Death penalty defendants are asking courts to find that death by lethal injection is "cruel and unusual punishment" because, apparently, it may cause pain (even though a painkiller is used in the treatment).

For defendants who are looking for relief any way they can, this is a legitimate strategy. But I really don't think that the anti-death penalty movement, which has made enormous strides in the past couple of years, should be too eager about encouraging judges to make such a decision. Legislative enactments and moratoriums by governors signal that popular attitudes are changing; decisions by judges based on novel 8th amendment theories make judges look like out-of-touch fools.