Document from CQ Press's Historic Documents series
On April 16, 2008, in Baze v. Rees, the U.S. Supreme Court ruled on the question of whether the three-drug lethal injection procedure used to impose capital punishment in the state of Kentucky violated the Constitution's Eighth Amendment prohibition against “cruel and unusual punishment.” The case was brought by two death row inmates: Ralph Baze, who was convicted of shooting a sheriff and deputy sheriff in Kentucky in 1992, and Thomas Bowling, who was convicted of murdering a couple and harming their son in Kentucky in 1990. The last time the court had examined a particular method of carrying out a death sentence was in 1879, when it upheld the use of a firing squad. The Court accepted the Baze case in September 2007 on the day that a Texas man had been put to death. The justices indicated that they would block subsequent executions, in effect imposing a de facto nationwide moratorium until the constitutional issues were resolved. Resolution came in the form of a plurality opinion written by Chief Justice John G. Roberts Jr., concluding that Kentucky's lethal injection procedure did not violate the Eighth Amendment.
The methods used in the United States to execute death row prisoners have changed over time. In the middle of the nineteenth century, hanging was used almost universally. New York was the first state to authorize electrocution as a form of capital punishment, following the recommendations of a commission established to find “the most humane and practical method known to modern science.” Electrocution was then the predominant method of execution for almost a hundred years. In 1977 Oklahoma developed a lethal injection protocol with the intention that its use would be more humane than executions by hanging, firing squad, electrocution, or the gas chamber. Currently, thirty-seven states have the death penalty on their books. Of those, thirty-six states and the federal government have adopted lethal injection as the exclusive or primary method of execution, and all of those states use essentially the same lethal combination of the three drugs first used in Oklahoma.
The three-drug protocol for lethal injection involves first injecting the condemned prisoner with sodium thiopental (also known as Pentathol), a powerful, fast-acting barbiturate sedative, which, if administered correctly, should put the individual into a deep sleep so that he or she feels nothing afterward. The first drug is followed by an injection of pancuronium bromide (also known as Pavulon), a paralytic that prevents the prisoner from convulsing, twitching, or indicating discomfort. The third drug is potassium chloride, which stops the prisoner's heart. If the first drug works properly, the process is quick and painless. Although physicians are present at the execution to assist in any last-minute effort to revive the prisoner, they are prohibited by the canons of medical ethics from any activity that could contribute to the “conduct of an execution.” For this reason, IVs are inserted by certified technicians who administer the drugs remotely through tubes from another room. Only the warden and deputy warden are in the chamber with the prisoner during the execution.
The central problem raised by Baze v. Rees is that the drug protocol may fail to work as intended. If the first drug is not administered correctly, or if it wears off quickly, the second drug will make the prisoner feel a sense of suffocation and the third drug will cause excruciating pain. However, the prisoner will appear to observers to be sleeping peacefully, instead of fully conscious and in agony during the final moments of life.
Those opposing the three-drug protocol have called it an invitation for botched executions and urge the adoption of a simpler, single-drug protocol using a strong, modern barbiturate. This is the method currently used by veterinarians to put animals to sleep. In fact, the drugs used for lethal injection were long ago abandoned by the American Veterinary Association as unnecessarily cruel. Twenty-three states have gone so far as to prohibit veterinarians from using neuromuscular paralytic agents such as pancuronium bromide. Justice John Paul Stevens wrote in his dissent that “it is unseemly—to say the least—that Kentucky may well kill petitioners using a drug that it would not permit to be used on their pets.”
It is also important to point out that Baze v. Rees was not about a challenge to the constitutionality of the death penalty, nor was it a challenge to the validity of the two petitioners’ sentences, each for double homicide. It was not even a challenge to the use of lethal injection as a method of execution. Instead, the judges were asking a procedural question: What should the standard be to determine if a particular combination of drugs used to bring about death causes sufficient suffering or risk of suffering to violate the Eighth Amendment's injunction against “cruel and unusual punishment”?
The lawyers for Baze argued that the Eighth Amendment should prohibit procedures that create an “unnecessary risk” of pain and suffering. This standard would, they argued, require courts to evaluate: “(a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible.” They emphasized that the risks inherent in the current method of lethal injection could easily be avoided by using a simpler formulation. Lawyers for Kentucky argued that this “unnecessary risk” standard would essentially require the states to adopt the “least risk” alternative, a standard that would always be changing, leaving no procedure free from constitutional doubt. They argued instead for a constitutional test that turned on the “substantial risk” of unnecessary and wanton infliction of pain.
