Lethal Injection on Trial: An Analysis of the Arguments Before the Supreme Court in Baze v. Rees

On Jan. 7, 2008, the U.S. Supreme Court will hear arguments in Baze v. Rees, a case that challenges the constitutionality of lethal injection as it currently is administered by the federal government and 36 states. In the case, the court will attempt to determine the standard that lower courts should employ when evaluating whether a specific method of lethal injection amounts to “cruel and unusual” punishment, which is prohibited by the Eighth Amendment to the U.S. Constitution. Although the court will not consider the constitutionality of the death penalty itself, it could rule on whether the method of lethal injection used in almost all executions in the United States violates the Eighth Amendment and thus is unconstitutional.

The impact of the Baze case already has been felt in courthouses and penitentiaries around the country. The court’s decision in late September to hear the case has prompted all states with scheduled executions to put them on hold until a ruling is handed down sometime in the spring or early summer. In addition, the case has the potential to be one of the most significant death penalty rulings in modern history. While the Supreme Court routinely hears capital punishment cases, the Baze case represents the first time in more than a century that the court will consider whether a specific execution method violates the Eighth Amendment. The last time such a case was heard was in 1879, when the high court ruled in Wilkerson v. Utah that firing squads did not constitute cruel and unusual punishment.

The Baze case has its immediate roots in two recent Supreme Court decisions – Nelson v. Campbell (2004) and Hill v. McDonough (2006) – in which the court ruled that death row inmates could not only challenge their convictions and sentences, but also the method of their executions as violations of the Eighth Amendment. As a result, scores of inmates on death row subsequently filed suits challenging the constitutionality of the most commonly used method of lethal injection. One of the lawsuits was filed in 2004 in a state court in Kentucky by Ralph Baze and Thomas C. Bowling, two inmates who had been convicted of separate, unrelated double murders and had been sentenced to death in the 1990s.

In their suit, Baze and Bowling assert that the existing lethal injection protocol violates the Eighth Amendment because it is likely to cause substantial pain and suffering. The current lethal injection procedure involves a combination of three drugs: one to anesthetize the inmate, followed by one that induces complete paralysis and, finally, one that causes cardiac arrest. The Baze suit and other challenges to lethal injection are built around a concern that inmates could regain consciousness but remain paralyzed during the last stage of the execution. Lethal injection critics say that inmates in this condition would almost certainly feel pain while receiving the drug to induce cardiac arrest but, due to paralysis, would be unable to alert prison officials to any discomfort. Critics also say that there are less painful alternatives to the existing three-drug protocol. They further maintain that the U.S. Constitution requires states like Kentucky to adopt these more humane methods of lethal injection. (For more on the lethal injection procedure, see An Impassioned Debate: An Overview of the Death Penalty in America.)

The suit by the two inmates worked its way through the state court system until, on April 19, 2007, the Kentucky Supreme Court issued a decision rejecting Baze and Bowling’s constitutional challenge. The court ruled that the state’s lethal injection protocol did not present a substantial risk of pain during execution and thus did not violate the Eighth Amendment. In response, Baze and Bowling appealed the decision to the U.S. Supreme Court, which, on Sept. 25, agreed to hear the case in early 2008.

Determining the Right Standard

Lethal injection was intended to provide states with a more humane way to execute condemned criminals. But criticism of the procedure has increased over the past decade as detractors have asserted that the most commonly used method – the three-drug combination – has resulted in a growing number of excruciatingly painful deaths. These critics allege that executions in states from Florida to California have been badly botched and that as a consequence inmates have suffered for lengthy periods before finally expiring. Since 2006, nine states – including Illinois, New York, Florida and California – have acknowledged problems and, for at least a time, suspended all executions while officials reviewed the situations.

At the same time, courts have grappled with how best to judge whether lethal injection does indeed amount to cruel and unusual punishment in violation of the Eighth Amendment. Some courts have employed a standard that hinges on whether the procedure leads to a “substantial risk” of pain. Others have evaluated lethal injection based on whether it leads to an “unnecessary risk” of pain, “wanton infliction of pain,” “excessive pain,” “unnecessary pain” or “substantial pain.” These various standards have produced different results in different courts, leading many legal experts to assume that the main reason the high court agreed to take the Baze case was to set down a uniform standard that lower state and federal courts could use in the future.

In the current case, Baze and Bowling argue that the Kentucky Supreme Court employed the wrong standard when it determined that the state’s lethal injection protocol does not pose a “substantial risk of wanton or unnecessary infliction of pain” and thus does not violate the Eighth Amendment. The two inmates contend that evaluating lethal injection using the “substantial risk” standard does not allow courts to fully consider all the relevant factors at play. For instance, they state that the substantial risk test does not take into consideration the degree of pain an inmate might feel during an execution. They question whether any degree of pain, even if it is not severe pain, is acceptable under the Eighth Amendment. Moreover, they argue, the substantial risk test also does not require judges to consider the availability of less painful alternatives to the current three-drug protocol. Under the test employed by Kentucky’s high court, these alternatives need not be considered as long as there is not a substantial risk of pain.

