Torture and the death penalty

[sandy levinson]

1.  There are, of course, cases, none of them so far successful before the
SC, arguing that even if the death penalty is constitutional, electrocution
is not because it is "torture" in a way that more "humane" execution is not.

2.  "Lethal injection" is, of course, the "humane" method of execution.  If
we take this at all seriously as a way of distinguishing the unacceptably
tortuous method(s) of execution from constitutionally acceptable ones,
then, as Evan suggests, isn't it clear that injection with a truth serum
could not plausibly be viewed as "torture."  Perhaps one would view it as
an unconstitutional restriction on autonomy protected by the Due Process
Clause, but I don't see how that analysis prevails so long as we continue
to allow immunity baths followed by indefinite incarceration a la Susan
McDougall for people who don't testify. (Or consider the Houston writer who
was jailed for months.)  Or do we define a "free society" as one that
merely jails people (indefinitely) who fail to sing to the state instead of
injecting them with a serum that would extract the information cleaning and
quickly (by stipulation) and allow them to return to polite society (and to
be able to explain to their friends that they truly had "no choice" about
testifying).

sandy