Justice John Paul Stevens voted with the majority saying there was no evidence that the Kentucky law was badly flawed, despite having said that his thirty years on the Court has convinced him that
He suggested that the current decisions to retain the death penalty taken by state legislatures, US Congress, and the Supreme Court itself
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.
are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty....despite 30 years of empirical research in the area, there remains no reliable statistical evidence that capital punishment in fact deters potential offenders. [The process for obtaining a jury have ] purpose and effect of obtaining a jury that is biased in favour of conviction...[the risk of executing the innocent] can be entirely eliminated [by abolishing the death penalty.]
Justice Stephen G. Breyer while agreeeign with the majority noted
The death penalty itself, of course, brings with it serious risks, for example, risks of executing the wrong person, risks that unwarranted animus (in respect, e.g., to the race of victims), may play a role, risks that those convicted will find themselves on death row for many years, perhaps decades, to come... But the lawfulness of the death penalty is not before us.Justices Ruth Bader Ginsburg and David H. Souter stood alone in dissent. They said they would maintain the hold on executions because Kentucky "lacks the basic safeguards" to ensure that an inmate dies a painless death.
"I would not dispose of this case so swiftly, given the character of the risk," Ginsburg said.
In 2005, Leonidas G Koniaris MD, Teresa A Zimmers PhD, David A Lubarsky MD, and Jonathan P Sheldon MD, published an article in the British medical journal, the Lancet, "Inadequate anaesthesia in lethal injection for execution." In 43 of 49 executed inmates (88%) studied, the anesthetic administered during lethal injections was lower than that required for surgery. Toxicology reports from Arizona, Georgia, North Carolina, and South Carolina revealed that post-mortem concentrations of thiopental in the blood were below typical surgery levels, and in 21 inmates (43%) the concentrations of thiopental in the blood were consistent with awareness. In an accompanying editorial, "Medical collusion in the death penalty: an American atrocity,"
Clearly, for a substantial number of physicians, the putting to death of condemned people is not considered contrary to the precept “first, do no harm”. What justification can there be for capital punishment at all? The two main arguments for the death penalty are deterrence and retribution. Few experts believe that the threat of capital punishment is an effective deterrent. That leaves retribution. But to justify capital punishment, the retribution must be meted out fairly, and that is clearly not the case. In only 1% of murders do prosecutors seek the death penalty. Whether you receive the death penalty depends not on what you have done, but where you committed your crime, what colour your skin is, and how much money you have. The use of the death penalty not only varies from state to state (12 US states have no death penalty) but from jurisdiction to jurisdiction within a state. Repeated studies have shown a pattern of racial discrimination in the administration of the death penalty. Of the 205 people executed for inter-racial murders in the USA, for example, 193 were black defendants charged with killing a white person, while only 12 were white defendants charged with killing a black individual. 90% of defendants are too poor to hire their own lawyer—most rely on overworked courtappointed
Capital punishment is not only an atrocity, but also a stain on the record of the world’s most powerful democracy. Doctors should not be in the job of killing. Those who do participate in this barbaric act are shameful examples of how a profession has allowed its values to be corrupted by state violence.