NO REQUIEM FOR THE DEATH PENALTY (OR, LETHAL INJECTION GETS ANOTHER SHOT)
Wednesday, May 21, 2008 5:33pm

---

            On April 16, 2008, the Supreme Court of the United States rendered a significant decision on the death penalty.  While Baze, Et Al v. Rees, Commissioner, Kentucky Department of Corrections, Et Al, 553 U.S. ___ (2008), 128 S.Ct. 1520 is a 7-2 decision which death penalty proponents deem to be a clear victory, the opinion provides a picture of the five justices who clearly favor the death penalty and, possibly, four who philosophically disfavor it.

            The issue in Baze was whether the particular lethal injection protocol followed by the State of Kentucky is unconstitutional under the Eight Amendment’s ban on “cruel and unusual punishment” because of the risk that the lethal injection protocol not be properly followed, resulting in significant pain.  In a thoroughly researched opinion, Chief Justice Roberts, joined by Justices Kennedy and Alito, held that Kentucky’s lethal injection protocol satisfies the Eight Amendment.  The procedure involves a three drug cocktail administered by trained professionals:  The first drug is a fast acting barbiturate sedative that induces a deep, coma-like unconsciousness when given in the amounts used for lethal injection; the second drug is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration; and the third drug interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest.  The petitioner’s application did not contend that lethal injection or the proper administration of the particular Kentucky protocol constituted cruel or wanton infliction of pain; rather, the petitioners took issue with the risk of improper administration of this three drug cocktail which could result in needless pain and suffering for the death penalty candidate.  After a brief review of the history of the death penalty in America which, through the years, has included death by hanging, firing squad, electrocution, lethal gas, and following an analysis of the Kentucky procedure, the Court concluded that Kentucky’s lethal injection protocol satisfies the Eighth Amendment to the U.S. Constitution.  The Chief Justice noted that a total of 36 states and the Federal Government have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the most prevalent method in the United States.  Of particular interest the Chief Justice wrote:

Throughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge.  Our society has nonetheless steadily moved to more humane methods of carrying out capital punishment.  The firing squad, hanging, the electric chair, and the gas chamber have each in turn given away to more humane methods, culminating in today’s consensus on legal injection.  The broad framework of the Eighth Amendment has accommodated this progress toward more humane methods of execution, and our approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment.  There is no reason to suppose that today’s decision will be any different.

 

The judgment below concluding that Kentucky’s procedure is consistent with the Eighth Amendment is, accordingly, affirmed.

 

However in a footnote in response to Justice Stevens the Chief Justice clarified his position as follows:

We do not agree with JUSTICE STEVENS that anything in our opinion undermines or remotely addresses the validity of capital punishment.  The fact that society has moved to progressively more humane methods of execution does not suggest that capital punishment itself no longer serves valid purposes; we would not have supposed that the case for capital punishment was stronger when it was imposed predominantly by hanging or electrocution.

 

            The concurring opinion of Justice Stevens provides an understanding of Stevens’ individual and philosophical opposition to the death penalty yet his overriding adherence to precedent by the following:

The conclusion that I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult.  It does not, however, justify a refusal to respect precedents that remain a part of the law.  This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution.  Under those precedents, whether as interpreted by THE CHIEF JUSTICE or JUSTICE GINSBURG, I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky’s lethal injection protocol violates the Eighth Amendment.  Accordingly, I join the Court’s judgment.

 

            The concurring opinions of Justice Scalia and Thomas present an extremely aggressive response to Justice Stevens position.  Like Justice Stevens, Justice Breyer concurs but suggests that if the issue was squarely before the Court, he would vote to abolish it.

But the lawfulness of the death penalty is not before us.  And petitioners’ proof and evidence, while giving rise to legitimate concern, do not show that Kentucky’s method of applying the death penalty amounts to “cruel and unusual punishmen(t).

 

For these reasons, I concur in the judgment.

Finally and most revealing, Justices Ginsburg and Souter would remand the case “with instructions to consider whether the failure to include readily available safeguards:

The Court did not address petitioners’ argument.  I would therefore remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentucky’s protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

 

            Thus, the opinion provides us insight into the personal and philosophical views of the justices of the Supreme Court on the issue of the death penalty in this country.  While some follow the rule of law despite personal philosophy, some do not.  This April 16, 2008 opinion makes it clear that, at least for a while, there will not be a requiem for the death penalty.  But one can reasonably infer that if the proper issue is framed and brought before the Court it would likely be a closer vote, either 6-3 or 5-4, on whether to retain the controversial death penalty.  Inasmuch as the U.S President appoints justices to the Supreme Court, in this election year given the viewpoints of this Court, some attention should perhaps be given to the presidential candidates’ views on this very important issue and their philosophy on judicial appointments to the Federal bench, particularly the Supreme Court of the United States.

            One final note to illustrate that the death penalty is alive and well – the State of Georgia wasted no time following the April 16, 2008 opinion in executing William Earl Lynd, on May 6, 2008[1].  Other states, including Louisiana, are expected to follow suit and will likely place a few death row inmates in the express lane.

---

| | | |