In a 7–2 decision announced on April 16, the US Supreme Court rejected the petition of two Kentucky death row inmates who challenged the constitutionality of that state’s lethal injection procedures. The Supreme Court thus ended the de facto moratorium on capital punishment in place for much of the past year and cleared the way for states to resume executions.
As Dui Hua discussed in a past article (from Dialogue 29), the key issue in Baze v. Rees was not the constitutionality of capital punishment itself, but whether the specific three-drug lethal injection protocol used by Kentucky (and 35 other states and the federal government) put condemned inmates at risk of “unnecessary and wanton infliction of pain.” Critics claim that current protocols do not ensure a sufficient level of anesthesia before potentially painful lethal drugs are applied.
In the plurality opinion, Chief Justice John Roberts articulated a new standard for future challenges to lethal injection protocols, saying there must be a “demonstrated risk of severe pain” and that the risk must be substantial compared to another available alternative. Writing in dissent, Justice Ruth Bader Ginsburg set out a different standard of “untoward, readily avoidable risk,” and argued the court should have remanded the case to a lower court to consider whether Kentucky’s failure to employ adequate safeguards met this standard. But a majority on the court found that the lethal injection protocol appeared to be properly administered in this specific case.
One surprising opinion was that of Justice John Paul Stevens, author of the plurality opinion in Gregg v. Georgia, the 1976 ruling that established the constitutionality of the death penalty. While agreeing with the majority decision in this case, Stevens revealed he felt that the court could well revisit the issue of capital punishment’s constitutionality, and that his own opinions on the subject had changed over the past 30 years. While the likelihood of revisiting the law is unclear, the Baze ruling leaves open the possibility for future challenges to lethal injection in the United States