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April 21, 2008

Looking at the Justices' methods in Baze

At FindLaw, Michael Dorf has this new essay, titled "How the Supreme Court's Lethal Injection Ruling Elevates Appearances Over Reality." Here is how it starts:

Last week, in Baze v. Rees, the U.S. Supreme Court rejected a constitutional challenge to Kentucky's administration of the death penalty via lethal injection.  To say that the case divided the Justices would be a gross understatement.  There was no opinion for the Court as a whole, and the nine Justices wrote a total of seven separate opinions.

In the short term, the Baze decision will result in the resumption of executions, which had been subject to a de facto moratorium since the Court agreed to hear the case.  In the long term, the decision's likely impact is unclear.

The controlling opinion of Chief Justice Roberts finds insufficient evidence in the record to support a conclusion that Kentucky's administration of its three-drug lethal injection poses a "substantial risk of serious harm," and thus to warrant the Court's ruling that it constitutes cruel and unusual punishment in violation of the Eighth Amendment.  However, the Chief Justice's opinion leaves open the possibility that such evidence might be found in a different case from a different state. For the next few years, therefore, we are likely to see challenges to the application of lethal injection in various states, and eventually the issue may return to the Supreme Court.

Whatever the ruling's ultimate practical impact may be, however, the Baze decision is important for the mode of reasoning the Court employs.  The controlling opinion by Chief Justice Roberts — joined by Justices Kennedy and Alito — appears to endorse the proposition that the state can expose people to an increased risk of an excruciating death on what amount to merely aesthetic grounds.

April 21, 2008 at 08:00 AM | Permalink

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