Baze v. Rees and the Issue of Lethal Injection

[*Baze is a death row inmate in KY, and he brings this challenge along with another death row inmate--Bowling; Rees is the Commissioner of the KY Department of Corrections; the Warden and others are thrown in as other defendants; the lower court case is at 217 SW3d 207 (KY, 2006)].

This is case about the method of execution which is used in 37 of the 38 states which have the death penalty in America--lethal injection. Though NJ is one of those 37 states, it doesn't have a prescribed set of three chemicals as do the other 36, and so it really isn't implicated in the case. Indeed, the NJ Legislature may have thrown out the death penalty by Jan. 7, 2008, the date of oral argument.

The Issue

Let's be clear on what the issue is, and then let's put this issue in the broader context of the death penalty in America today. Two KY inmates brought a challenge to the state's three drug-protocol for lethal injection. Though KY allows condemned inmates not only to choose their last meal but also the way they want to be executed (lethal injection or electrocution), lethal injection is the "default option." What Baze/Bowling are doing in this case is not challenging the constitutionality of lethal injection; they are asserting that the three drug combination (which everyone calls a "cocktail," but I usually want to drink one of them, and so I bristle at the notion of calling these drugs a "cocktail") constitutes "cruel and unusual punishment" in violation of the 8th Amendment to the US Constitution. Since 35 other states also use this three drug protocol, KY's problem is almost everyone else's problem.

So, here is what they want the Supreme Court to do. They want the Court, first of all, to tell us all what is the acceptable level of pain that can be inflicted on people undergoing execution. Then, they want the Court to tell us whether lethal injection as practiced today in KY and 35 other states violates that level of pain that the Court just decided was the constitutionally maximum level.

The Current Debate

We really can't understand the passion behind the issue unless we realize that the death penalty in American history has gone through certain cycles. The US is, in general, a pro-death penalty country (38 states now provide for the death penalty), though there have been three distinct periods of abolition sentiment in the country (1840s-1850s; 1900-1915; 1958-1972). In each one of those periods, about fifty to sixty years apart, more and more states have decided to abolish capital punishment. Usually the challenge to capital punishment relates to 'barbaric methods' that are used to kill people. Thus, we have gone through hanging, firing squad, gas chamber and electrocution as permitted methods of execution before lethal injection was brought in through the State of OK in the late 1970s. Now, every state permitting executions, except NE, is on the lethal injection bandwagon.

Thus, those who look at the death penalty historically have good grounds for seeing this lethal injection case as a harbinger of additional efforts by abolition movements in many states that currently have the death penalty. Indeed, the NJ legislature may get rid of the death penalty next month in that state.

Back to the Case and the Law

If you stop to think about this case for more than a few minutes, however, you begin to see how ghoulish it is. The Justices are going to have to think about what is the acceptable level of pain a state may inflict on someone to killi them before it violates the US Constitution. How would you think about the question? Of course, a variety of word combinations come quickly to mind--lawyers are great for putting combinations of words together. A few are: "substantial risk of wanton or unnecessary infliction of pain," "unnecessary pain," "substantial pain," "unnecessary risk," or "unnecessary risk of pain and suffering." You can shuffle these cards and deal from the bottom or the top, but the issue won't go away. What is too much pain? Ah, is any pain felt by an inmate too much? Is a 1% risk that you might suffer terrible pain (such as if the second of the three drugs goes awry, paralyzes you but doesn't permit you to cry out that you are dying in pain) enought to tip the scales if 99% of the executions go off without a hitch? Or, let's say that the current three drug mixture, sodium pentathol, pancruonium bromide and potassium chloride, produces excruciating pain in 1/2% of the cases and no problem in others but a different collection of drugs produces even less pain? Since technology and drugs have evolved rapidly in the last few years, should the Court declare that the most up-to-date painless drugs should be used? Or, will any old method of killing the guys be ok, as long as you don't have obvious signs of physical distress? But, then again, if this is your standard, we never would have gone to lethal injection in the first place.

So, we went to lethal injection in the 1980s-2000s because it was a more "humane" way to kill people. Should that philosophy be the philosophy now? We will only kill people if we can kill them without making them feel it?

Conclusion

After this case is concluded, there will, no doubt, still be lethal injection as a form of execution. But it is anyone's guess whether the Court will require states to make a more "humane" system or to "use modern drugs" or just let things go along as is. But, while the Court is deciding, abolition efforts are underway in more states than New Jersey. I think abolition of the death penalty is a hot topic again in America for the first time in 30 years...

3098