April 16, 2008

The Supreme Court rejects the constitutional challenge to execution by lethal injection.

The Supreme Court has decided the lethal injection case — PDF — and I'm not surprised, having listened to the oral argument, to see that the Court rejected the argument that the 3-drug protocol violates the constitutional ban on cruel and unusual punishment. I'll read the opinions and update. For now, here's Lyle Denniston's summary:
The final vote was 7-2 in Baze v. Rees (07-5439), although there was no opinion that spoke for five or more Justices. The Court’s plurality adopted as a standard for assessing the validity of an execution method whether it poses a “substantial risk of serious harm.” It rejected the death row inmate’s proposal that the standard be “unnecessary risk.”...

Chief Justice John G. Roberts, Jr.’s plurality opinion said that a death-row inmate cannot win a challenge to an execution protocol “merely by showing a slightly or marginally safe alternative.” Instead, there must be proof that the options available must prevent a “substantial risk of serious harm.” A state is free to choose a procedure, Roberts wrote, if it is shown to be “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” The opinion then added: “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 punishment’ under the Eighth Amendment.”
ADDED: The Chief Justice, joined by Justices Kennedy and Alito, observes that it is well-settled that capital punishment is constitutional. That being the case, "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.
In fact, the Court has never invalidated a method of execution, he writes. In approving of execution by firing squad in the late 19th century, for example, the Court distinguished methods that were designed to add pain or degradation to the process of killing and noted that the English have sometimes disemboweled a living person before beheading him or dissected him in public.

The 3-drug protocol could be used deliberately to torture a person. If the first drug is insufficient, he could remain conscious while the second drug paralyzed him and the third drug stopped his heart. But the argument in this case was not that states were "superadding" torture, but simply that a mistake could be made. This is not, according to the Chief Justice, the "objectively intolerable risk of harm" that would count as cruel and unusual, in violation of the 8th Amendment.

But if the drug doses could be improved to reduce the risk, why not require it? Roberts says that would set a standard that would foment litigation whenever one could point to "a slightly
or marginally safer alternative... embroil[ing] the courts in ongoing scientific controversies beyond their expertise," and intruding on state legislatures, which, in fact, have a good record of adopting humane execution methods.

Justice Thomas, joined by Scalia, rejects Roberts's standard. He vividly describes 18th century executions conducted in a manner intended "to terrorize the criminal, and thereby more effectively deter the crime."
These “superadded” circumstances “were carefully handed out to apply terror where it was thought to be most needed,” and were designed “to ensure that death would be slow and painful, and thus all the more frightening to contemplate.”...

Although the Eighth Amendment was not the subject of extensive discussion during the debates on the Bill of Rights, there is good reason to believe that the Framers viewed such enhancements to the death penalty as falling within the prohibition of the Cruel and Unusual Punishments Clause. By the late 18th century, the more violent modes of execution had “dwindled away,” and would for that reason have been “unusual” in the sense that they were no longer “regularly or customarily employed,”...Embellishments upon the death penalty designed to inflict pain for pain’s sake also would have fallen comfortably within the ordinary meaning of the word “cruel.” See 1 S. Johnson, A Dictionary of the English Language 459 (1773) (defining “cruel” to mean “[p]leased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting”); 1 N. Webster, An American Dictionary of the English Language 52 (1828) (defining “cruel” as “[d]isposed to give pain to others, in body or mind; willing or pleased to tor-
ment, vex or afflict; inhuman; destitute of pity, compassion or kindness”).
So it is enough, in Thomas's view, to avoid intentionally enhancing the pain of execution.
It is not a little ironic—and telling—that lethal injection, hailed just a few years ago as the humane alternative in light of which every other method of execution was deemed an unconstitutional relic of the past, is the subject of today’s challenge. It appears the Constitution is “evolving” even faster than I suspected.
Thomas thinks it's "obvious" that death penalty opponents will do what they can to obstruct the death penalty, which makes it important to establish a "bright-line rule" that will spare the states the pain of further litigation. But the Court has denied the states this mercy:
[T]oday’s decision is sure to engender more litigation. At what point does a risk become “substantial”? Which alternative procedures are “feasible” and “readily implemented”? When is a reduction in risk “significant”? What penological justifications are “legitimate”? Such are the questions the lower courts will have to grapple with in the wake of today’s decision.
Justice Breyer too concurs:
I cannot find, either in the record or in the readily available literature that I have seen, sufficient grounds to believe that Kentucky’s method of lethal injection creates a significant risk of unnecessary suffering.
Justice Stevens concurs. Noting that the case today does not foreclose further litigation of the issue, he gives the states some advice: consider ending the use of the paralyzing drug (pancuronium bromide). The Court won't find its use unconstitutional, but the states might be well-advised to end it on their own.

