Recently, a University of Idaho professor filed a lawsuit to force disclosure of Idaho’s lethal injection drug suppliers. What is really going on?

Jay Gaskill

Jay Gaskill

Some opponents of the death penalty are shifting their attention to execution methods. They are making legal challenges in several states to every method of execution as unconstitutionally cruel. For these true believers, the very idea of making an example of a convicted murderer by execution, especially one that’s not wholly painless, is abhorrent. For others, the execution of a cold-blooded killer who has acted without any mercy is an appropriately scaled deterrent, even if the execution method includes some pain.

On April 1, the U.S. Supreme Court ruled that a death row inmate named Russell Bucklew is not entitled to an alternative method of execution just because the method his state employs would cause several minutes of pain and suffering. This was a 5-4 opinion written by Justice Gorsuch, a Trump appointee.

I have fiercely defended death penalty cases on an individual basis, a stressful ordeal for the defense. But public policy is all about saving innocent lives. Executions should never be routine; the ultimate penalty should be narrowly and carefully applied, and there should be zero doubt of guilt.

But I acknowledge that sometimes the circumstances of the murder or murders warrant extreme justice — the death penalty.

Many of my former colleagues are fiercely anti-death penalty. Many are in an “any means necessary” crusade.

Religion is invoked. The death penalty question should not be dependent on one’s theology or lack thereof. Yes, most major world religions teach justice and equity. In Rabbinical teaching, for example, an “eye for an eye” means not more than an eye for an eye. In most religious traditions, mercy is a favored option, but it is not mandatory. Even the Prince of Peace favored death by drowning for those who corrupt little children. “Better that they be tossed into the ocean with a weight around the neck” (my paraphrase of Matthew 18).

What if someone deliberately murders several people, or the murder is truly heinous? Legally and in practice, there are limits to mercy. Our leaders, secular and religious, are governed (or should be) by the duty to protect innocent lives. In practice, proportionate justice can be a harsh but effective example — conveying a warning to the deterrable predators among us.

The fiercest death penalty opponents assume without evidence that the death penalty is not a deterrent. I have spent a career defending a spectrum of criminals from the merely broken to the very worst of the worst. I can confidently report: Yes, not all murders can be deterred, but many murders can.

California’s three strikes law produced a situation where the third strike, say a rape, carries life in prison. Think like a crook whose victim is locked in a car trunk. Killing the only witness doesn’t change the sentence. A bonus killing. A life sentence is not enough.

What is cruel? The decades-long post-conviction delays while the ultimate question is litigated and re-litigated. That is torture.

Jay Gaskill, an Idaho native and local resident, spent most of his legal career as a public defender working in Oakland, California, in courtroom and jails, spending thousands of hours in face to face contact with accused criminals. None of his personal murder clients received the death penalty.

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