The Court sided with Kentucky, ruling 7–2 to uphold the constitutionality of execution by the three-drug lethal injection method. The Court, however, was not unified on the issues. Of the nine justices, seven wrote separate opinions, and no more than three justices joined each opinion. Although seven justices reached the same result, the splintered reasoning may encourage more legal challenges in the future. Justice Stevens wrote in a concurring opinion, “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.” Justice Clarence Thomas agreed that because this decision left the states with “nothing resembling a bright-line rule,” it would engender more litigation.
Writing for the plurality, Chief Justice Roberts was joined by Justices Anthony M. Kennedy and Samuel A. Alito Jr. Roberts wrote that “simply because an execution 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.” An “isolated mishap alone” does not, Roberts wrote, give rise to an Eighth Amendment violation. Rather, such a violation would require a “substantial risk of serious harm.” The petitioners, he concluded, failed to show that the theoretical risk of a future prison official mistakenly administering an inadequate dose of the first drug was substantial. Roberts rejected Stevens's suggestion that this decision would lead to uncertainty, writing that a stay of execution would, under this standard, be granted only if the prisoner proves that “the State's lethal injection protocol creates a demonstrated risk of severe pain.” The prisoner “must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.”
Justice Thomas, joined by Justice Antonin Scalia, wrote an opinion concurring in the judgment only. He rejected Roberts's “substantial risk” standard, arguing instead that only execution methods deliberately designed to inflict pain as a way of enhancing the death sentence would violate the Eighth Amendment. Thomas analyzed the Amendment in light of the historical practices that led to its inclusion by the Framers. He concluded that it was meant to prohibit methods such as burning at the stake or disemboweling that “were designed to inflict torture” and “intended to produce a penalty worse than death, to accomplish something more than the ‘mere extinguishment of life.’” According to Thomas, under this standard, Baze presented an easy case. Kentucky had tried to design a lethal injection protocol that eliminated pain rather than inflicting it. It was irrelevant that another method may exist that does this better.
It was, however, Justice Stevens's opinion concurring in the judgment that generated most of the press attention in this case. Stevens took the opportunity to make a public reversal of his previous position by renouncing the use of the death penalty. In 1976, when he was a new justice, he had announced the opinion for the court in Jurek v. Texas, one of the three cases that reinstituted the death penalty after a Court-imposed nine-year hiatus in executions. That vote, he wrote “relied heavily on our belief that adequate procedures were in place” to treat death penalty cases with special care to minimize bias and error. “Ironically,” he observed, “more recent cases have endorsed procedures that provide less protections to capital defendants than to ordinary offenders.” Stevens's opinion triggered a stinging rebuttal from Scalia, who argued that legislatures, not courts, must decide whether capital punishment makes sense.
Predictions that the use of capital punishment would increase after the Court's ruling in Baze v. Rees ended a seven-month moratorium were not fulfilled. In fact, 37 prisoners were executed in 2008, the lowest number of executions in the United States since 1994. New capital sentences were also down, with courts sentencing 111 people to death in 2008—the lowest number of new death penalty convictions in three decades.
Many factors have been suggested to explain the decrease in capital sentences. Although surveys indicate that 69 percent of Americans say they support the death penalty in principle, this number is considerably lower than it has been in the past. Two reasons for the drop in support of the death penalty are that the alternative sentence of life without the possibility of parole has become more widespread and that 130 death row prisoners have been exonerated since 1976. Further, the economic downturn and tightened budgets in district attorneys’ offices have caused prosecutors to think twice before asking for the death penalty. Capital trials are costly, resulting in numerous appeals, and often taking decades to complete.
Following are excerpts from opinions by Chief Justice John Roberts and Justices John Paul Stevens and Clarence Thomas in the Baze v. Rees Supreme Court decision, delivered on April 16, 2008, in which the Court ruled that lethal injection is not considered cruel and unusual punishment.
Ralph Baze and Thomas C. Bowling, Petitioners v. John D. Rees, Commissioner, Kentucky Department of Corrections, et al., on writ of certiorari to the Supreme Court of Kentucky
[April 16, 2008]
CHIEF JUSTICE ROBERTS announced the judgment of the Court and delivered an opinion, in which JUSTICE KENNEDY and JUSTICE ALITO join….
[Section I, which has been omitted, included information on the various methods of lethal injection used by states and background on the case.]
The Eighth Amendment to the Constitution, applicable to the States through the Due Process Clause of the Fourteenth Amendment, provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” We begin with the principle, settled by Gregg, that capital punishment is constitutional. It necessarily follows that there must be a means of carrying it out. Some risk of pain is inherent in any method of execution—no matter how humane—if only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.
