Supreme Court Issues Fractious Opinion Upholding Kentucky's Lethal Injection Process

On April 16, the U.S. Supreme Court ruled that Kentucky's three-drug protocol for carrying out lethal injections does not amount to cruel and unusual punishment under the Eighth Amendment. The case, Baze v. Rees, had resulted in executions being put on hold around the country from the day after the Court agreed to review the issue. Thirty-five of the 36 states with the death penalty and the federal government use lethal injection as their primary method of execution. Seven Justices wrote opinions in the case, indicating that the Court is far from a consensus about how to resolve additional challenges that are likely to arise.

Kentucky had conducted only one execution by lethal injection, and so the Court had only a limited record before it on which to judge the risks of severe pain from this process. In other states, including California, Missouri, and Tennessee, federal courts, with a different record before them, had found lethal injection procedures to be unconstitutional. According to Chief Justice John Roberts', litigants in other states will have to show there is a risk of severe pain that could be avoided by readily implementable and feasible alternatives that would significantly reduce the risk. Two Justices concurred with Roberts' opinion, though six Justices concurred in the judgment upholding Kentucky's law.

Justice John Paul Stevens concurred in the Court's judgment, but wrote separately, questioning the constitutionality of the death penalty in general:


I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” (quoting J. White, Furman v. Georgia).

Justice Stevens also indicated that the current case does not resolve the entire issue of lethal injections:

I assumed that our decision would bring the debate about lethal injection as a method of execution to a close. It now seems clear that it will not. The question whether a similar three-drug protocol may be used in other States remains open, and may well be answered differently in a future case on the basis of a more complete record. Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself.

(L. Greenhouse, "Justices Uphold Lethal Injection in Kentucky Case, " N.Y. Times, April 17, 2008). Read the opinion. See Lethal Injection and Supreme Court.