Stevens also writes at length to take the position that the death penalty itself — because of its "negligible returns to the State" — is "patently excessive and cruel and unusual" in violation of the 8th Amendment. This, as Justice Scalia puts it in his separate opinion, "repudiate[s Justice Stevens's] prior view and ... adopt[s] the astounding position that a criminal sanction expressly mentioned in the Constitution violates the Constitution." Because the 5th amendment text refers to "a capital, or otherwise infamous crime" (requiring a grand jury) and to the requirement of due process for the the deprivation of "life," Scalia writes, the Constitution must be read to approve of the death penalty.

The 2 dissenting justices are Ginsburg and Souter. Ginsburg writes the opinion. They would "remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentucky’s protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain."

40 comments:

JohnAnnArbor said...

So, the prisoner, hoping to escape death, provided no alternative. Roberts says, if you really care how it's done (rather than simply trying to escape your penalty), then you'll propose an alternative.

There is a credible alternative method out there. But somehow I doubt death penalty opponents will help the condemned with this.

Roger J. said...

The underlying issue is not the method of execution--it is execution itself. With any luck this decision will halt some of what I consider to be frivolous challenges. If opponents of the death penalty want to eliminate it, they have to do thru the legislative branch.

George said...

Two systems:

A) The person sentenced to death waits 15 days for his appeal to be heard with, perhaps, the possibility of final verdict being rendered by the 84-year-old king. The execution will be performed in the parking lot of a public square on a piece of cardboard by the son of an executioner who wants his boys to learn the trade. "There is no negotiating with him once the heads have ripened." In the link above he talks about his father taking him to work.

B) The person sentenced to death waits 10 to 20 years. The execution will be carried out under nearly painless circumstances in something approximating modern medical conditions. "The Constitution does not demand the avoidance of all risk of pain in carrying out executions," writes the chief lawgiver.

What a world.

What a world.

PatCA said...

This case does represent to non-lawyers like me the fetishization of "rights" in this country. A complete waste and abuse of the Court's time.

A safer alternative?! They're executing him!

downtownlad said...

I only have a problem with the death penalty as conducted by the Bush Administration, i.e. through torture before a trial has even taken place.

And yes - there are several documented cases of that.

Simon said...

DTL, do you have a credible source for that claim (I take the claim to be that the Bush administration has not only tortured detainees, but done so with intent to kill, without any kind of due process?

Roger J. said...

Justice Scalia does a tap dance on Justice Steven's opinion--almost a Fisking as it were. and I thought blog commentators were a snarky bunch. Wow.

mcg said...

Wow, you are right about that! Kind of a guilty pleasure to read, really. I felt kind of like I might were I witness to the ridicule of a senile man.

An Edjamikated Redneck said...

I recall a story I read several years ago where the condemned man was placed in a room and told if he survived 24 hours he was free to go.

The story detailed his thoughts over the 24 hours- afraid to eat or drink the available food because of fears of poison; afraid to move and of every sound afraid of venomous snakes or spiders in the dark room; afraid to turn on a light for fear of being electrocuted; finally after 23 hours and 59 minutes a disembodied voice tells he has survived and is free to go. He jumps up and grabs the doorknob and is instantly electrocuted and falls dead.

The story switches to the executioners talking about how they feel this is more humane than any of the old ways, because the condemned dies with hope in his heart and not dread; never mind the 24 hours of constant fear that preceded the instant death.

I have to say; I abhor living in a society that has to kill people in my name, and hope that one day we can convince people not to commit crimes that cause society to need the death penalty. Until then, though, fry away!

Ann Althouse said...

"Justice Scalia does a tap dance on Justice Steven's opinion--almost a Fisking as it were. and I thought blog commentators were a snarky bunch. Wow."

"Wow, you are right about that! Kind of a guilty pleasure to read, really. I felt kind of like I might were I witness to the ridicule of a senile man."

Justice Stevens is not senile, and I am sure he isn't chastened by Scalia's writings. The 2 Justices are reenacting the same old duel between original meaning and the notion of a living Constitution. Scalia's argument only works if you accept his interpretive theory. If you don't, and Stevens doesn't, it's just Scalia doing his thing again.

mcg said...