Petitioners do not claim that it does. Rather, they contend that the Eighth Amendment prohibits procedures that create an “unnecessary risk” of pain. Specifically, they argue that courts must evaluate “(a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible, either by modifying existing execution procedures or adopting alternative procedures.” Petitioners envision that the quantum of risk necessary to make out an Eighth Amendment claim will vary according to the severity of the pain and the availability of alternatives, but that the risk must be “significant” to trigger Eighth Amendment scrutiny. Kentucky responds that this “unnecessary risk” standard is tantamount to a requirement that States adopt the “least risk” alternative in carrying out an execution, a standard the Commonwealth contends will cast recurring constitutional doubt on any procedure adopted by the States. Instead, Kentucky urges the Court to approve the “substantial risk” test used by the courts below.
This Court has never invalidated a State's chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment. In Wilkerson v. Utah, 99 U.S. 130 (1879), we upheld a sentence to death by firing squad imposed by a territorial court, rejecting the argument that such a sentence constituted cruel and unusual punishment. We noted there the difficulty of “defin[ing] with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted.” Rather than undertake such an effort, the Wilkerson Court simply noted that “it is safe to affirm that punishments of torture, … and all others in the same line of unnecessary cruelty, are forbidden” by the Eighth Amendment. By way of example, the Court cited cases from England in which “terror, pain, or disgrace were sometimes superadded” to the sentence, such as where the condemned was “embowelled alive, beheaded, and quartered,” or instances of “public dissection in murder, and burning alive.” In contrast, we observed that the firing squad was routinely used as a method of execution for military officers. What each of the forbidden punishments had in common was the deliberate infliction of pain for the sake of pain—“superadd[ing]” pain to the death sentence through torture and the like.
We carried these principles further in In re Kemmler, 136 U.S. 436 (1890). There we rejected an opportunity to incorporate the Eighth Amendment against the States in a challenge to the first execution by electrocution, to be carried out by the State of New York. In passing over that question, however, we observed that “[p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.” We noted that the New York statute adopting electrocution as a method of execution “was passed in the effort to devise a more humane method of reaching the result.”
Petitioners do not claim that lethal injection or the proper administration of the particular protocol adopted by Kentucky by themselves constitute the cruel or wanton infliction of pain. Quite the contrary, they concede that “if performed properly,” an execution carried out under Kentucky's procedures would be “humane and constitutional.” That is because, as counsel for petitioners admitted at oral argument, proper administration of the first drug, sodium thiopental, eliminates any meaningful risk that a prisoner would experience pain from the subsequent injections of pancuronium and potassium chloride.
Instead, petitioners claim that there is a significant risk that the procedures will not be properly followed—in particular, that the sodium thiopental will not be properly administered to achieve its intended effect—resulting in severe pain when the other chemicals are administered. Our cases recognize that subjecting individuals to a risk of future harm—not simply actually inflicting pain—can qualify as cruel and unusual punishment. To establish that such exposure violates the Eighth Amendment, however, the conditions presenting the risk must be “sure or very likely to cause serious illness and needless suffering,” and give rise to “sufficiently imminent dangers.” We have explained that to prevail on such a claim there must be a “substantial risk of serious harm,” an “objectively intolerable risk of harm” that prevents prison officials from pleading that they were “subjectively blameless for purposes of the Eighth Amendment.”
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. In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), a plurality of the Court upheld a second attempt at executing a prisoner by electrocution after a mechanical malfunction had interfered with the first attempt. The principal opinion noted that “[a]ccidents happen for which no man is to blame,” and concluded that such “an accident, with no suggestion of malevolence,” did not give rise to an Eighth Amendment violation.
As Justice Frankfurter noted in a separate opinion based on the Due Process Clause, however, “a hypothetical situation” involving “a series of abortive attempts at electrocution” would present a different case. In terms of our present Eighth Amendment analysis, such a situation—unlike an “innocent misadventure”—would demonstrate an “objectively intolerable risk of harm” that officials may not ignore. In other words, an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a “substantial risk of serious harm.”
Much of petitioners’ case rests on the contention that they have identified a significant risk of harm that can be eliminated by adopting alternative procedures, such as a one-drug protocol that dispenses with the use of pancuronium and potassium chloride, and additional monitoring by trained personnel to ensure that the first dose of sodium thiopental has been adequately delivered. Given what our cases have said about the nature of the risk of harm that is actionable under the Eighth Amendment, a condemned prisoner cannot successfully challenge a State's method of execution merely by showing a slightly or marginally safer alternative.
Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining “best practices” for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology. Such an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution procedures—a role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death. Accordingly, we reject petitioners’ proposed “unnecessary risk” standard, as well as the dissent's “untoward” risk variation.
Instead, the proffered alternatives must effectively address a “substantial risk of serious harm.” To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State's refusal to change its method can be viewed as “cruel and unusual” under the Eighth Amendment.
In applying these standards to the facts of this case, we note at the outset that it is difficult to regard a practice as “objectively intolerable” when it is in fact widely tolerated. Thirty-six States that sanction capital punishment have adopted lethal injection as the preferred method of execution. The Federal Government uses lethal injection as well. This broad consensus goes not just to the method of execution, but also to the specific three-drug combination used by Kentucky. Thirty States, as well as the Federal Government, use a series of sodium thiopental, pancuronium bromide, and potassium chloride, in varying amounts. No State uses or has ever used the alternative one-drug protocol belatedly urged by petitioners. This consensus is probative but not conclusive with respect to that aspect of the alternatives proposed by petitioners.
In order to meet their “heavy burden” of showing that Kentucky's procedure is “cruelly inhumane,” petitioners point to numerous aspects of the protocol that they contend create opportunities for error. Their claim hinges on the improper administration of the first drug, sodium thiopental. It is uncontested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride. We agree with the state trial court and State Supreme Court, however, that petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. And we reject the argument that the Eighth Amendment requires Kentucky to adopt the untested alternative procedures petitioners have identified….
[Section A and a majority of Section B, which detailed the argument that the drugs used in a lethal injection can be improperly administered, have been omitted.]
JUSTICE STEVENS suggests that our opinion leaves the disposition of other cases uncertain, but the standard we set forth here resolves more challenges than he acknowledges. A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.
* * *
Reasonable people of good faith disagree on the morality and efficacy of capital punishment, and for many who oppose it, no method of execution would ever be acceptable. But as Justice Frankfurter stressed in Resweber, “[o]ne must be on guard against finding in personal disapproval a reflection of more or less prevailing condemnation.” This Court has ruled that capital punishment is not prohibited under our Constitution, and that the States may enact laws specifying that sanction. “[T]he power of a State to pass laws means little if the State cannot enforce them.” State efforts to implement capital punishment must certainly comply with the Eighth Amendment, but what that Amendment prohibits is wanton exposure to “objectively intolerable risk,” not simply the possibility of pain.
Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States. Petitioners agree that, if administered as intended, that procedure will result in a painless death. The risks of maladministration they have suggested—such as improper mixing of chemicals and improper setting of IVs by trained and experienced personnel—cannot remotely be characterized as “objectively intolerable.” Kentucky's decision to adhere to its protocol despite these asserted risks, while adopting safeguards to protect against them, cannot be viewed as probative of the wanton infliction of pain under the Eighth Amendment. Finally, the alternative that petitioners belatedly propose has problems of its own, and has never been tried by a single State.
Throughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge. Our society has nonetheless steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today's consensus on lethal injection. The broad framework of the Eighth Amendment has accommodated this progress toward more humane methods of execution, and our approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment. There is no reason to suppose that today's decision will be any different.
The judgment below concluding that Kentucky's procedure is consistent with the Eighth Amendment is, accordingly, affirmed.
It is so ordered.
JUSTICE STEVENS, concurring in the judgment.
When we granted certiorari in this case, 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….
In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, 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.”
The conclusion that I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult. It does not, however, justify a refusal to respect precedents that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution. Under those precedents, whether as interpreted by THE CHIEF JUSTICE or JUSTICE [RUTH BADER] GINSBURG, I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky's lethal injection protocol violates the Eighth Amendment. Accordingly, I join the Court's judgment.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring in the judgment.
Although I agree that petitioners have failed to establish that Kentucky's lethal injection protocol violates the Eighth Amendment, I write separately because I cannot subscribe to the plurality opinion's formulation of the governing standard. As I understand it, that opinion would hold that a method of execution violates the Eighth Amendment if it poses a substantial risk of severe pain that could be significantly reduced by adopting readily available alternative procedures. This standard—along with petitioners’ proposed “unnecessary risk” standard and the dissent's “untoward risk” standard—finds no support in the original understanding of the Cruel and Unusual Punishments Clause or in our previous method-of-execution cases; casts constitutional doubt on long-accepted methods of execution; and injects the Court into matters it has no institutional capacity to resolve. Because, in my view, a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain, I concur only in the judgment….
U.S. Supreme Court on use of lethal injection in death penalty cases. (2009). Historic documents of 2008. Washington, DC: CQ Press. Retrieved from http://library.cqpress.com/cqpac