in the abstract than when one considers the specifics of how it actually works, and a Supreme Court decision banning it would shift the public debate from the latter arena (where it is now, which helps explain why the practice is on the wane) to the former.

--Josh Patashnik