I certainly don't think Stevens is senile! Scalia's style just seemed that brutal, that's all. Of course this is a layperson who wouldn't have bothered to read it were it not for Roger J's description...

Middle Class Guy said...

The good news; they stated that the constitutionality of the death penalty is settled. Now, if they can only find a way to streamline the appeals process so people can be executed in a timely manner instead of sitting in prison for several years, even life, due to frivoulous claims.

Middle Class Guy said...

downtownlad said...
I only have a problem with the death penalty as conducted by the Bush Administration, i.e. through torture before a trial has even taken place.

And yes - there are several documented cases of that.




Ah, conspiracies abound.

rhhardin said...

Vets use only one chemical ; it seems peaceful enough.

Is the dog perhaps conscious and struggling to breathe for 30 seconds, unknown to everybody? It would have come up. People love their dogs.

I suppose you could brain-scan and look for panic activity.

Somebody holds the dog down in case it's not peaceful, so maybe everybody isn't so lucky. Still, it's likely to be the best that can be done, on the average.

An overdose of sedative sounds foolproof to me, but for dogs anyway you don't want it to drag out over many appointment slots.

Ann Althouse said...

Roberts specifically rejects veterinary practice as a relevant standard.

Richard Dolan said...

"Scalia's argument only works if you accept his interpretive theory. If you don't, and Stevens doesn't, it's just Scalia doing his thing again."

Where that old debate took on a (slightly) new twist was in the exchange over whose "experience" counts even if one adopts the Stevens "living constitution" approach. Stevens concludes that, in the end, it's the judge's personal experience that is determinative of the constitutional question of the constitutionality of the death penalty. Rejecting that tack, Scalia says that there is no reason why the contrary "experiences" of the state and federal legislators who have provided for lethal injection, and the many commentators and medical experts who vouch for it, shouldn't be the touchstone even under Stevens' approach.

The entire exchange between Scalia and Stevens related to an issue not presented by the case. Still, because the "living constitution" theory plainly does not require Stevens' judge-as-philosopher-king approach (what Scalia dismissed it as the judicial fiat approach), it would have been interesting to see what Stevens would have offered to justify it.

That aspect of the debate between them is not completely new either, of course, but I don't recall seeing it put in such sharp focus before. In applying the open-ended constitutional provisions, moreover, it is also where the real disagreement between the justices is more often found.

halojones-fan said...

"If the first drug is insufficient, he could remain conscious while the second drug paralyzed him and the third drug stopped his hear."

Which would, after a short time, lead to his deaf.

Roger J. said...

Roberts rejects vet practices....

Thats too bad, because as rhhardin says, I think people care a hell of a lot more about making sure their pets have a peaceful end, than whacking some sociopath. Fast, efficient, and peaceful--of course, pets do deserve that more than murderers.

Nichevo said...

I don't see what could be more efficient, quick and painless than a shot to the back of the neck.

Verso said...

Very interesting and informative summary of the opinions of the Justices, Ann. Thank you much.

Cedarford said...

mcg said...
Wow, you are right about that! Kind of a guilty pleasure to read, really. I felt kind of like I might were I witness to the ridicule of a senile man.


Stevens may not be senile, but the advanced age elderly are given to "180s" suddenly reversing lifetime beliefs and opinions. Plus momentary confusion, mistaking gas pedals for brakes. And sometimes bizarre behavior and superstitions based on feelings, not logic. Which reminds me of Stevens majority opinion where he was the swing vote based on his assertion that Jihad is not a conflict of international nature under Geneva as applied to captured terrorists of Al Qaeda.
The aging O'Connor increasingly was writing opinions, also eviscerated by Scalia, that she "ruled so because she felt so" getting out of bed that day.

Other Courts put doddering judges out to pasture as "Judges Emeritus". Can the nation continue to afford to indulge the SCOTUS appointees claim that the Constitution gives them the right to stay when they would be retired out of any other job or be ruled medically incapacitated?

Roger J. said...

C4: that argument can only properly be employed by democrats against a seventish presidential candidate.

Simon said...

Cedarford said...
"Can the nation continue to afford to indulge the SCOTUS appointees claim that the Constitution gives them the right to stay when they would be retired out of any other job ... ?"

Their claim? Tenure until death, resignation or impeachment has been the understanding of the good behavior clause for our entire history. And there is a dearth of agreement on what would be a better alternative; whatever its flaws may be, as Hamilton said in Federalist 78, the federal model "is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws."

Steven said...

