Supreme Court Update Baze v. Rees, 552 U.S. ____ (2008) Decided April 16, 2008 | See opinion here On April 16, in a plurality decision, the Supreme Court, in Baze v. Rees, 552 U.S.____ (2008), affirmed the judgment of the Supreme Court of Kentucky that Kentucky's protocol for lethal injection does not violate the Eighth Amendment's prohibition on cruel and unusual punishment. The case had implications for the execution protocols authorized by 36 of the 37 states with capital punishment and the federal government, particularly the at least 30 states using the same combination of three drugs used by Kentucky. The constitutionality of the death penalty itself was not at issue. (The full text of the opinions is available at http://www.supremecourtus.gov/opinions/07pdf/07-5439.pdf.) Kentucky's lethal injection protocol involves three drugs. The first, sodium thiopental, renders the prisoner unconscious and insensitive to pain caused by the second and third drugs. The second drug, pancuronium bromide causes paralysis and suppresses respiration. The final drug, potassium chloride, induces cardiac arrest. Kentucky's protocol further specifies that the IVs be inserted into the prisoner by experienced personnel and that the warden and deputy warden monitor for any IV problems and for whether the prisoner has been rendered unconscious. Petitioners, convicted murderers on Kentucky's death row, asserted that the protocol violated the Eight Amendment because of the risk that it would be improperly administered, resulting in unnecessary infliction of pain. Chief Justice Roberts, joined by Justices Kennedy and Alito, began from the premise that, because the Court's precedent establishes that capital punishment is constitutional, there must be a means of carrying it out. Because some risk of pain is inherent in any execution method, the Eighth Amendment does not demand avoidance of all risk of pain. Execution methods like firing squad, electrocution, and lethal injection were introduced successively as efforts to make execution more humane. The mere fact that an execution method may result in pain does not establish an "objectively intolerable risk of harm." Responding to petitioners' contention that a significant risk of harm could be avoided by adopting an alternative protocol, the plurality would ask whether feasible alternatives "effectively address a 'substantial risk of serious harm,'" "serious harm" being defined as severe pain. In light of Kentucky's safeguards, the plurality could not conclude that the risks identified by petitioners were so substantial or imminent as to amount to a constitutional violation. Further, petitioners failed to establish that available alternatives rendered Kentucky's three-drug protocol objectively intolerable when no other state had adopted the proffered alternative and Kentucky's protocol including a paralytic serves legitimate penological interests like preserving the dignity of the procedure and hastening death. Justice Alito filed a concurring opinion to respond to Justice Thomas's critique of the plurality's "substantial risk" standard. Justice Alito noted that medical ethics prevent health care providers from participating in executions, limiting the availability of alternative protocols that would require their participation. To successfully challenge an execution method under the plurality's test, a prisoner would have to show a well-established scientific consensus that an available alternative would "significantly reduce a substantial risk of severe pain," a difficult task. Justice Stevens concurred in the judgment, predicting that the case will generate debate about the justification for the death penalty itself. Justice Stevens was especially concerned that the paralytic drug could mask consciousness and pain. Justice Stevens has now come to believe that the death penalty is so unjustifiable as to render it unconstitutional. But, under the Court's precedents, petitioners failed to prove that Kentucky's protocol violated the Eighth Amendment. Justice Scalia's concurrence, joined by Justice Thomas, responded to Justice Stevens's opinion. Justice Scalia noted that the Constitution generally leaves it to legislatures, not courts, to decide what best serves public purposes. Further, the text of the Constitution itself recognizes capital punishment as "a permissible legislative choice," referring to capital crimes and deprivation of life. Justice Scalia responded to Justice Stevens's conclusion that the death penalty is unjustified, citing empirical studies demonstrating its deterrent effect and laying the blame for the burden imposed by death penalty litigation at the feet of anti-death-penalty justices. Justice Thomas's concurrence, joined by Justice Scalia, rejected the plurality's governing standard. In Justice Thomas's view, an execution method is unconstitutional only if "deliberately designed to inflict pain." Justice Thomas catalogued deliberately painful punishments known to the Framers of the Eight Amendment, including "[b]reaking on the wheel, flaying alive," and "rendering asunder with horses." Because Kentucky's protocol was designed to avoid pain rather than inflict it, this case was an easy one under Justice Thomas's standard. Justice Breyer concurred in the judgment, agreeing with Justice Ginsburg's approach to the governing standard but finding that petitioners had not shown that Kentucky's protocol posed a "significant and unnecessary risk of inflicting severe pain." Justice Breyer examined the record and the available literature, finding both inconclusive. Justice Ginsburg dissented, joined by Justice Souter. In her view, because it was undisputed that the second and third drugs in the protocol would cause excruciating pain to a conscious prisoner, the constitutionality of Kentucky's protocol turned on whether prisoners are adequately anaesthetized by the first drug. And because Kentucky omitted some safeguards employed by other states, Justice Ginsburg would remand for consideration whether those omissions posed "an untoward, readily avoidable risk of inflicting severe and unnecessary pain."