WASHINGTON (ABP) — The Supreme Court effectively enabled states to move forward with executions April 16, declaring constitutional a kind of lethal injection used in almost all of the nation’s 30-plus death chambers.
In its Baze v. Rees (No. 07-5439) decision, the court said a three-drug procedure that Kentucky uses to execute prisoners does not pose enough of a risk of unintentional pain or suffering to declare it a violation of the Constitution’s ban on “cruel and unusual punishments.”
In the widely splintered decision, the nine justices produced seven different opinions between them. While the court voted 7-2 to uphold Kentucky’s procedure, a plurality of only three justices fully supported the court’s official opinion.
“Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual” punishment, wrote Chief Justice John Roberts in the plurality opinion. It was joined in full only by Justice Samuel Alito and Justice Anthony Kennedy.
Justices Ruth Bader Ginsburg and David Souter voted in the minority, saying they could not be certain that Kentucky had taken all necessary steps to prevent the unnecessary infliction of pain and suffering. “[I]f readily available measures can materially increase the likelihood that the protocol will cause no pain, a state fails to adhere to contemporary standards of decency if it declines to employ those measures,” Ginsburg wrote in a dissenting opinion joined by Souter.
Kentucky’s procedure — a form of which is used by virtually every state that enforces the death penalty — first involves a general anesthetic. Then a second drug paralyzes the prisoner to prevent convulsions. The final drug induces a heart attack. Two inmates from the state’s death row sued, contending the method poses a risk that the condemned will suffer, consciously and silently, after being injected with a drug that paralyzes them.
The plaintiffs were Ralph Baze, who was convicted of murdering two police officers who tried to serve warrants on him, and Thomas Bowling, who shot a young couple to death and injured their 2-year-old son in a traffic dispute.
Kentucky law bans the three-drug procedure for euthanizing animals, favoring a single dose of barbiturates that anesthetizes and induces death simultaneously. A group of veterinarians joined the inmates’ side in the case, arguing that what is considered inhumane for animals should not be used on humans.
But Roberts, Alito and Kennedy noted that there was no evidence in the Kentucky case that such an alternative would be better. And, the plurality said, a condemned inmate must show that any alternative is “feasible, readily implemented and in fact significantly reduces a substantial risk of severe pain.”
Justice John Paul Stevens , who voted to support the court’s judgment but not its reasoning, wrote a separate opinion declaring that, while respect for court precedent required him to uphold the Kentucky law, his three decades on the court had led him to conclude that capital punishment is itself unconstitutional.
“[C]urrent decisions by state legislatures, by the Congress of the United States, and by this court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty,” wrote Stevens , the court’s longest-serving member.
He continued, “The time for a dispassionate, impartial comparison of the enormous costs that death-penalty litigation imposes on society with the benefits that it produces has surely arrived.”
Stevens co-authored the 1976 Supreme Court decision that allowed states to reinstitute capital punishment.
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Supreme Court decision in Baze v. Rees
In death-penalty arguments, justices focus on lethal-injection procedure (1/7)