Baze v. Rees

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In Baze v. Rees, 128 S. Ct. 1520 (2008), the U.S. Supreme Court upheld the use of the lethal injection cocktail prescribed by virtually all capital punishment states in administering the death penalty. Chief Justice John Roberts, joined by Justices Anthony Kennedy and Sam Alito, wrote the plurality opinion. Most other Justices wrote or joined concurring opinions, and Justice Alito also wrote a concurrence in addition to joining the Chief Justice. Justices Ruth Bader Ginsburg and David Souter dissented.

Chief Justice Roberts wrote:

Like 35 other States and the Federal Government, Kentucky has chosen to impose capital punishment for certain crimes. As is true with respect to each of these States and the Federal Government, Kentucky has altered its method of execution over time to more humane means of carrying out the sentence. That progress has led to the use of lethal injection by every jurisdiction that imposes the death penalty.
Petitioners in this case -- each convicted of double homicide -- acknowledge that the lethal injection procedure, if applied as intended, will result in a humane death. They nevertheless contend that the lethal injection protocol is unconstitutional under the Eighth Amendment's ban on "cruel and unusual punishments," because of the risk that the protocol's terms might not be properly followed, resulting in significant pain. They propose an alternative protocol, one that they concede has not been adopted by any State and has never been tried.
The trial court held extensive hearings and entered detailed Findings of Fact and Conclusions of Law. It recognized that "[t]here are no methods of legal execution that are satisfactory to those who oppose the death penalty on moral, religious, or societal grounds," but concluded that Kentucky's procedure "complies with the constitutional requirements against cruel and unusual punishment." App. 769. The State Supreme Court affirmed. We too agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment. The judgment below is affirmed.

Justice Clarence Thomas, joined by Justice Antonin Scalia, wrote a notable concurrence that began with the following:

Although I agree that petitioners have failed to establish that Kentucky's lethal injection protocol violates the Eighth Amendment, I write separately because I cannot subscribe to the plurality opinion's formulation of the governing standard. As I understand it, that opinion would hold that a method of execution violates the Eighth Amendment if it poses a substantial risk of severe pain that could be significantly reduced by adopting readily available alternative procedures. Ante, at 13. This standard -- along with petitioners' proposed "unnecessary risk" standard and the dissent's "untoward risk" standard, post, at 2 -- finds no support in the original understanding of the Cruel and Unusual Punishments Clause or in our previous method-of-execution cases; casts constitutional doubt on long-accepted methods of execution; and injects the Court into matters it has no institutional capacity to resolve. Because, in my view, a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain, I concur only in the judgment.