Baze v. Rees

Baze v. Rees, 553 U.S. 35 (2008), is a decision by the United States Supreme Court, which upheld the constitutionality of a particular method of lethal injection used for capital punishment.

Background of the case

Ralph Baze and Thomas Bowling were sentenced to death in Kentucky, and argued that executing them by lethal injection would violate the Eighth Amendment prohibition of cruel and unusual punishment. The governing legal standard required that lethal injection must not inflict "unnecessary pain", and Baze and Bowling argued that the lethal chemicals Kentucky used carried an unnecessary risk of inflicting pain during the execution.

The case had nationwide implications because the specific "cocktail" used for lethal injections in Kentucky was the same one that virtually all states used for lethal injection. When the Supreme Court granted certiorari, there was an effective moratorium on executions in the United States.^[1]

Supreme Court's decision

The Supreme Court upheld Kentucky's method of lethal injection as constitutional by a vote of 7–2. No single opinion carried a majority. John Paul Stevens wrote a concurrence in the judgment that attacked the thesis of the death penalty while Ruth Bader Ginsburg and David Souter dissented.^[2]

Plurality opinion

The plurality opinion, written by Chief Justice John Roberts and joined by Justices Anthony Kennedy and Samuel Alito, held that Kentucky's execution method was humane and constitutional. In response to the petitioners' argument that the risk of mistakes in the execution protocol was so great as to render it unconstitutional, the plurality wrote that "an isolated mishap alone does not violate the Eighth Amendment". It also stated that the first drug in a multi-drug cocktail must render the inmate unconscious. Otherwise, there is a "substantial, constitutionally unacceptable risk" that the inmate will suffer a painful suffocation.^[3]

Stevens' concurrence

Justice John Paul Stevens concurred in the opinion of the Court, writing separately to explain his concerns with the death penalty in general.^[4][5] He wrote that the case questioned the "justification for the death penalty itself". He characterized the motivation behind the death penalty as an antithesis to modern values:

We are left, then, with retribution as the primary rationale for imposing the death penalty. And indeed, it is the retribution rationale that animates much of the remaining enthusiasm for the death penalty. As Lord Justice Denning argued in 1950, " 'some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.' " See Gregg, 428 U. S., at 184, n. 30. Our Eighth Amendment jurisprudence has narrowed the class of offenders eligible for the death penalty to include only those who have committed outrageous crimes defined by specific aggravating factors. It is the cruel treatment of victims that provides the most persuasive arguments for prosecutors seeking the death penalty. A natural response to such heinous crimes is a thirst for vengeance.

He further stressed concern over the process of death penalty cases where emotion plays a major role and where the safeguards for defendants may have been lowered. He cited statistics that indicated that many people sentenced to die were later found to be wrongly convicted. He concluded by stating that a penalty "with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment".

None of the other eight members of the Court choose to join Justice Stevens's opinion. Justice Breyer, one of the liberal justices, stated on the contrary in his concurring opinion that "the lawfulness of the death penalty is not before us".

Scalia's concurrence

Joined by Justice Thomas, Justice Scalia wrote separately "to provide what I think is needed response to Justice Stevens' separate opinion":

This conclusion is insupportable as an interpretation of the Constitution, which generally leaves it to democratically elected legislatures rather than courts to decide what makes significant contribution to social or public purposes. Besides that more general proposition, the very text of the document recognizes that the death penalty is a permissible legislative choice. The Fifth Amendment expressly requires a presentment or indictment of a grand jury to hold a person to answer for "a capital, or otherwise infamous crime," and prohibits deprivation of "life" without due process of law. [...]

In the fact 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". The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. 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". It is Justice Stevens' experience that reigns over all. [...]

Justice Stevens' final refuge in his cost-benefit analysis is a familiar one: There is a risk that an innocent person might be convicted and sentenced to death—though not a risk that Justice Stevens can quantify, because he lacks a single example of a person executed for a crime he did not commit in the current American system.

But of all Justice Stevens' criticisms of the death penalty, the hardest to take is his bemoaning of "the enormous costs that death penalty litigation imposes on society," including the "burden on the courts and the lack of finality for victim's families." Those costs, those burdens, and that lack of finality are in large measure the creation of Justice Stevens and other Justices opposed to the death penalty, who have "encumber[ed] [it] … with unwarranted restrictions neither contained in the text of the Constitution nor reflected in two centuries of practice under it"—the product of their policy views "not shared by the vast majority of the American people."

See also

• Participation of medical professionals in American executions
• Wilkerson v. Utah
• Glossip v. Gross; a case being heard in 2015 that examines whether the drug midazolam acts effectively enough to be used in lethal injections, since it may have played a role in three previous and botched executions. The Court ruled in Baze v. Rees that the Kentucky three-drug cocktail formula was not unconstitutionally cruel and unusual. This case will examine whether, because of European Union-country restrictions of drug shipments meant to be used in lethal execution to the U.S., midazolam is a sufficient substitute (which thus far has allowed states some flexibility in choosing which drugs to use) as the first of three drugs- the second being a paralytic and the third causing cardiac arrest.^[6]

Bibliography

• Linda Greenhouse. "Justices to Enter the Debate Over Lethal Injection". New York Times, September 26, 2007.
• "Supreme Court clears way for executions to resume" Reuters, April 16, 2008.

References

External links

• Written Opinion
• Baze v. Rees on ScotusWiki
• Audio: complete recording of oral arguments before the court from Oyez.org