Yeah, a "nitrogen gas chamber" would basically eliminate all questions of cruelty not intrinsic to the death penalty itself. Not even the marginal pain of a needle like how we put pets to sleep; just breathing normally, falling unconscious a few breaths later (without any sensation of suffocating), and then death.

Nichevo said...

Can someone be resuscitated with suitable medical care? Would one need a proper OR or simple O2 or CPR?

A coworker got hit with a blast of nitrogen out of a new AC system charged with the stuff. It really rocked him. I think he equated it to a hit of nitrous oxide.

Middle Class Guy said...

Nichevo said...
I don't see what could be more efficient, quick and painless than a shot to the back of the neck.



That is what the Chinese do. But I like the fact that they charge the condemned's family for the bullet.

Simon said...

I suppose a question I have for those who supported this challenge is whether they also think that firing squad is an unconstitutional method of execution? It seems to me that the physical mechanism of death - the stopping of the heart by injection of a foreign substance - is roughly the same, and although we've talked about potential pain felt by someone insufficiently anesthetized, I wouldn't think that pain could be any more than that felt by someone executed by firing squad (cf. Mailer, The Executioner's Song 981-2 (1979)).

Cedarford said...

Tenure until death, resignation or impeachment has been the understanding of the good behavior clause for our entire history. And there is a dearth of agreement on what would be a better alternative; whatever its flaws may be, as Hamilton said in Federalist 78, the federal model "is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws."

Oh, bosh, Simon!

Doddering old or medically incapacitated Federal Judges are booted off the booted off the active benches in other Federal Courts and made "Judge Emeritus". They keep their position, pay, perks but their incapacitation does not remain a risk to drag down the credibility of justice.

Quote Hamilton and his love of a lifetime judicial aristocracy all you want. In the 220 years since, no nation, even those that patterned their Constitution after ours, decided that lifetime appointed judges made any sense. Nor have any of the States with the sorry exception of the most corrupt state (next to Louisiana, of course) - Rhode Island.

Simon said...

Cedarford said...
"Doddering old or medically incapacitated Federal Judges are booted off the booted off the active benches in other Federal Courts and and made 'Judge Emeritus.'"

No they aren't - not in Article III courts, at any rate, which are the only courts that are relevant in this discussion. I think you mean senior status, and that is something taken voluntarily by eligible judges - it certainly doesn't amount to being "booted off" the bench. As to the states, the states have done many things that are inferior to the federal structure (sometimes freely, and sometimes after coercion (still the worst and most egregious that that the Warren court ever did)), and vice versa. It's not dispositive of anything - wisdom doesn't always win popularity contests.

rcocean said...

Damn I love Scalia and Thomas. Scalia demolished Stevens - that arrogant old coot.

Sad to say that Alito and Roberts refused to join them. Both are more in the Kennedy mode. Which is why our dear Arlen supported them.

The fact that this crazy case even made it to the SCOTUS shows how far we've come. 7 Republican nominees and only two got it right.

No reason to vote for McCain.

Balfegor said...

“ ‘That you and each of you, be taken to the place from whence you came, and from thence be drawn on a hurdle to the place of execution, where you shall be hanged by the necks, not till you are dead; that you be severally taken down, while yet alive, and your bowels be taken out and burnt before your faces—that your heads be then cut off, and your bodies cut in four quarters, to be at the King’s disposal. And God Almighty have mercy on your souls.’ ”

Cor. Echoes of Hugh Despenser. I hadn't realised that particular practice -- the disembowelment and burning before the eyes -- had continued as late as the 18th century.

Simon said...

rcocean said...
"Damn I love Scalia and Thomas. Scalia demolished Stevens - that arrogant old coot."

I agree with that, and, respectfully, disagree with Ann that the force of Scalia's dissent depends on whether one agrees with Scalia's view on how the constitution ought to be interpreted. IMO, it requires only that one disagree with the vision animating Stevens' dissent, which is not simply "the living constitution," but the sort of judicial oligarchy that the living constitution is often a figleaf for.

"No reason to vote for McCain."

If McCain wins, his nominees may vote with Roberts and Alito or with Scalia and Thomas. If McCain loses, whoever Clinton nominates will vote with Souter and Ginsburg. that is plenty of reason to vote for McCain.

rcocean said...

Simon,

I disagree. If its Obama vs. McCain there are three possible outcomes via the SCOTUS:

1) No nominees - no difference
2) Obama nominates a Ginsburg vs. McCain nominating a Souter/Stevens - no difference.
3) Obama nominates a Breyer vs. McCain nominating a Kennedy - no material difference.

