The final vote was 7-2 in Baze v. Rees (07-5439), although there was no opinion that spoke for five or more Justices. The Court’s plurality adopted as a standard for assessing the validity of an execution method whether it poses a “substantial risk of serious harm.” It rejected the death row inmate’s proposal that the standard be “unnecessary risk.”...ADDED: The Chief Justice, joined by Justices Kennedy and Alito, observes that it is well-settled that capital punishment is constitutional. That being the case, "there must be a means of carrying it out."
Chief Justice John G. Roberts, Jr.’s plurality opinion said that a death-row inmate cannot win a challenge to an execution protocol “merely by showing a slightly or marginally safe alternative.” Instead, there must be proof that the options available must prevent a “substantial risk of serious harm.” A state is free to choose a procedure, Roberts wrote, if it is shown to be “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” The opinion then added: “If a state refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a state’s refusal to change its method can be viewed as ‘cruel and unusual punishment’ under the Eighth Amendment.”
Some risk of pain is inherent in any method of execution—no matter how humane—if only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.In fact, the Court has never invalidated a method of execution, he writes. In approving of execution by firing squad in the late 19th century, for example, the Court distinguished methods that were designed to add pain or degradation to the process of killing and noted that the English have sometimes disemboweled a living person before beheading him or dissected him in public.
The 3-drug protocol could be used deliberately to torture a person. If the first drug is insufficient, he could remain conscious while the second drug paralyzed him and the third drug stopped his heart. But the argument in this case was not that states were "superadding" torture, but simply that a mistake could be made. This is not, according to the Chief Justice, the "objectively intolerable risk of harm" that would count as cruel and unusual, in violation of the 8th Amendment.
But if the drug doses could be improved to reduce the risk, why not require it? Roberts says that would set a standard that would foment litigation whenever one could point to "a slightly
or marginally safer alternative... embroil[ing] the courts in ongoing scientific controversies beyond their expertise," and intruding on state legislatures, which, in fact, have a good record of adopting humane execution methods.
Justice Thomas, joined by Scalia, rejects Roberts's standard. He vividly describes 18th century executions conducted in a manner intended "to terrorize the criminal, and thereby more effectively deter the crime."
These “superadded” circumstances “were carefully handed out to apply terror where it was thought to be most needed,” and were designed “to ensure that death would be slow and painful, and thus all the more frightening to contemplate.”...So it is enough, in Thomas's view, to avoid intentionally enhancing the pain of execution.
Although the Eighth Amendment was not the subject of extensive discussion during the debates on the Bill of Rights, there is good reason to believe that the Framers viewed such enhancements to the death penalty as falling within the prohibition of the Cruel and Unusual Punishments Clause. By the late 18th century, the more violent modes of execution had “dwindled away,” and would for that reason have been “unusual” in the sense that they were no longer “regularly or customarily employed,”...Embellishments upon the death penalty designed to inflict pain for pain’s sake also would have fallen comfortably within the ordinary meaning of the word “cruel.” See 1 S. Johnson, A Dictionary of the English Language 459 (1773) (defining “cruel” to mean “[p]leased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting”); 1 N. Webster, An American Dictionary of the English Language 52 (1828) (defining “cruel” as “[d]isposed to give pain to others, in body or mind; willing or pleased to tor-
ment, vex or afflict; inhuman; destitute of pity, compassion or kindness”).
It is not a little ironic—and telling—that lethal injection, hailed just a few years ago as the humane alternative in light of which every other method of execution was deemed an unconstitutional relic of the past, is the subject of today’s challenge. It appears the Constitution is “evolving” even faster than I suspected.Thomas thinks it's "obvious" that death penalty opponents will do what they can to obstruct the death penalty, which makes it important to establish a "bright-line rule" that will spare the states the pain of further litigation. But the Court has denied the states this mercy:
[T]oday’s decision is sure to engender more litigation. At what point does a risk become “substantial”? Which alternative procedures are “feasible” and “readily implemented”? When is a reduction in risk “significant”? What penological justifications are “legitimate”? Such are the questions the lower courts will have to grapple with in the wake of today’s decision.Justice Breyer too concurs:
I cannot find, either in the record or in the readily available literature that I have seen, sufficient grounds to believe that Kentucky’s method of lethal injection creates a significant risk of unnecessary suffering.Justice Stevens concurs. Noting that the case today does not foreclose further litigation of the issue, he gives the states some advice: consider ending the use of the paralyzing drug (pancuronium bromide). The Court won't find its use unconstitutional, but the states might be well-advised to end it on their own.
Stevens also writes at length to take the position that the death penalty itself — because of its "negligible returns to the State" — is "patently excessive and cruel and unusual" in violation of the 8th Amendment. This, as Justice Scalia puts it in his separate opinion, "repudiate[s Justice Stevens's] prior view and ... adopt[s] the astounding position that a criminal sanction expressly mentioned in the Constitution violates the Constitution." Because the 5th amendment text refers to "a capital, or otherwise infamous crime" (requiring a grand jury) and to the requirement of due process for the the deprivation of "life," Scalia writes, the Constitution must be read to approve of the death penalty.
The 2 dissenting justices are Ginsburg and Souter. Ginsburg writes the opinion. They would "remand 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."