Instead of using the substantial risk test, the inmates urge the court to adopt a standard that contemplates whether the use of lethal injection constitutes an unnecessary risk of pain. They note that in its 1976 ruling reinstating capital punishment (Gregg v. Georgia), the Supreme Court stated that the Eighth Amendment prohibits the “unnecessary and wanton infliction of pain.” In their view, prior cases make clear that the Eighth Amendment requires that states “avoid inflicting pain beyond what is necessary to cause death.”

Finally, Baze and Bowling contend that Kentucky’s current method of lethal injection does, in fact, subject condemned prisoners to an unnecessary risk of pain. Baze and Bowling also contend that it is well documented that the current three-drug protocol can leave inmates conscious and in terrible pain but, due to complete paralysis, unable to alert anyone to their suffering. In addition, they say, Kentucky could easily eliminate this unnecessary risk by using a much higher dose of the first, anesthetic drug and forgoing the use of the second and third drugs. A large enough dose of the first drug, comprised of barbiturates, will both anesthetize and then kill the inmate in a matter of minutes, they say.

The other party in this case, the state of Kentucky, has countered that the “unnecessary risk” test put forth by Baze and Bowling is both flawed and unrealistic. According to the state, the two death row inmates are asking the court “to forge a new interpretation of the Eighth Amendment under which any risk of pain or suffering is prohibited, no matter how small the risk, if it is considered ‘unnecessary’ in the sense that it can theoretically be reduced or eliminated by alternative drugs or procedures.” In essence, Kentucky argues, the unnecessary risk standard will oblige states to constantly ensure that even insignificant risks of pain or suffering are addressed before an execution can proceed.

In addition, Kentucky defends the state Supreme Court’s use of the substantial risk test, noting that in recent federal Supreme Court cases, including the Gregg case, the court itself has applied the very same test in its own analysis of the Eighth Amendment. Furthermore, the state argues, the substantial risk test provides a balanced approach in evaluating potential methods of punishment. On one hand, the state asserts, the test acknowledges the possibility of serious potential harm and seeks to protect the condemned from that harm. At the same time, the state argues, the test does not allow for highly “speculative claims of future injury” that would essentially allow any inmate to indefinitely delay a death sentence with one appeal after another.

Finally, Kentucky argues that its method of lethal injection is humane and highly unlikely to cause condemned inmates pain or discomfort. Specifically, the state points out that it uses a dose of anesthetic that is 10 times greater than what patients who undergo surgery are given. This renders inmates “unconscious for hours with essentially no chance of regaining consciousness during the execution,” they argue. In addition, the state defends its use of a paralytic agent, saying it prevents involuntary movements during the execution, thus preventing unplanned disruptions and ensuring an inmate a more dignified death.

Deciding the Baze Case

If the Supreme Court rules in favor of the inmates and adopts the unnecessary risk test, the justices could send the case back to the Kentucky Supreme Court with instructions to reconsider the state’s lethal injection protocol in light of this new standard. Such a ruling would almost certainly make it easier for death row inmates around the country to challenge the lethal injection protocol in their states and would probably lead to an increase in death row appeals.

The court could go a step further, however, and take upon itself the task of applying the unnecessary risk test to determine whether Kentucky’s lethal injection procedure violates the Eighth Amendment. The justices might consider this latter option to be preferable since it would allow them to give further guidance to lower courts that will be applying the test in future cases.

On the other hand, the court could rule with the state of Kentucky and adopt the substantial risk standard. In that case, the justices could simply affirm the state court’s ruling. Or they could decide that the state high court chose the correct standard of review but applied it incorrectly, in which case the justices also might apply the test themselves and rule on whether Kentucky’s lethal injection protocol violates the Eighth Amendment.

Regardless of the standard they choose, any decision that directly addresses the constitutionality of Kentucky’s lethal injection protocol is likely to be highly significant. As already noted, the protocol at issue in the Baze case is used in virtually all executions in the United States. Thus a ruling that upholds the existing protocol would make it much harder in the future for death row inmates to challenge the method of their executions.

On the other hand, a ruling that invalidates Kentucky’s lethal injection procedure would force the federal government and virtually all states with death penalty statutes on the books to abandon their existing lethal injection method. If such a ruling is handed down, some states that have capital punishment statutes but that rarely if ever execute condemned inmates, like New Hampshire and Connecticut, might see the decision as an opportunity to repeal their death penalty laws rather than try to fix them. Other states, especially those that regularly perform executions, such as Texas and Florida, might reformulate their lethal injection protocols with an eye toward surviving future constitutional challenges. Indeed, they might adopt the alternate method recommended by Baze and Bowling.

But while the court’s ruling in the Baze case might force states to refine their capital punishment laws, it is unlikely to bring the debate over capital punishment much closer to an end. Given the high number of new death row appeals each year, new and important cases and controversies are likely to continue to be brought before the high court for the foreseeable future.