Fractured Supreme Court Decision Affirming Kentucky's Three-Drug Lethal Injection Protocol Assures Further Litigation

On Wednesday, April 16, 2008, by a vote of 7-2, the Supreme Court upheld Kentucky’s three-drug execution procedure — one drug each to sedate, paralyze, and end life, the same method of putting criminals to death by lethal injection used by nearly all of the States with the death penalty and the federal government. Baze v. Rees, No. 07-5439. There was, however, no majority opinion. The seven-member majority decision was supported by six separate opinions. The plurality opinion garnered just three votes. A seventh opinion announced the dissent. The full text of the decision can be found here.. A news summary and analysis of the decision can be found at (New York Times, April 16, 2008, "Litigation Assured in Wake of Decision") and (New York Times, April 17, 2008, "Supreme Court Allows Lethal Injection for Execution"). Among the many noteworthy nuggets to be found in quickly panning this judicial mine are: (1) Chief Justice Roberts’ rejection of the petitioners’ argument that a better, barbiturate-only alternative method for lethal injection is widely used on animals by veterinarians on humanitarian grounds but is barred in many states for use in executing people, in which he states that "veterinary practice for animals is not an appropriate guide for humane practices for humans"; and (2) the statement by Justice Stevens that "I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself." Justice Stevens was a member of the Court’s 7-2 majority that voted to reinstate the death penalty in Gregg v. Georgia, 428 U.S. 153 (1976). Notably, two other members of that Court’s majority, Justices Blackmun and Powell, came to regret their decisions supporting the Constitutionality of the death penalty. Had all three members of the Court come to oppose the Constitutionality of the death penalty back in 1976, as Justices Brennan and Marshall concluded at the time, the result in Gregg v. Georgia would have been a 5-4 decision declaring the death penalty to be a cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Chief Justice Roberts’ plurality opinion says there is no substantial risk of serious harm in Kentucky's protocols, and that the core of the cruel and unusual punishments clause is the prevention of intentional infliction of pain as punishment. The opinion cites Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947), where Willie Francis had to be electrocuted twice because it did not work the first time. In that case, since Louisiana was not trying to cause Francis unnecessary pain, the Court found that a second attempt to execute was not cruel and unusual. Near the end of the plurality opinion in Baze, Chief Justice Roberts also notes that execution methodologies have moved successively to "more humane methods of execution," from firing squad to hanging, the electric chair, the gas chamber, and now lethal injection. Chief Justice Roberts, however, never mentions any of the numerous cases in which lethal injections have gone bad. We should list them, look at the gruesome pictures, listen to the tormenting sounds, imagine the feel and smell of loose and tangled intravenous lines and bruised and bleeding incisions, all kept safely at a distance by prison walls and glass barriers, and carefully note the disingenuousness of Chief Justice Roberts’ plurality opinion in wholly ignoring these instances of botched and torturous executions. By contrast, the Willie Francis case stood then as one of only two or three cases in forty years in which the initial electrocution did not work. In Alabama in 1984, Alabama had to make three attempts to electrocute John Evans. In the years since, there have been many, many more instances of botched lethal injections. As for the States being motivated by humaneness in switching from method to method, while it might be true that the switch to lethal injection was initially motivated by a more humane execution protocol, as the mistakes in administration began to climb, the States stubbornly refused to take actions to minimize those mistakes. Additionally, the States may have switched to lethal injection, and the use of pancuronium bromide, as a way of making the execution more humane for the observers, NOT more humane for the condemned. The plurality opinion defends the use of pancuronium as the States' legitimate interest in making the execution more dignified, but at what price? The real bottom line is that, once again, the Supreme Court Justices who approve this protocol have hidden their heads in the sand to the reality of how the death penalty in America works, just as they have with other serious flaws in the American capital punishment system. In another capital case argued on Wednesday, Kennedy v. Louisiana, No. 07-343, the Supreme Court heard arguments about whether Louisiana may, within the bounds of the cruel and unusual punishments clause of the Eighth Amendment, impose the death penalty for a non-homicidal rape of a minor. In 1977, the Supreme Court held that the death penalty for the rape of an adult woman was disproportionate. Now, five States have legislatively authorized the death penalty for the rape of a minor. Only Louisiana has imposed a death sentence for the rape of a minor. While some of the Justices, particularly Scalia and Thomas, expressed support for the constitutionality of Louisiana’s statute, other Justices were skeptical.