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.

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