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August 3, 2011

Shouldn't we be surprised Baze settled so little about lethal injection protocols?

The question in the title of this post is prompted by some new headlines and stories out of Florida and Tennessee reports on-going lethal injection litigation: from Florida here we have "Judge hearing challenge to Fla. execution drug"; from Tennessee here we have "Tennessee Executions on Hold."  Moreover, as regular readers know, both the federal government and Ohio are in the midst of a de facto execution moratoria as they seek to shore up their lethal injection protocol and practices (background here and here).  And California, the state with the largest death row, seems no closer to resuming executions today than it did five years ago.

I am not at all surprised that attorneys for murderers on death row continue to press vigorously any and all plausible constitutional challenges to lethal injection protocols a full three years after the Supreme Court seemingly important Baze ruling which approved Kentucky's execution protocol.  But I am quite surprised that these constitutional challenges continue to be having so much traction in lower courts and continue to hinder the ability of so many states to resume executions.  

In short, though I knew the Baze ruling wouldn't resolve or shut down most lethal injection litigation, I expected that this litigation would be a much smaller part of the national death penalty story over time. And yet, the opposite almost seems to be the case (though this may be more a product of recent practical challenges in getting key lethal injection drugs rather than litigation realities).  

Do readers share my surprise on this front?  Was I just wrong to suspect the 2008 Supreme Court ruling in Baze could and would be a significant turning point in this uniquely modern death penalty story?  Are there some important broader lessons — concerning the administration of the death penalty in the United States or concerning the limits of SCOTUS jurisprudence — to be drawn from these realities?

August 3, 2011 at 09:37 AM | Permalink


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The point of the lethal injection suits is not to change the drug cocktail. The cocktail could consist of orange juice and it wouldn't make any difference. The point of the suits is to run the clock, which is, of course, the point of virtually all death penalty litigation.

Since abolitionists have utterly failed to win over the public on their main argument -- that the DP is wrong -- they have gone to Plan B. That is to increase the cost and delay of executions to the point that they might be able to convince the public that -- guess what -- they cost too much and take too long!

The polls indicate the public isn't buying it, and for good reason: If a broadly supported public policy costs too much, the answer is -- as the public sees -- to reduce its costs, not to abolish it.

Most people see the DP as justice for some particularly horrible murders, and as long as this continues to be the case, the focus will and should be on reducing costs, not on denying the public a punishment with a well established historical and legal pedigree.

Posted by: Bill Otis | Aug 3, 2011 9:56:06 AM

I do not disagree with your real politik analysis, Bill, but it is these very realities (and your basic sentiments) that I believe drove SCOTUS to take up Baze and decide, 7-2, to bless the Kentucky protocol. The point of my post was to inquire whether others are surprised that Baze has now proven, three years later, to be so ineffectually as a matter of doctrine in getting on with the administration of the death penalty.

Posted by: Doug B. | Aug 3, 2011 10:57:29 AM


I am not surprised at all at the delays that certain states have encountered with LI litigation. The defense attorneys are excellent at presenting the courts with anything and everything possible to promote DELAY. Are Kentucky, Tennessee,Missouri and Arkansas ever going to resolve their issues and proceed. Judge Fox in Arkansas has been dragging that case out in circuit court for 2 years now.

Obviously, California and Ohio have some finetuning to attend to. But, recently most of the litigation has been limited by the change to pentobarbital. If the sodium piotental was available, numerous executions would go ahead without delay. It is the same argument for PB as it was for SP. Because it is the death penalty, courts will hear these issues over and over.

We will see what the Florida Supreme Court will do now that they have a evidentiary hearing on the record with the Valle case. The circuit judge denied it today.

Posted by: DaveP | Aug 3, 2011 12:56:24 PM

Doug --

When you live inside the Beltway, as I do, realpolitik is the whole deal. Still, like you, I wonder how many could actually be surprised that
Baze did not lay the issue to rest. Where the DP is concerned, there's no such thing as laying an issue to rest, no matter what the issue turns out to be.

I don't admire my adversaries' arguments, but I sure admire their persistence.

Posted by: Bill Otis | Aug 3, 2011 3:10:04 PM

It's the judiciary that has a black eye here.

Posted by: federalist | Aug 3, 2011 3:52:05 PM

"Where the DP is concerned, there is no such thing as laying an issue to rest, no matter what the issue turns out to be." Well put, Bill.

One thing Baze did accomplish. It reaffirmed the holding that inmates must show a substantial risk of pain and suffering. The judiciary just loves hearing these same arguments repeatedly.

Baze sure didn't help the state of Kentucky. Over 3 years later and no executions in sight. The rest of the states benefited because it was the first case to have a bench trial.

Posted by: DaveP | Aug 3, 2011 4:40:51 PM


1. States are consistently shooting themselves in the foot here. They mire their execution protocols in secrecy, make exceptions to normal administrative-regulation-making rules, etc. Courts are inclined to give a lot of deference to the States here, especially after Baze, but where some courts have still bridled is with this lack of transparency. The refusal to give basic information on protocols, and/or the willingness to change them on a whim without following any of the safeguards that exist for more mundane government regulations, gives defendants a legitimate procedural argument about notice, etc. (I.e., I don't know if I have a legitimate Baze claim, and I can't know that unless this Court makes the State tell me what it is planning to do to me.)

2. Also, as you suggest, a *lot* of this is not about legal doctrine or even about defense activism. It is about medical/pharmaceutical cracking down on off-label use of their products. So, in some sense I think you have answered your own question: Baze did make the substantive legal standard very difficult, but "practical challenges" have intervened in a way that was not necessarily expected in 2008.

Posted by: Anon | Aug 3, 2011 6:24:06 PM

Landrigan is where it's at now--5 votes makes some law.

Posted by: anon | Aug 3, 2011 10:34:30 PM

Conservatives and liberals on the Court are unified by one thing. The necessity to create and to preserve lawyer jobs. That is Job One of the SCOTUS, trumps all personal beliefs, and is non-negotiable. So vague decisions will do what? Generate more appeals and more lawyer appellate jobs, now costing in the $billions a year. Ending the death penalty would have ended these jobs. Simplifying and accelerating the process would have done the same. Baze is exquisitely tuned to generate lawyer appellate jobs.

I suggest that disclosure of lawyer rent seeking be an ethics requirement, or these decisions are in bad faith with their economic conflict of interest for the CCE and its hierarchy. To be sure, economists agree that a synonym for rent seeking is "armed robbery." If you do not pay your taxes, people with guns come to the house and help you pay them against your will.

Posted by: Supremacy Claus | Aug 3, 2011 11:04:27 PM

I stopped being surprised in 2009. Now, I see that not only will lawyers and inmates delay forever but courts will always indulge them. It's not the consideration of these claims that offends me, it's that courts refuse to act decisively and with finality. Most would rather review the same questions over and over. In 2008 I believed that Missouri, California, the federal government, Delaware and others would soon resolve their lethal injection challenges and execute their backlog of inmates. Look at how wrong I was.

Posted by: MikeinCT | Aug 3, 2011 11:38:03 PM


Delaware 1, Missouri 2, Tennessee 2: since Baze
some other states: CA, KY, NC, Arkansas-nothing

Good Post

Posted by: DaveP | Aug 4, 2011 1:22:37 PM

Delaware: 3 years after Baze
Missouri: 1 years after Baze, Moratorium put on again. Then 1 execution took place almost 3 years after Baze. New lethal injection suit has many other inmates executions stayed.
Tennessee: Moratorium on, then off, then on again. No executions in almost 2 years.

Posted by: MikeinCT | Aug 4, 2011 6:48:45 PM

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