On Wednesday, by a 7-2 vote, the Supreme Court ruled that “Kentucky’s lethal injection protocol satisfies the Eight Amendment.” In other words, according to the Court, the three-drug mixture used to execute criminals who have been sentenced to death in Kentucky does not “create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death.”
The decision in the case, Baze v. Rees, actually involved two plaintiffs, Ralph Baze and Thomas Bowling, both of whom were given death sentences in Kentucky. Baze shot and killed the Powell County, Kentucky’s Sheriff and one of his deputies in 1992 when they attempted to arrest him. Bowling, who reportedly is borderline retarded, was convicted of the 1990 murder of Tina and Eddie Earley, shooting them in their car after ramming it, and shooting their two-year old son who survived. Of course, Baze claims self-defense and Bowling’s advocates claim he is innocent, but the merits of the convictions were not at issue in the Supreme Court’s case. The Court instead was looking only at the constitutionality of Kentucky’s method of carrying out death sentences.
The Court’s decision was interesting in that the primary opinion, written by Chief Justice Roberts, was only joined by two other Justices, Anthony Kennedy and Samuel Alito. That opinion said that “Because some risk of pain is inherent in even the most humane execution method, if only from the prospect of error in following the required procedure, the Constitution does not demand the avoidance of all risk of pain.”
The petitioners argued that even though the procedure would be “humane and constitutional if performed properly,” the chances were high that it would not be done properly, and therefore the process was unconstitutional. In particular, the question is whether incorrect insertion of an IV into the prisoner would cause too low a dose of sodium thiopental, a drug which leaves the prisoner unconscious. If there were too low a dose, the prisoner might suffer a “constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and of pain from potassium chloride.”
Roberts’ decision disagreed on several fronts, noting that “IV team members must have at least one year of relevant professional experience, and the presence of the warden and deputy warden in the execution chamber allows them to watch for IV problems. If an insufficient dose is initially administered through the primary IV site, an additional dose can be given through the secondary site before the last two drugs are injected.”
The petitioners also argued that Kentucky should be forced to a one-drug barbiturate protocol, much like that used by veterinarians to put animals to sleep. While the poetic justice of that approach may have appeal, the Court ruled that the State already has a “legitimate interest in providing for a quick, certain death, and in any event, veterinary practice for animals is not an appropriate guide for humane practices for humans.”
Justices Thomas and Scalia joined in an opinion concurring with the outcome of the case, namely that Kentucky’s death penalty procedure is constitutional, but criticized Roberts’ decision, arguing that it “formulation of the governing standard finds no support in the
original understanding of the Cruel and Unusual Punishments Clause or in this Court’s 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.”
In plainer language than one normally finds in a Supreme Court decision, Thomas and Scalia said “this is an easy case” because Kentucky’s procedure is obviously not “deliberately designed to inflict pain.” Indeed, they argue that Kentucky specifically chose its procedure in order to “make capital punishment more humane.”
Two of the Court’s liberals, Justices Ginsburg and Souter dissented with the majority, arguing that “Kentucky’s protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs.” They argue that even though the risk of a mistake in the process is low, the consequences are “horrendous and effectively undetectable after injection of the second drug” and conclude that this justifies forcing a state to choose an alternative method if there is one available. Ginsburg and Souter wanted more testing done to prove that the prisoners were indeed unconscious before the second and third drugs are administered.
However, even another of the Court’s more liberal members, Justice Breyer, disagrees, saying “The record provides too little reason to believe that such measures, if adopted in Kentucky, would make a significant difference.” Breyer therefore agreed with the outcome of the opinions ruling Kentucky’s procedure constitutional, writing that while the death penalty has serious risks, such as executing the wrong person, he could not find “either in the record or in the readily available literature, sufficient grounds to believe that Kentucky’s lethal injection method creates a significant risk of unnecessary suffering.”
Justice Stevens, the longest-serving member of the court, offered an opinion agreeing with the outcome of the case, but with stronger reservations than the other members of the seven-Justice majority.
Justice Stevens claims that in addition to continuing controversy around the procedure in question, the case will “generate debate…about the justification for the death penalty itself.” He added a comment that the death penalty “constitutes the pointless and needless extinction of life with only negligible social or public returns” but concluded that his view “does not justify a refusal to respect this Court’s precedents upholding the death penalty and establishing a framework for evaluating the constitutionality of particular execution methods, under which petitioners’ evidence fails to prove that Kentucky’s protocol violates the Eighth Amendment.”
Stevens’ view about the death penalty itself seems out of touch with American citizens based on consistent poll results. Gallup has conducted regular polls since 1999, with less frequent polls going back as far as 1936. The highest support for the death penalty in those polls was 80% in 1994. The lowest was 42% in 1966. In only 4 years, and not since 1971 has the number been below 50%, and 1966 was the only year in which the “against” position polled higher than “for” the death penalty. Interestingly, after falling to 64% from 2003-2005, support for the death penalty has increased to 69% in the most recent poll, taken just six months ago. This result is within a consistent 64%-71% range for the past decade.
|Graph taken from Gallup.com|
Furthermore, there is a consistent pattern in the past 7 years (during which the specific question was asked) of about twice as many respondents believing the death penalty is not imposed often enough as believing it is imposed too often. In fact, about twice as many respondents said it was not imposed often enough as said it was imposed “about the right amount.”
In a Gallup Poll series about the morality of the death penalty, consistently more than twice as many respondents believe the death penalty is “morally acceptable” as compared to “morally wrong.”
From giving Geneva Convention rights to terrorists, to arguing that the Court should look to Europe for precedent in its decisions, to letting governments steal private property in order to transfer it to other private owners, several recent Supreme Court decisions have made the issue of filling Court vacancies a larger issue for the general election than it might have been. Had the Justices stuck to doing their jobs based on a realization that the Constitution is an American, not European, document, and that it actually means what it says, they might not be the political lightning rod they have become.
The decision in Baze v. Rees is a refreshing return toward respecting the Constitution and the existing law of the land from the black-robed group who has too often in recent years attempted to impose their own liberal “morality” on the nation. If — as is expected — both Stevens and Ginsburg retire in the next president’s term, liberal replacements for them would likely prevent the Roberts Court from doing more to restore the rule of law, and of common sense.