Death Penalty

Today, the Supreme Court, in the case of Baze v. Rees, ruled 7-2 that lethal injection is constitutional, in Kentucky and elsewhere, as long as there is no "substantial risk of severe pain", and as long as there is no alternative procedure which is "feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain." (The opinion is available here.)

What this means in practice, outside of Kentucky, is way less than clear.  It is a fractured 97-page ruling featuring 7 separate opinions which debate not only lethal injection but the death penalty itself.  Only two other justices joined Chief Justice Roberts in his plurality opinion.  Three other justices, who concurred with the result, argued in separate opinions that this decision will not end the debate. 

In his concurring opinion, Justice Stevens writes: "The question whether a similar three drug protocol may be used in other States remains open, and may well be answered differently in a future case on the basis of a more complete record."

And in their concurring opinion, Justices Thomas and Scalia worry that the plurality's opinion "casts constitutional doubt on long-accepted methods of execution."  They go on to warn that:

... today'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. Needless to say, we have left the States with nothing resembling a bright-line rule.

Justice Alito, in his concurrence defending the plurality, argues back that this won't happen if the decision is "properly understood."  He also addressed the issue of health professional participation in executions, arguing that:

... a suggested modification of a lethal injection protocol cannot be regarded as "feasible" or "readily" available if the modification would require participation - either in carrying out the execution or in training those who carry out the execution - by persons whose professional ethics rules or traditions impede their participation.

In other words, according to Justice Alito, a lethal injection protocol is constitutional unless there is a "substantial risk" of pain that can be readily reduced by an alternative that doesn't involve health professionals.

Then there is the second part of Justice Stevens' concurrence, where he argues against the constitutionality of the death penalty itself; another concurrence, by Scalia and Thomas, responds to Stevens' arguments about the death penalty without really talking about lethal injection at all.

Here is Amnesty International's statement that this "preoccupation with lethal injection" is a "distraction from myriad problems currently plaguing the death penalty system."

Brian

DPAC