The lesson from the trials of the Boston Bomber and the Bali nine is that the death penalty is always political and macabre. Last week, Dzhokhar Tsarnaev, the Boston bomber was condemned to death.
We Australians heard the news while carrying fresh memories of the Indonesian state executions of Andrew Chan and Myuran Sukumaran by firing squad. Many of us have serious questions about the efficacy of the Indonesian legal system.
The death penalty there applies not just to the most serious of offences. The appeals process seems somewhat opaque. The administrative procedures for determining the time of execution and for maximising media attention are capricious. Engaging multiple firing squads after the stroke of midnight is macabre.
The US experience indicates that no matter what the legal resources invested and no matter how robust the legal system, the death penalty is always a highly charged political reality marked by unavoidable, macabre aspects which pervert the legal system and undermine the legitimacy of state power over the individual.
Tsarnaev was not tried by twelve of his peers. He was judged by a jury chosen from a distorted sample of the Massachusetts community. The state of Massachusetts no longer imposes the death penalty for state criminal offences.
Most criminal offences are state criminal offences. Tsarnaev was convicted of federal offences which can carry the death penalty. Thus the court had to spend weeks finding a jury panel willing to impose the death penalty, chosen from a local community which has formally rejected the death penalty. He was convicted to death by a jury of likeminded persons who qualified for jury selection precisely because they differed from their fellow Bostonians of whom only 15 per cent wanted him executed.
On 20 April, the US Supreme Court declined to intervene on Alabama death penalty cases even though there is clear evidence that the Alabama state judges (presumably with an eye to their re-election) have a propensity to override jury decisions that convicted murderers receive only life imprisonment.
On 29 April 2015, the Court agreed to hear argument in the case of Glossip v Gross. The court is required now to determine whether a three drug protocol used by states like Oklahoma is constitutional. The first drug Midazolam is supposed to anaesthetise the convicted felon, while the second drug paralyses him (and it is usually a male, most probably a black male), and the third drug arrests