SCOTUS: Lethal Injection A-OK (for now)

Today the Supreme Court decided Baze v. Rees (pdf, 97 pages), a case that challenged Kentucky’s use of the wildly popular three-drug protocol for lethal injection. This blog previewed the case here.

The Court rejected the inmates’ Eighth Amendment cruel and unusual punishment challenge by a vote of 7-2, but couldn’t generate a majority opinion.

Chief Justice Roberts, writing for a plurality that included himself and Justices Kennedy and Alito, rejected a standard under which an inmate could mount a successful method-of-execution challenge just by proving that the method posed an “unnecessary risk” of pain or substantial harm. The inmate must instead prove a “substantial risk of serious harm,” and the inmates’ evidence in this case didn’t cut the mustard.

Justice Stevens wrote a concurring opinion in which he says that:

[C]urrent decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty.

Adopting a conclusion reached by Justice Byron White in a 1972 case, Stevens goes on to say that:

[T]he imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

That’s a big deal. For the first time since Harry Blackmun retired in 1994, the Court has a full-blown death penalty opponent in its ranks.

However, Justice Stevens voted to uphold the Kentucky protocol anyway. The concerns he identified don’t “justify a refusal to respect precedents that remain a part of our law,” precedents under which the death penalty itself is constitutional.

Justice Thomas (joined by Justice Scalia) concurred based on the almighty rationale of tradition. A method of execution is unconstitutional only if the legislature subjectively intended to inflict torture or severe pain. Here, Kentucky adopted the three-drug protocol because it was more humane than, say, garrotting the inmate or disemboweling him with a rusty butterknife. Ergo, constitutional.

Justice Scalia (joined by Thomas) wrote a concurrence of his own for the sole purpose of shitting all over Justice Stevens’ concurrence. Stevens said bad things about the death penalty, ya see, and that’s unacceptable in Scalia’s world.

Justice Breyer concurred based on his inability to “find, either in the record in this case or in the literature on the subject, sufficient evidence that Kentucky’s execution method poses the ‘significant and unnecessary risk of inflicting severe pain’ that petitioners assert.”

Justice Ginsburg (joined by Justice Souter) dissented. No one disputes that the second and third drugs administered during an execution would cause a conscious person horrific pain. The only issue is whether the first drug — sodium thiopental — adequately anesthetizes the inmate. Kentucky’s procedures lacked safeguards in that respect. The case should be remanded “with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentucky’s protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.”

The ruling leaves open the possibility of a successful Eighth Amendment challenge to this lethal injection protocol in a future case with a more fully developed evidentiary record.

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