Graças a iniciativa do Prof Farlei Martins, integrante deste blog, tivemos acesso noticia publicada em jornal norte-americano a respeito da decisão da Corte Suprema a respeito da Emenda Constitucional nº 8 sobre a adoção nos Estados Unidos de penas cruéis. Além de outras estratégias contra a aplicação de pena de morte na sociedade americana, há um direcionamento de que a pena morte seria inconstitucional pelo seu carater de crueldade. No caso relatado abaixo sobre a aplicação de injeção letal na pena de morte no Estado de Kentucky, fica esclarecido que, em nenhum momento, a Corte Suprema americana adotu uma moratória sobre a pena de morte por seu sentido de crueldade até que se encontrasse uma solução. Esta informação equivocada circulou no Brasil. A Corte maior dos Estados Unidos reconheceu, na verdade, que examinaria cada caso individulamente. É relevante nesse voto o raciocínio condutor do Chief Justice Roberts a favor da adoção de injeção letal porque há alternativas, como é o caso da anestesia e das doses aplicadas, para evitar dor. O texto abaixo mostra que, apesar do fato da decisão ter alcançado sete votos a favor da injeção letal no Estado de Kentuchy contra dois votos pela não aplicação, constata-se uma divsão entre os justices. Cada um expressou um voto diferente a resepeito do como entendia ser a favor da injeção letal para a pena de morte. Por fim, discute-se a aplicação de pena de morte em determinados tipos de crime.
Supreme Court Allows Lethal Injection for Execution
By LINDA GREENHOUSE
New York Times
Published: April 17, 2008
WASHINGTON — The Supreme Court on Wednesday upheld Kentucky’s method of
execution by lethal injection, rejecting the claim that officials there
administered a common sequence of three drugs in a manner that posed an
unconstitutional risk that a condemned inmate would suffer acute yet
While the 7-to-2 ruling did not shut the door on challenges to the lethal
injection protocols in other states, it set a standard that will not be easy
to meet. Chief Justice John G. Roberts Jr. said in the court’s controlling
opinion that challengers must show not only that a state’s method “creates a
demonstrated risk of severe pain,” but also that there were alternatives
that were “feasible” and “readily implemented” that would “significantly”
reduce that risk.
“A slightly or marginally safer alternative” would not suffice, the chief
justice said. He added: “Simply because an execution method may result in
pain, either by accident or as an inescapable consequence of death, does not
establish the sort of ‘objectively intolerable risk of harm’ that qualifies
as cruel and unusual” under the Eighth Amendment.
At issue in the case was not the constitutionality of lethal injection
itself, the method specified by 35 of the 36 states that have the death
penalty. (Nebraska is the exception.) Rather, the challenge was to the
details of the injection’s administration: the chemicals used, the training
of the personnel, the adequacy of medical supervision, and the consequences
and risk of error.
The legal question was what standard to apply in evaluating the risk. The
appeal, brought by two men on Kentucky’s death row, Ralph Baze and Thomas C.
Bowling, each convicted of double murders, asked the court to find the
Kentucky protocol unconstitutional if it imposed an “unnecessary risk” of
error in light of potential alternatives. Chief Justice Roberts, applying
the more rigorous standard he outlined, said the risks identified by the
inmates were not “so substantial or imminent as to amount to an Eighth
While most states use a method similar to Kentucky’s, a number of them have
adopted additional safeguards to ensure that an inmate is properly
anesthetized by the initial drug in the sequence, a barbiturate, before
administration of the second two, which paralyze the muscles and stop the
In fact, Justice Ruth Bader Ginsburg, in a dissenting opinion, listed
several of these states and described the extra steps they have taken, to
show that Kentucky could and should be required to do a better job. The
states she named were Alabama, California, Florida, Indiana and Missouri.
The other dissenter, Justice David H. Souter, signed her opinion.
Dozens of executions have been delayed around the country in recent months.
Gov. Tim Kaine of Virginia, a Democrat, announced within hours of the ruling
that he was lifting a moratorium on executions he had imposed, and other
states were expected to follow. The Supreme Court itself had not imposed a
general moratorium, instead granting individual stays of execution in cases
that reached the court. Those stays will dissolve automatically when the
justices deny the underlying appeals, as they are expected to do in the next
week or two.
The court issued its decision on the same morning that it heard arguments in
another closely watched death penalty case, a challenge to Louisiana’s
application of capital punishment for the crime of child rape. The two men
on Louisiana’s death row for raping young girls are the only two people in
the country who have been sentenced to death for a crime in which death did
In the Kentucky case, there was considerably less agreement among the
justices than the vote of 7 to 2 might indicate. Six of the seven justices
in the majority wrote separate opinions. The chief justice’s opinion was
signed by only two others, Justices Anthony M. Kennedy and Samuel A. Alito
Jr. Justice Kennedy was the only member of the majority who did not write
Justice Alito wrote a separate opinion suggesting that he regarded the chief
justice’s opinion as insufficiently conclusive and therefore open to
“misinterpretation” by those who might see it as an invitation to
“litigation gridlock.” Justice Alito said that because ethics rules bar most
medical professionals from taking part in executions, challenges based on
the absence of doctors and nurses from the execution chamber must fail
because an alternative protocol that would require their participation
“cannot be regarded as ‘feasible’ or readily available.”
