Welcome to the eighty-second installment of Subrosas SCOTUS Interruptus, a quasi-weekly column dedicated to keeping the SuicideGirls.com community abreast (hey-o!) of the Courts important decisions, argument schedule and whatever else is relevant for that particular week. As always, a record of the opinions published by the Court can be found on their website here.

Last month, the lady and gents at the Court raised a few eyebrows by agreeing to hear the case of Baze v. Rees, a death penalty case that doesnt challenge the constitutionality of capital punishment, but rather brings up the issue of whether execution by lethal injection violates the Eighth Amendments ban on cruel and unusual punishment. There, the condemned is basically arguing Hey, I dont so much mind that you kill me, but please dont kill me like that! It might hurt, see. Its one of those completely-logical-and-yet-ridiculous-sounding arguments that makes me love the law so much.

It actually makes sense that the court granted certiorari here. In order to get a case on the Supreme Court docket, you need only four Justices to agree to hear the case. Justices Ginsberg, Breyer, Souter and Stevens have a pretty solid anti-death penalty voting record, whereas Scalia, Thomas, Alito and Roberts are old-school Hangin Justices. As always, the wild card is Justice Kennedy. Now, given the general conservative lean of the current Court, you might expect the liberal justices to not want to vote to hear the case here. Basically, if you lose you risk setting up bad precedent that will be much more difficult to fix down the road. Better save the battle for a better time, you might say.

However, Kennedy, for all his pro-executive, pro-authority, pro-religion in government, anti-affirmative action and anti-integration viewpoints is also a pretty strong Catholic with a Catholics view on the death penalty. In short, hes not so much a fan. It was Kennedy who wrote the opinion in Roper v. Simmons that outlawed capital punishment for minors. The Roper opinion was, in typical Kennedy fashion, almost literary in the way it deconstructed the arguments for capital punishment and deftly wove a discussion of international norms into the cruel and unusual punishment analysis. If other countries considered the execution of minors to be barbaric and did not use it, Kennedy argued, then the practice was cruel, unusual and unconstitutional.

So you can see why it makes sense for the liberal justices to vote to hear the case. With Kennedys analysis in Roper on the books, they stand a good chance at winning. Theres also an added bonus here that they probably anticipated. While the merits of the case wont be decided for several months, by simply agreeing to hear Baze, they also managed to put a de facto moratorium on the practice of lethal injection in the United States.

The Supreme Court has not issued anything like a nationwide moratorium on the lethal injection method of capital punishment and it is not likely to do so. But an increasing number of lower court judges appear to be reading the Courts planned review of the constitutionality of the most widely-used drug protocol for use in death chambers to be a strong call for caution in going forward with executions.

The Court on Sept. 25 agreed to rule on the case of Baze v. Rees (07-5439), raising the question of whether it violates the Eighth Amendment ban on cruel and unusual punishment to use the common three-drug formulation to carry out the death penalty, because the protocol is claimed to result in real pain and suffering before the execution is completed. The Court has not been asked to delay all lethal injections until it rules on the Baze case, and it is not clear that anyone would have the authority to ask the Justices for that kind of order, or that the Court would have the power to impose such a moratorium while the Baze case is pending. (It could do so, under its supervisory authority, over federal courts, but most death penalty cases arise in state courts.)

But it is now evident, from documents filed in various death penalty cases since Sept. 25, and from the content of the Supreme Courts own order in an Arkansas case on Tuesday, that the effect of the grant of review in Baze is being debated actively in each case where an execution is imminent in a state using the specific three-drug protocol.

In short, lower federal and state courts are freaking the fuck out and refusing to execute anyone via lethal injection in the interim. Again, it makes sense. Wouldnt they look like assholes if they stuck a needle in some dudes arm today and then three months from now the Justices told them it was a constitutional no-no? Yeah. They would.

Adding to the fun is the fact that the Court itself is passing out stays of execution like theyre neck bandanas at a hipster party.

The Supreme Court stopped the execution of Virginia death row inmate Christopher Scott Emmett yesterday, a move that legal experts said might signal a nationwide halt to lethal injections until the justices decide next year whether the procedure amounts to cruel and unusual punishment.
The court granted the stay of execution just four hours before Emmett was to be put to death. It is the second time the justices have stopped an execution since agreeing to decide whether lethal injections carry the potential for pain that would violate constitutional standards.
"I think this is a de facto moratorium," said Douglas A. Berman, a sentencing expert at Ohio State University's law school. Since almost all executions are carried out by lethal injection, he said a halt "would mean the most profound hiatus in the operation of the death penalty in at least two decades."

How many states use lethal injection? All but Nebraska (who are hella old school and use the fuckin chair baybee!!! Ride the lightening, bitchezzz!!!111), and theyve got nothing scheduled.

State courts, who are not automatically under the authority of the Supreme Court, are now following the feds lead. Basically, weve got a total shut-down of the death penalty until this is decided. Good news for pinko commies like me who think the death penalty is about as barbaric a practice that we as a society endorse, but will it be good news for the actual inmates? It will depend on how strong their arguments are that lethal injection is cruel and unusual. To me, it seems pretty fucking clear.

States began using lethal injection in 1978 on the grounds that it was more humane than electrocution and the gas chamber. Almost all the states that employ lethal injection use the same combination of three chemicals: sodium thiopental, a barbiturate intended to render the inmate unconscious at the start of the procedure; pancuronium bromide, which paralyzes the muscles; and potassium chloride, to stop the heart.

Studies have shown that if the barbiturate is not administered properly, some inmates might be fully aware as the paralyzing agent cuts off their ability to breathe. Moreover, pancuronium is known to cause severe pain, but the inmate would be unable to express that.

Yeah, because theyre paralyzed. And what if the practice is found unconstitutional? What then?

That would pose a conundrum, agreed Larry Byrd, a former chief prosecutor and Sarasota defense attorney.

"Whether you agree with the death penalty or not, the United States Supreme Court, since its inception, has held you cannot execute someone in an inhumane way," Byrd said. "We tried the electric chair and caught people's heads on fire. We tried lethal injection and it took 30 minutes for someone to die. Maybe the answer is gas -- oh, we tried that. The only thing left is the guillotine or public hanging. We're going backward."

"I think anytime we're going to talk about how to kill people, it's really splitting hairs," Butler said.

Mr. Butler is exactly right. We are splitting hairs, and that seems to me to be the strongest argument against the constitutionality of the death penalty of any kind. There is no way to kill someone that is not cruel. There is no way to kill someone that is not unusual by international standards. The idea that we can kill people but only in certain ways because they might be in pain is ridiculous to me. Of course theyre going to be in pain, theyre fucking dying. Its not a beauty spa. Its legal hypocrisy and its absurd.

At any rate, death penalty advocates are bumming because their annual body count will be below average. Lets hope it stays that way.