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January 7, 2008

Early reflections on the Baze oral argument

Though we don't agree on all issues, Orin Kerr and I seem to be sharing a lot of the same instincts about the Baze case. Specifically, I think Orin's analysis here of the Baze oral argument is spot-on, and I fully agree with these two statements in his strong post:

(1) On the whole I thought it went very well for the Respondents, the Commonwealth of Kentucky.  The Justices were clearly frustrated with the lack of record supporting the Petitioners' side: they seemed to think that the issue of alternatives to the three-drug protocol hadn't really been raised below, and they thought the claims about the different risks associated with different protocols were speculative.

(2) Roy Englert was excellent as counsel for Kentucky.  He came off as the reasonable man, avoided any grand claims, conceded arguments he didn't need, and stuck to the record.  It seemed to work: even Justice Stevens seemed persuaded that the record in this case showed that Kentucky was actually pretty careful and that there wasn't much of a risk of error.

Similarly, Lyle Denniston writing here at SCOTUSblog had this fitting assessment: "Justice John Paul Stevens, the Court's most liberal member, suggested explicitly at one point that the state of Kentucky probably should win in this case, if the issue was solely how well it administers the protocol in order to assure that death occurs without great pain and with dignity.  But, he said, that would leave open the issue of whether the protocol itself — the combination of three drugs — could pass constitutional muster."

UPDATE:  The full oral argument transcript is now available at this link, and the AP now has this lengthy report on the argument.

January 7, 2008 at 02:35 PM | Permalink


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I was disappointed with the arguments overall. No mention of the phrase "linear dose to response curve" with respect to barbiturates (which is constantly spelled wrong in the transcript) nor a mention of the fact that there are barbiturates much stronger than pentothal (secobarbital, for example), and no mention of the most obvious solution to this whole mess: using opioid overdosage (inject a gram of fentanyl and you'll have a very quick, painless death from respiratory depression). They're arguing between 3 and 5 grams of the barbiturate. It's clear the record was horribly underdeveloped, and I'm really not sure what the ultimate goal is of the petitioner if it's not to tie up the courts with perpetual litigation over various drug cocktails (which they claim is not their goal).

Scalia had a great comment about how training in lethal injection is analogous to learning the proper drop distance/weight for hangings. The wrong length of rope in relation to the weight of the condemned can cause decapitation or suffocation, rather than a quick neck-break (instant death).

Just my thoughts after reading the transcript.

Posted by: bruce | Jan 7, 2008 5:33:30 PM

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