Erin Sheley has an interesting column in the Weekly Standard on the two death penalty cases before the Court this term. As she puts it:

In Baze, two Kentucky death row inmates--one convicted of murdering two police officers, the other of wounding a two-year-old boy and shooting his parents to death in a parking lot--challenge the three-chemical formula used by 35 states to perform lethal injection. While the defendants do not challenge the practice of lethal injection itself, they argue that the particular cocktail in use is "highly vulnerable to multiple errors, any one of which will result in the infliction of agonizing pain." They argue that any death penalty procedure creating "unnecessary risk" of suffering should be deemed cruel and unusual, and urge that "an execution procedure creates unnecessary risk where, taken as a whole, it presents a significant risk of causing severe pain that could be avoided through the use of a reasonably available alternative or safeguard."

Should this claim be accepted by the Court, the ramifications for states' administration of capital punishment would be dramatic. The Baze defendants do not assert that the risk of pain need be great, only that it be unnecessary because an alternative means of execution is available. As long as medical science continued to generate arguably less painful alternatives for the anti-death penalty movement to champion, any method in use could be deemed unconstitutional. Because a legal challenge to a procedure can result in a moratorium on its use (indeed, a three-month nationwide moratorium on lethal injection has been in effect since the Court agreed to hear Baze), the proposed standard could indefinitely prevent states from enforcing the sentences of their courts.

As Sheley alludes to, somehow this mix of science and capital punishment is toxic and inane. It's toxic to our legal and scientific institutions because the death penalty was never meant to be what it de facto has become: a medical procedure. It is inane because science can never inform the law what the permissible ceiling of acceptable pain meets constitutional muster.