As Lenore pointed out in a recent post, the latest lethal injection debacle, last month’s botched execution of Rommell Broom*, has caused lamentably little pause among advocates of capital punishment in general, and lethal injection, in particular. Needless to say, I have to concur with her post’s rather dim assessment of humanity in this regard.

Despair not, however, or at least not just yet. There may be a silver lining to that dark and ominous cloud after all. Aside from the obvious upside that Broom has not yet been executed, some additional good may come out of Broom’s harrowing experience. Today, for example, The Washington Post ran an article suggesting that the review of Ohio’s 32 executions since 1999 initiated by Governor Ted Strickland in the wake of the Broom’s ordeal has the potential to have a “wide impact” on the execution practices of other States. The immediate and long-term impact of that review will, of course, not be known until that review is completed, and the impact could lead to some much needed reforms along the progressive path to the death penalty’s abolition. Notwithstanding that, the debate generated by the Broom case and the discussion regarding what possible impact Ohio’s botched execution will have on current lethal injection protocols in other States raise some troubling questions about what impact, if any, Ohio’s review will have on prevalent opinions regarding the humaneness of the use of lethal injection as a form of capital punishment.

Undoubtedly, many of the other 35 States (as well as the Federal government) that use the same three-drug cocktail glowingly endorsed last year by the U.S. Supreme Court in its Baze v. Rees decision will be paying attention to Ohio’s review. States would arguably take advantage of any lessons learned from such a review as they tinker with and tweak their lethal injection protocols to keep them safely insulated from legal challenges and the problems and inconveniences such challenges pose to the States (And that is by no means to discount or trivialize the possibility, however small, that the review could lead to major reform of, or steps toward abolishing, the death penalty in Ohio or elsewhere; it wouldn’t be the first time, after all.) Still, State’s have in mind some more “pragmatic” concerns. For one, litigation is expensive, time-consuming, and largely undermines a State’s somewhat misplaced interest in swiftly meting out their perverse version of “justice.” For another, incidents such as that which befell Rommell Broom transport the ugly and grotesque reality of executions from the “out-of-sight-out-of-mind” shelter of the penal system into the revealing (or at least what should be revealing) limelight of the public debate. So, again, other States will be closely watching Ohio’s review.

What maybe isn’t as obvious, if we believe the not entirely disingenuous statements of State actors claiming concern for the humaneness of their execution protocols, is that, contrary to the hollow praise the Baze Court lavished upon Kentucky’s lethal injection protocol as a testament to the humanitarian evolution of the death penalty, the feigned concern for the oxymoronic notion of compassionate execution can be interpreted just as easily as an ironic permutation of political subterfuge (i.e. selling the desire to kill as compassion for those one seeks to kill). I, for one, and I don’t believe I am alone in my conviction, am not convinced that the driving force behind the various States’ efforts to review and revise their execution protocols is actually compassion for those it wishes to subject to the State machinery of death, but, rather, is the self-interested concern to ensure their execution protocols do not run legally afoul of the 8th Amendment’s prohibition on “cruel and unusual punishments.”

But why wouldn’t it be reasonable, if not even respectable, for a State to be concerned with violating a Constitutional prohibition on cruel and unusual punishments?

Well, and perhaps I’m a cynic, but this concern does not seem to me to be compassion for those condemned to die or concern that cruel or unusual punishments might be problematic by any moral or ethical calculus, but instead a bare desire by many States to retain the ultimate power to take human life, to exercise that power with all deliberate speed, and to be as crafty and careful as need be to avoid the inconvenience of the “never-ending” and “abusive” litigation practices of those condemned to be executed. Fortunately for the States, the only limitation our country’s highest court has placed on this power is that such takings of human life must not be “cruel” or “unusual” as the members of that Court understand those words to mean. Oh, and by “cruel and unusual” those members apparently mean the “wanton exposure to [an] ‘objectively intolerable risk’ of pain.” Compassionate, indeed.

I’ll conclude in what may be a non sequitor by simply quoting Justice Stevens concurrence in the Baze decision (in which he quotes Justice White’s concurrence in Furman v. Georgia):

“[T]he 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.’ ”

*Note from above: As the Post article points out, Ohio’s original grant of a temporary delay of Broom’s execution has been extended while a federal court considers a defense claim that a second execution attempt would amount to cruel and unusual punishment. This is particularly interesting in light of the Court’s 1947 decision in Louisiana ex rel. Francis v. Resweber in which a plurality upheld a second attempt at executing a prisoner by electrocution after a mechanical malfunction had interfered with the first attempt.