Yesterday the Supreme Court decided Baze v. Rees, which dealt with whether the most common method of lethal injection constitutes cruel and unusual punishment because of the dangers of pain and discomfort to an inmate. The final decision was splintered. Chief Justice Roberts announced the judgment of the court and delivered an opinion joined by Justices Kennedy and Alito. Justice Alito filed a concurring opinion, Justice Stevens and Breyer filed opinions concurring in the judgment. Justices Scalia and Thomas each filed concurring opinions and both joined the opinion of the other. Justice Ginsburg filed a descending opinion and was joined by Justice Souter. In sum, this was a royal mess.
The court’s decision does have a far reaching effect. Thirty-six states and federal government impose capital punishment for certain crimes. Lethal injection is used in every jurisdiction that imposes that penalty. The challenge before the court dealt with the Eighth Amendment's ban on cruel and unusual punishment. The petitioners argued that because of the risks that the lethal injection protocol might not be properly followed, the criminal defendant could suffer significant pain. However, the petitioners did acknowledge in oral argument that if the lethal injection procedure is properly applied, a humane death results. The Supreme Court held that "petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternative, constitutes cruel and unusual punishment."
The court observed that some risk of pain is inherent in method of execution in as much as the prospect of error exists in most procedures. The court further observed that the Constitution does not demand the avoidance of all risk of pain and carrying out executions. Of course, the petitioners did not claim that all risks must be prevented. Instead, the petitioners argued that the Eighth Amendment prohibited procedures that create an "unnecessary risk" of pain. Because of the intrinsic risk of maladministration or accidents with any execution, the court held that a condemned prisoner cannot successfully challenge a state's method of execution merely "by showing a slightly or marginally safer alternative" exists. The court feared that to allow such challenges would "transform courts into boards of inquiry charged with determining 'best practices' for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology." The court feared that the approach as urged by the petitioners "would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the roll of state legislatures in implementing their execution procedures."
The court also noted that the use of the three-drug cocktail (sodium thiopental, pancuronium romide, and potassium chloride) is difficult to regard as 'objectively intolerable' when this cocktail is used in 36 states. The court recognized that this consensus is probative, but not conclusive. The court placed much weight on the fact that the petitioners agreed that if the first drug of the cocktail is properly administered, the condemned prisoner will feel no pain.
The court averred that "a stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the state’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A state with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard."
In other words, so long as the states continue to use the three drug cocktail and follow protocols similar to that of Kentucky, they will be immune from attack under the Eighth Amendment. This decision should end the moratorium on executions currently in place.
The most interesting part of the court’s decision occurs in an exchange between Justice Stevens and Justice Scalia. Justice Stevens, of course, believes that the death penalty is unconstitutional. Justice Scalia, expressing no opinion of his own on whether the death penalty is proper, notes that it is expressly permissible under the Constitution. Justice Scalia’s opinion ends with this paragraph:
"Purer expression cannot be found of the principal of rule by judicial fiat. In the face of Justice Stevens' experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress – who retained the death penalty as a form of punishment – is dismissed as 'a product of habit and inattention rather than an acceptable deliberative process.' The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a 'thirst for vengeance.' It is Justice Stevens’ experience that reins over all."