Baze v. Rees, 128 S. Ct. 1520; 170 L. Ed. 2d 420 (2008)

Facts—Ralph Baze and Thomas C. Bowling were each convicted of two counts of capital murder and sentenced to death by lethal injection in Kentucky. They sued John D. Rees, the commissioner of Kentucky’s Department of Corrections and other state officials to have its protocol of injecting three successive drugs declared to be cruel and unusual punishment because of the possibility that it might inflict unnecessary pain.

Question—Does Kentucky’s procedure for injecting three successive drugs in performing lethal injections violate the cruel and unusual prohibition of the Eighth and Fourteenth Amendments?


ReasonsC.J. Roberts (7–2). Thirty-five other states and the federal government impose capital punishment for some crimes. Each uses lethal injection. Although the Court had previously upheld hanging and electrocution, lethal injection represents progress toward greater humaneness. Kentucky uses three drugs, sodium thiopental, which produces unconsciousness, pancuronium bromide, a paralytic agent, and potassium chloride, which leads to cardiac arrest. Kentucky requires that a certified phlebotomist and an emergency medical technician be on hand. All forms of capital punishment contain some risk of pain, and the Court has never invalidated a particular procedure for inducing death. In this case petitioners are not as concerned about the proper application of the drugs as about the possibility that the state may apply them improperly, but “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.” Moreover the suggested one-drug protocol has its own problems and is not used in other states. Thus, “it is difficult to regard a practice as ‘objectively intolerable’ when it is in fact widely tolerated.” The state court found that laypersons could properly mix the chemicals required and “the asserted problems related to the IV lines do not establish a sufficiently substantial risk of harm to meet the requirements of the Eighth Amendment.” Although there are questions about the three-drug protocol, states have generally considered the advantages to out weigh the disadvantages. The court will not intervene absent “a demonstrated risk of severe pain” that has not been established here.

J. Alito, concurring. This case does not involve the constitutionality of capital punishment per se, and objections to current protocols must take into account that the medical profession has rules against participating in executions. The evidence questioning the current protocols is subject to dispute, but the current consensus appears to favor three drugs over one.

J. Stevens, concurring in judgment. Current decisions to retain the death penalty are largely “the product of habit in 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.” Traditional justifications of incapacitation, deterrence, and retribution are anachronistic. As the Court once stated in Furman, “‘[A] penalty may be cruel and unusual because it is excessive and serves no valid legislative purpose.’” Death-qualified juries, the risk of error, the “risk of discriminatory application of the death penalty,” and the “irrevocable nature of the consequences” of the penalty all need to be reconsidered.

J. Scalia, concurring. Stevens’s interpretation is unacceptable because it attempts to assert judicial opinion for that of democratically-elected bodies and explicit language within the Constitution permitting the death penalty. Nor are Stevens’s assertions supported by the evidence. J. Stevens’s opinion is not relevant unless one is to elevate “rule by judicial fiat” over the will of the people.

J. Thomas, concurring. The Court should get back to the “original understanding” of the Eighth Amendment, which was designed to permit the penalty but forbid needless cruelty. The Court is not in a position to apply “comparative-risk standards.”

J. Breyer, concurring. The arguments against the current procedures are outweighed by other scholarship.

J. Ginsburg, dissenting. The second and third drugs administered by Kentucky can cause “a conscious inmate to suffer excruciating pain.” It is therefore important for the state to be sure the first drug sufficiently anesthetizes them. The Court should remand to see if further protocols other than the current visual observation are needed to assure this.

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