Another member of the majority, Justice John Paul Stevens, said in his
separate opinion that he felt bound by the court’s precedents to uphold the
constitutionality of the Kentucky protocol. But he went on to call for
abolishing the death penalty, both as a matter of policy and of Eighth
Amendment jurisprudence. “State-sanctioned killing,” Justice Stevens said,
was “becoming more and more anachronistic.”
Justice Stevens voted with the majority that restored capital punishment in
1976, his first year on the court. But he said he had changed his mind,
based on “my own experience” in seeing how the death penalty is actually
carried out in a changing climate. Among the factors he singled out was a
series of decisions that he said had “endorsed procedures that provide less
protections to capital defendants than to ordinary offenders.”
The set of opinions in this case, Baze v. Rees, No. 07-5439, put the
personalities and priorities of the individual justices on display as much
as any case in recent years.
There was Chief Justice Roberts, including in his opinion a discourse on the
need for courts to step aside. The Kentucky inmates’ proposed approach, he
said, “would embroil the courts in ongoing scientific controversies beyond
their expertise and would substantially intrude on the role of state
legislatures in implementing their execution procedures.”
There was Justice Stevens, the court’s senior member, who turns 88 on
Sunday, taking a singular path as he has so often during his long career.
There was Justice Antonin Scalia, pugnacious as ever, sufficiently provoked
by Justice Stevens’s position as to demand, in a separate opinion, “What
prompts Justice Stevens to repudiate his prior view and to adopt the
astounding position that a criminal sanction expressly mentioned in the
Constitution violates the Constitution?” He added, “Purer expression cannot
be found of the principle of rule by judicial fiat.”
There was Justice Clarence Thomas, joining the majority judgment while
expressing the view that “this is an easy case” because “a method of
execution violates the Eighth Amendment only if it is deliberately designed
to inflict pain,” which Kentucky’s protocol obviously was not.
There was another member of the majority, Justice Stephen G. Breyer, digging
deeply into the scientific evidence and concluding that, while there were
grounds for “legitimate concern,” he could not find “either in the record or
in the readily available literature that I have seen, sufficient grounds to
believe that Kentucky’s method of lethal injection creates a significant
risk of unnecessary suffering.”
And there was Justice Ginsburg, writing a carefully modulated, almost
minimalist dissenting opinion in which she did not go so far as to declare
Kentucky’s protocol unconstitutional. Rather, she said, the court should
“vacate and remand” the Kentucky Supreme Court’s decision that upheld the
protocol, instructing it to consider whether the state’s omission of
safeguards used by other states “poses an untoward, readily avoidable risk
of inflicting severe and unnecessary pain.”
The argument about pain is based on the sequence of drugs used by Kentucky
and other states. Pancuronium bromide, which is a paralyzing agent, and
potassium chloride, which stops the heart, would both cause excruciating
pain if a person was not first placed under deep anesthesia. If the
anesthesia is insufficient, the paralyzed inmate would not be able to move
or cry out.
There have been various problems with lethal injection executions, including
evidence of insufficient anesthesia in some cases. One hurdle for the
Kentucky challengers was that the state has carried out only one execution,
which proceeded without apparent problems, since adopting the method in
Donald B. Verrilli Jr., who argued the case for the two inmates, said in an
interview that it still remained open to challengers to argue that even in a
state with a protocol that looked acceptable on paper, officials were not
carrying it out with sufficient care.
Immediately after announcing the lethal injection decision on Wednesday, the
court turned to the argument in the Louisiana case on the constitutionality
of the death penalty for raping a child.
It has been 43 years since anyone has been executed in the United States for
rape. In 1977, with 30 men on death row for rape, the court ruled in a
Georgia case that the Eighth Amendment prohibited the death penalty for that
crime. The victim in that case, Coker v. Georgia, was a 16-year-old married
woman who was referred to as an adult throughout the opinion.
While the question presented to the court in the Coker case did not
differentiate between adults and children, the decision for years was widely
interpreted as barring capital punishment for any rape. Nonetheless,
Louisiana enacted its law in 1995, and several other states followed suit,
for a current total of five that permit the death penalty for the rape of a
The justices’ questions from the bench indicated that most saw the Coker
decision as limited to adult victims, with the issue of whether death could
be imposed for raping a child still an open one, not governed by precedent.
Patrick Kennedy, the defendant in this case, Kennedy v. Louisiana, No.
07-343, was convicted of raping his 8-year-old stepdaughter.
Only in Louisiana could he have received the death penalty, because the
other states — Montana, Oklahoma, South Carolina and Texas — apply their
laws only to those with prior convictions. Mr. Kennedy’s lawyer, Jeffrey L.
Fisher, argued that this demonstrated a “national consensus” against the
penalty, at least for a first-time offender