|Would it be just to compel citizens of death penalty states to take part in executions? After all, the condemned was sentenced to death in the name of the people of that state. It would be just like jury duty, except much, much worse.|
"Last June, in Davis v. Ayala, Kennedy wrote a concurring opinion that he acknowledged had nothing to do with the issues the court had been asked to resolve, launching a broadside against solitary confinement. He emphasized that Hector Ayala had spent more than 25 years on death row, largely in solitary confinement, and highlighted the dangers of such confinement to the human psyche, which have been well documented since the 18th century. Citing an 1890 Supreme Court decision, Kennedy wrote, "[T]his Court recognized that, even for prisoners sentenced to death, solitary confinement bears 'a further terror and peculiar infamy.'" He quoted that decision's description of inmates subjected to solitary before execution: "A considerable number of the prisoners fell, after even a short [solitary] confinement, into semi-fatuous condition...and others became violently insane; others, still, committed suicide."
Citing Amnesty International and international law—a habit that's irked fellow conservatives over the years—Kennedy noted that human rights groups consider America's modern treatment of death row inmates, with their long stints in solitary before execution, a form of torture. Kennedy lamented that sentencing judges have no influence on these conditions, writing, "So in many cases, it is as if a judge had no choice but to say: 'In imposing this capital sentence, the court is well aware that during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.' Even if the law were to condone or permit this added punishment, so stark an outcome ought not to be the result of society's simple unawareness or indifference.""