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September 26, 2007

Early prediction on the lethal outcome in Baze

Thanks to SCOTUSblog, I see that Andrew Cohen already has posted his this prediction for the outcome in Baze v. Rees, the lethal injection case from Kentucky taken up by SCOTUS yesterday.  Here it is:

I make predictions about Supreme Court decisions about as often as the Justices agree unanimously on contentious issues, which is say, almost never.  But I am prepared to go out on the legal limb in the lethal injection case out of Kentucky which the High Court yesterday agreed to consider and decide during the looming term.

By a 5-4 vote, I predict, with Justice Anthony Kennedy writing the majority opinion, the Court next spring will declare invalid the lethal injection procedures Kentucky and certain other states employ when they execute capital defendants. The decision will then force all “lethal injection” states to do what some already are doing, which is to revamp their execution protocols to ensure that the condemned are given the proper amount of the proper medications in the proper order so they don’t endure “cruel and unusual punishment” before they die.

The Court’s most conservative quartet — Chief Justice John Roberts and Associate Justices Scalia, Thomas and Alito — will offer a stinging dissent that focuses upon the rights of states to determine for themselves their own execution protocols.  And if Justice Scalia gets to write that dissent I’m fairly confident that we’ll see a line or two about what he considers the “absurdity” of spending so much time and effort ensuring that a death row inmate about to be killed in the name of the people is treated like a patient in the finest hospital in the world.

I think this is a sensible prediction, though I also think that we might possibly be in for some surprises in Baze, in part because I suspect that a few Justices may be eager to avoid a 5-4 ruling in this setting.

September 26, 2007 at 11:38 AM | Permalink


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One thing that may have some influence is the fact that some of the Justices seemed to have swallowed whole the Lancet study while they were grilling the Asst. AG arguing the case for Florida in Hill. Unfortunately for these Justices, the Lancet study turned out to be bogus, with even one of the study's authors conceding that more work needed to be done. Some of the Justices may not be willing to be burned again.

Let's face it, the "it can be done better, therefore it's unconstitutional" argument argues for a new standard. And at least one member of the Court, Justice Stevens has advocated for lethal injection in an opinion.

That said, who knows what Justice Kennedy will do? But it would be the height of unfairness for the Supreme Court to yank the rug out from under victims' families like this. A ruling for Baze would impose, as a practical matter, a moratorium in many states, given the time it would take to redo the procedures and to deal with the litigation arising thereunder.

Everyone agrees that if lethal injection under the three drug protocol is done properly, there is no pain. The possibility of mistake has never invalidated a procedure before--it's not the time to start making new law and to impose longer waits on people who have waited long enough.

Posted by: federalist | Sep 26, 2007 12:27:42 PM

1. There will always be a difference of opinion on how best to carry out executions. The guillotine was said to be more humane than the other methods of the day. The "long drop" was touted as more humane than the traditional hanging methods. The electric chair was said to be more humane than the noose. Others thought the firing squad was best. Then the gas chamber was touted as more humane. Then it was lethal injection.

2. Any method of execution can be cruel, if done incorrectly (whether by incompetence or by design).

3. The Eighth Amendment does not mandate that state officials utilize the "most" humane method of execution, assuming we could ever agree on what it is. Rather, it prohibits only methods perceived as excessively cruel by the standards of the day (or by the standards of 1787-89, per Scalia and Thomas).

4. Mere negligence by prison officials, or poor judgment, does not violate the Eighth Amendment. At a minimum, the inmate must show deliberate indifference -- or sometimes more, such as "malicious and sadistic" conduct.

5. With a handful of exceptions (when Kennedy or O'Connor got squeamish about executing children or the retarded), the Court has been on a mission to remove all obstructions to implementing the death penalty.

From the above, I deduce the following. In Baze, the majority will instruct the lower courts to get out of the way, and stop second-guessing state legislatures. The Court will not mandate that states use any particular method of execution, or particular drug protocol, but will leave that decision to the discretion of each state. Unless the proposed method of execution is inordinately cruel on its face, or the risk of erroneous application so great as to amount to deliberate indifference, the federal courts must defer to state officials. The days of federal judges holding extensive hearings, while experts debate the virtues and pitfalls of particular executions methods, will soon be over.

Posted by: Anonymous | Sep 26, 2007 1:22:33 PM

Great analysis, anonymous, but I wonder whether 5 Justices think that way. 4 of them have rarely seen a death sentence that passes constitutional muster, and the other one is as unprincipled as they come. I predict a repeat of Roper v. Simmons.

Posted by: | Sep 27, 2007 6:12:50 AM

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