Today was death penalty day at the Court, with the Justices handing down their decision in Baze v. Rees and hearing argument in Kennedy v. Louisiana (which I'll discuss in a later post). In Baze, as you'll recall, the Court was confronted with the question of whether the standard three-drug lethal injection protocol -- the first drug given is an anesthetic, the second and third paralyze breathing and stop the heart, respectively -- imposes cruel and unusual punishment because alternative lethal-injection methods are available that would significantly reduce the risk of severe pain On one hand, the result announced today is clear enough: seven justices voted to uphold the protocol. Unfortunately, the reasoning used by the members of the Court was extraordinarily fractured. Allow me to (very) briefly summarize what each of the opinions argued:
- Chief Justice Roberts, joined by Justices Kennedy and Alito, argued that a state's refusal to adopt an alternative method of execution that is less likely to inflict severe pain can violate the Cruel and Unusual Punishments Clause, but only if the alternative procedure is "feasible, readily implemented, and in fact significantly
reduce[s] a substantial risk of severe pain," and the state refuses to adopt the alternate method "without a legitimate penological
justification for adhering to its current method of execution." Roberts, Kennedy, and Alito concluded that Kentucky's three-drug protocol does not cause a substantial risk of severe pain.
- Justice Thomas, joined by Justice Scalia, concurring only in the judgment, rejected the majority's standard, arguing that under the original meaning of the Cruel and Unusual Punishments Clause only intentional infliction of severe pain during execution is barred.
- Justice Ginsburg, joined by Justice Breyer, dissenting, argued that a method is cruel if it creates "untoward, readily avoidable risk of inflicting severe and unnecessary pain" without regard to whether the risk is substantial, and would have remanded for Kentucky courts to address that question.
- Justice Stevens wrote that the Court should again directly take up the question of whether capital punishment is constitutional, and offered his opinion that it is not. However, he accepted that it is constitutional under current law and, without adopting any of the standards discussed above, summarily concluded that Kentucky's method had not been proven cruel (thus concurring in the result).
- Justice Breyer expressed his agreement with the standards formulated in the Ginsburg-Souter opinion, but also said that "the legal merits of the kind of claim presented must inevitably turn not
so much upon the wording of an intermediate standard of
review as upon facts and evidence." Applying his "we don't need no freaking standards" view, Justice Breyer concluded that Kentucky's lethal-injection scheme had not been proven cruel and concurred in the judgment.
- Justice Scalia wrote a separate opinion to slam Justice Stevens's view that the death penalty is unconstitutional.
- Justice Alito wrote a separate opinion to defend the Roberts-Kennedy-Alito opinion both from attacks mounted in the Stevens opinion and (at the other end of the spectrum) criticisms in the Thomas-Scalia opinion.
The import of all this? Lower court judges across the nation will be cursing Baze until the Court comes out with a more unified discussion of the appropriate standards, which may be quite a while indeed.
On the upside for our purposes, though, Justice Scalia's separate opinion does contain a classic Scaliaesqe passage eviscerating Justice Stevens' view that capital punishment is unconstitutional:
As JUSTICE STEVENS explains, “ ‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth
Amendment.’ ” Ante, at 14 (quoting Atkins v. Virginia, 536
U. S. 304, 312 (2002); emphasis added; some internal
quotation marks omitted). “I have relied on my own experience in reaching the conclusion that the imposition of
the death penalty” is unconstitutional. Ante, at 17 (emphasis
Purer expression cannot be found of the principle of rule
by judicial fiat. In the face of JUSTICE STEVENS’ experience, the experience of all others is, it appears, of little
consequence. The experience of the state legislatures and
the Congress—who retain the death penalty as a form of
punishment—is dismissed as “the product of habit and
inattention rather than an acceptable deliberative process.”
Ante, at 8. The experience of social scientists whose
studies indicate that the death penalty deters crime is
relegated to a footnote. Ante, at 10, n. 13. The experience
of fellow citizens who support the death penalty is described,
with only the most thinly veiled condemnation, as
stemming from a “thirst for vengeance.” Ante, at 11. It is
JUSTICE STEVENS’ experience that reigns over all.
Update/Corrections: Edited post for clarity and to excise grammatical errors.