Execution by Lethal Injection not Unconstitutional. Yet.
In Baze v. Rees, announced today, the U.S. Supreme Court rejected claims that execution by lethal injection, at least using the 3 drug cocktail employed by the State of Kentucky, violates the 8th Amendment.
Chief Justice John Roberts, writing in a plurality opinion, stated, “We ... agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment." The cocktail in question consists of an anesthetizing drug administered first, followed by two admittedly painful drugs that actually cause death.
Justices Kennedy and Alito joined in Roberts’ opinion. Justices Stevens joined in the outcome, but doesn’t consider this debate over. Justices Thomas and Scalia differ with Robert’s formulation of the standard for cruel and unusual punishments, but concur in the outcome. Justice Breyer agreed there was no evidence that the method created a risk of unnecessary suffering, but noted the lawfulness of the penalty itself was not before the court.
Justices Ruth Bader Ginsburg and David Souter dissented, finding the evidence sufficient to establish that the combination of drugs used creates a risk of unnecessary suffering, due to Kentucky’s failure to require protocols to insure the inmate is actually unconscious before the two lethal drugs are administered.
