Baze v. Rees--the 4/16/08 Decision

In a 7-2 decision, where no one's argument garnered more than three votes, the Court upheld KY's practice of lethal injection (practiced also in 34 other states) as a constitutionally permitted method to execute prisoners. The Court decided that the standard to judge whether a punishment violated the "cruel and unusual" standard of the 8th Amendment was not whether an inmate suffered unnecessary pain, but whether he experienced a "substantial" and "objectively intolerable risk of serious harm." A State's refusal to adopt alternative procedures may violate the 8th Amendment only where the alternative procedure is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.

So, that is the Supreme Court's mantra now with respect to the "level of pain" that can be inflicted on someone who is being executed. A constitutionally impermissible level of pain is a "substantial risk of severe pain." Thus, even if a "cleaner and cheaper and more painless" alternative procedure were offered to a state, the state wouldn't be constitutionally required to accept it. The "theory," therefore, behind this case is that the threshold for pain must be fairly high before the 8th Amendment is implicated. Alternative visions and possibilties don't even need to be considered if there isn't substantial risk of pain in the "old" procedure. By stating that this is the standard for change, then, the Court is by its nature articulating a conservative view--keep things as they are unless it is so bad as to inflict severe pain. Of course, this doesn't forbid states from developing "more humane" ways of execution; it just stresses that the US Supreme Court will not be leading the charge or even encouraging the development of these "humane ways." It will not be an "activist" Court on the issue of the pain level in the death penalty.

The Opinion

Chief Justice Roberts wrote the opinion for the Court, joined only in it by Justices Kennedy and Alito. He first articulated the "substantial" or "objectively intolerable" risk of serious harm standard for an execution method. His point was threefold. First, the Court has upheld capital punishment as constitutional (1976). Second, the Court has also held that the 8th Amendment forbids "punishments of torture,...and all others in the same line of unnecessary cruelty," such as "disemboweling, beheading, quartering, dissecting, and burining alive." I bet that gives us all a lot of comfort.... Then, third, he argued that subjecting individuals to a substantial risk of future harm can be cruel and unusual punishment if the conditions presenting the risk are 'sure or very likely to cause serious illness and needless suffering" and to give rise to "sufficiently imminent dangers."

Thus, the burden was on the challengers of lethal injection not only to show that it was very likely to cause needless suffering but also that the suffering was significant. This, according to Justice Roberts, the petitioner didn't do. Certainly there has been or would some excruciating suffering if the first three of the drugs administered (sodium thiopental) didn't really "take" and the victim was therefore helpless, but aware, as the other two drugs were administered to him. Indeed, when this has happened, it represents, for the Chief Justice, a "regrettable" (that is big of him...) error, but it doesn't suggest that there is a systemic cruelty or a substantial risk of serious harm. Thus, KY's scheme, as well as that of the remainder of the states, doesn't violate the 8th Amendment ban on cruel or unusual punishment.

Concurrences

There were four concurring opinions, not all of which need to be mentioned. Justice Stevens, whom you might have thought would have dissented, actually argued that the Court's decision may retard the use of the death penalty in America because there may be more and more examples of procedure gone awry, with the subsequent demand to make sure that the execution method used doesn't cause an unconstitutional level of pain. Justices Scalia and Thomas concurred in the judgment but rejected the Chief Justice's attempt to set a standard because it didn't flow from the original meaning of the Constitution. According to these two historical sleuths, the level of pain that could legitimately be inflicted is "deliberately designed to inflict pain." Whoops--I guess if these two Justices ruled the day we would have to get into the mental state of executioners, or legislatures, in evaluating execution methods. Suppose, then, that a state wanted to implement an extremely painful method of execution. As long as someone in the chain argued that deliberate pain wasn't the goal of the method--but rather a "regrettable" byproduct--we could have any kind of executions in America that any state wanted.

Is There an Evolving Standard with Respect to the DP?

Rather than review any more of the Justices' opinions, I will close with a question, "Is there an evolving standard of decency, so to speak, with respect to the death penalty?" If our understanding is "frozen," so to speak, in 1787 we all must become history Ph.D.s to understand what was "really meant" in that day. But if, in fact, "things change" over time, we have to learn to adapt to changes. Things change everywhere else in life. Fifty years ago a three-story building could be built without an elevator. Now, no three-story buiding (except for a private house) is built without one. Fifty years ago, most cars didn't have air conditioners. Now, they are standard features in almost all cars. Conveniences and technology have brought vast improvements in the last fifty years; we adopt them. Isn't there at least an argument that we as a society mature in our understanding of infliction of pain on people? Fifty years ago the teachers in public schools could spank students. No more.

Thus, I think that the Scalia/Thomas approach on this issue is not a helpful one. Whether or not the Court ought to place a very low hurdle for states to jump in order for their capital punishment regimes to be constitutional (as here) is debatable. I would prefer a Court that wasn't so timid on the issue because it basically says to litigants and the States--don't expect much creative thinking from us here. So, lethal injections will no doubt continue, though Justice Stevens' fear--that they may be held up further as other errors in administration are discovered, may indeed play out in the coming years.

3473