In past 8 presidential terms, 3 had no SCOTUS nominees. 1 had one nominee, and 4 had two nominees. Of the last 7 Republican nominees we've gotten 2 liberals, 2 conservatives and 3 moderates.

And McCain will never nominate -let alone fight for - another Scalia. So who cares?

Beldar said...

Prof. Althouse, what think you of Justice Ginsburg's assertion that the Eighth Amendment is violated unless the execution protocol includes tickling the condemned murderer's eyelashes and calling out (must it be tenderly? she doesn't say) his name, to see whether he can be roused from his apparent unconsciousness?

And do you doubt that if either Clinton or Obama are elected, they will seek to appoint clones of Justice Ginsberg, or as near as may be found? (Stevens and Breyer, for these purposes, being too darned conservative.)

In lieu of a trackback, here is a link to my own extended take on today's decision and its many opinions -- paraphrased into lay language for the most part (although I commend your choice of pertinent block quotes!).

Simon said...

rcocean, that's a false dilemma. (1) is implausible; unless we assume that Stevens will still be on the court at 93 or 97 (depending on how long the next President serves), the next President gets at least one appointment. (2) is inconceivable - it's simply unimaginable that McCain would nominate a justice in the vein of Stevens or Souter. (3) is just wrong - from your perspective, Kennedy is better than Breyer insofar as right some of the time for the wrong reasons is better than usually wrong for whatever reasons (of course, Breyer is a much more intelligent man, and a much better writer, but that's not a concern for most GOP voters). Kennedy's a dreadful justice a horrible writer, and that he lucked into getting Bork's seat is a persistent thorn in the paw, but he is on the right side of 5-4 splits far more often than Breyer. And, of course, no President will ever nominate another Scalia, because our - his and mine - judicial philosophy too often cuts against the policy preferences of both parties. McCain may, however, nominate another Roberts or another Alito (better yet, a Sykes or Williams), and that shouldn't be overlooked. There simply isn't any comparison between McCain on judges vs. the other two on judges. Who cares? Anyone who cares about the role of the courts generally and the Supreme Court in particular ought to care.

Steven said...

"Can someone be resuscitated with suitable medical care? Would one need a proper OR or simple O2 or CPR?"

How soon are you trying to revive this someone? If seconds after unconsciousness, then just putting them in normal air might work. If a bit longer, CPR, machine ventilation, and no chance of survival. No chance of survival will kick in some point after the fourth minute following unconsciousness.

Call it five minutes from the switch to N2 to a pronouncement of death, with the executed feeling no pain/discomfort for the first few seconds and being fully unconscious after then.

Nichevo said...

Steven, thanks for the feedback. But since some people are attempted to be resuscitated for up to 20 minutes, I don't think 5 min actually = death, unless you say it irreversibly destroys the lungs. Even then, one could be put on a heart-lung bypass with oxygen perfused into the blood, and await a lung transplant. No?

But this is in terms of wanting to save life, of course, not take it. Meanwhile I'm not sure I understand why one would feel no discomfort, CO2 buildup aside.

Nichevo said...

Meanwhile, of course, the shot in the back of the neck is straight out of Orwell - KGB-Gestapo style back in the day, and who knows before that - and could thus appear distasteful to lovers of freedom, like owning an AK-47.

But just like Hitler being a vegetarian, the method is not necessarily blighted by this association. And of course the AK is highly functional.

I would think a heavy pistol-caliber JHP, so that the body can possibly be viewed. I guess you could refine things with an MRI and stereotaxis to ensure exact placement.

I guess you could even use a blade or spike of some kind. I think the point is to destroy the medulla oblongata, and as Agatha Christie reminds us, this can be done with the smallest kitchen knife, if sharp and precisely placed.

Revenant said...

Build a coffin with a number of shotgun shells rigged near where the person's head will lie -- sort of a mini-claymore. Make sure that the coffin is appropriately armored; kevlar should be fine.

Put the convict in the coffin; close the lid and latch it. Press the button: BOOM, the condemned's brain is blown to bits. Put the coffin in the ground and bury it. No muss, no fuss.

Balfegor said...

Put the convict in the coffin; close the lid and latch it. Press the button: BOOM, the condemned's brain is blown to bits. Put the coffin in the ground and bury it. No muss, no fuss.

You know, I'm sure some of you are just posting this stuff in jest, but this is kind of ghoulish. When the condemned has been killed, his body ought to be returned to his family for burial as intact as we can deliver it, not gratuitously mutilated with shotgun pellets and the like.