In his latest Findlaw column, Michael Dorf criticizes the plurality opinion in Baze v. Rees for relying in part on the interest in “dignity” of an execution:
Were it not for the paralyzing effect of pancuronium bromide, then the body of an unconscious prisoner killed by potassium chloride-induced cardiac arrest might convulse in a manner that would be disturbing to witnesses. As Chief Justice Roberts wrote in his plurality opinion, the state “has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress.”
What could the Chief Justice mean by the “dignity of the procedure”? He might mean the dignity of the condemned prisoner. But, as Justice Stevens explains in his opinion, “whatever minimal interest there may be in ensuring that a condemned inmate dies a dignified death, and that witnesses to the execution are not made uncomfortable by an incorrect belief (which could easily be corrected) that the inmate is in pain, is vastly outweighed by the risk that the inmate is actually experiencing excruciating pain that no one can detect.”
It is hard to imagine that a prisoner would choose to accept the latter risk in order to further the dignitary interest identified by the Chief Justice. . . . [T]he inclusion of the pancuronium bromide in the three-drug protocol is not for the benefit of the prisoner, but for the aesthetic sensibilities of the public.
Mike draws an analogy to Gonzales v. Carhart:
In this regard, the decision in Baze bears an uncomfortable resemblance to the Court’s ruling last year in Gonzales v. Carhart. In that case, the Court upheld the federal Partial Birth Abortion Ban Act–which forbids a particular method of abortion in which a fetus is partially delivered into the birth canal before being killed. The basis for the ban was not that this abortion method was especially unsafe for the woman; on the contrary, there was evidence that in certain circumstances it is the safest abortion method.
I think you could also draw analogies to lots other opinions that rely heavily on dignity interests in constitutional interpretation. Important examples would include Lawrence v. Texas, 539 U.S. 558 (2003) (“It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.); Roper v. Simmons, 543 U.S. 551 (2005)(“By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.”); and Alden v. Maine, 527 U.S. 706 (1999) (“Federalism requires that Congress accord States the respect and dignity due them as residuary sovereigns and joint participants in the Nation’s governance. Immunity from suit in federal courts is not enough to preserve that dignity[.]”).
The common theme among these opinions? Here’s a hint: A person who MiKe knows well.