Excerpts from the Supreme Court Opinion in Baze v. Rees

April 16, 2008

Opinion of the Chief Justice announcing the judgment of the Court

“Some risk of pain is inher­ent in any method of exe­cu­tion — no mat­ter how humane — if only from the prospect of error in fol­low­ing the required pro­ce­dure. It is clear, then, that the Constitution does not demand the avoid­ance of all risk of pain in car­ry­ing out executions.”

Concurring Opinion of Justice Alito

“The issue pre­sent­ed in this case — the con­sti­tu­tion­al­i­ty of a method of exe­cu­tion — should be kept sep­a­rate from the con­tro­ver­sial issue of the death penal­ty itself. If the Court wish­es to reex­am­ine the lat­ter issue, it should do so direct­ly, as JUSTICE STEVENS now suggests.”

Concurring Opinion of Justice Stevens

“The risk of exe­cut­ing inno­cent defen­dants can be entire­ly elim­i­nat­ed by treat­ing any penal­ty more severe than life impris­on­ment with­out the pos­si­bil­i­ty of parole as constitutionally excessive.”

Concurring Opinion of Justice Scalia

“I take no posi­tion on the desir­abil­i­ty of the death penal­ty, except to say that its val­ue is emi­nent­ly debat­able and the sub­ject of deeply, indeed pas­sion­ate­ly, held views — which means, to me, that it is pre­em­i­nent­ly not a mat­ter to be resolved here. And espe­cial­ly not when it is explic­it­ly per­mit­ted by the Constitution.”

Concurring Opinion of Justice Thomas

“[A] method of exe­cu­tion vio­lates the Eighth Amendment only if it is delib­er­ate­ly designed to inflict pain.…”

Concurring Opinion of Justice Breyer

“The death penal­ty itself, of course, brings with it seri­ous risks, for exam­ple, risks of exe­cut­ing the wrong per­son, risks that unwar­rant­ed ani­mus (in respect, e.g., to the race of vic­tims), may play a role, risks that those con­vict­ed will find them­selves on death row for many years, per­haps decades, to come. These risks in part explain why that penal­ty is so con­tro­ver­sial. But the law­ful­ness of the death penal­ty is not before us.”

Dissenting Opinion of Justice Ginsburg

“Kentucky’s pro­to­col lacks basic safe­guards used by oth­er States to con­firm that an inmate is uncon­scious before injec­tion of the sec­ond and third drugs. I would vacate and remand with instruc­tions to con­sid­er whether Kentucky’s omis­sion of those safe­guards pos­es an unto­ward, read­i­ly avoid­able risk of inflict­ing severe and unnecessary pain.”

Read the entire opin­ion.