Analysis: Focus on the mechanics of execution
The Supreme Court on Monday showed an acute fascination with the detailed mechanics of executing criminals using lethal drugs, but also displayed considerable uncertainty about whether they have chosen a proper case in which to rule on that method’s constitutionality. In a rapid-fire question-and-answer with three lawyers in Baze v. Rees (07-5439), most of the Justices showed very little interest in what legal standard they might employ if they ultimately do answer the basic question of whether the Eighth Amendment bars the use of the three-drug protocol now commonly employed.
Justice John Paul Stevens, the Court’s most liberal member, suggested explicitly at one point that the state of Kentucky probably should win in this case, if the issue was solely how well it administers the present protocol in order to assure that death occurs without great pain and with dignity. But, he said, that would leave open the issue of whether the protocol itself — the combination of three drugs — could pass constitutional muster.
Two of his colleagues, who have expressed doubt about the validity of that protocol – Justices Stephen G. Breyer and David H. Souter, raised the prospect that the Court perhaps should send the case back to state courts for a full exploration of whether there are alternatives, and whether those would bring about execution without constitutional violations.
The alternative stressed by the two Kentucky death row inmates’ lawyer, Washington attorney Donald B. Verrilli, Jr. , would be to switch to a single drug — a barbiturate — that not only would anesthetize the condemned prisoner, but, in a sufficient dose, would actually cause death. Justice Samuel A. Alito, Jr., who is the newest member of the Court with no significant record on death penalty issues, did not discuss the possibility of returning the case to lower courts for further study, but did express concern that there were no findings in the trial court on the alternative of a single-drug protocol. Without any findings on alternatives, Alito said, how could the Court hold that the existing three-drug protocol was unconstitutional?
Breyer also seemed troubled by what he considered the limited available evidence on alternatives, including the single-drug barbiturate suggestion. He tried to press Verrilli on the evidence for his contention that that would be a more acceptable alternative. “What’s the evidence for that?” Breyer asked. “What do I read to find it?”
Justice Antonin Scalia, among the Court’s most conservative Justices, spoke out strenuously against any move to return the case for more evidence-gathering, suggesting that would only mean a continuing nationwide moratorium on executions with a resolution of the validity of the three-drug protocol put off; Scalia said “it could take years.” Scalia also was the one Justice who focused on a constitutional standard to apply to execution methods, saying that it is not a constitutional requirement that a state use “the method of execution that causes the least pain.” Those who wrote the Eighth Amendment, he said, were only concerned with punishment that amounted to actual torture, “the intentional infliction of pain….There is no painless requirement in there.”
Chief Justice John G. Roberts, Jr., voiced concern about the potential that the Court might be drawn back into the constitutional dispute with new cases. If the inmates’ challenge to the three-drug protocol were to be upheld and the Court spoke favorably of a single-drug protocol, Roberts suggested, the next case would simply challenge that alternative as insufficient.
The impression emerged that the outcome may well depend upon the way Justice Anthony M. Kennedy approaches it. He was among the Justices most intently focusing on how the three-drug protocol works in practice, and what kinds of professionals with what kind of methodology might have to be employed in the execution process to assure that it would be constitutional — questions that also interested Justice Ruth Bader Ginsburg. Kennedy wondered if there would be any constitutional argument if it could be shown that, in 100 percent of the cases where the existing protocol were used, it had been properly administered.
The state of Kentucky’s advocate, Washington attorney Roy T. Englert, Jr., went into a lengthy and strong defense of every aspect of the current protocol as Kentucky administers it, indicating that all of the complaints the inmates’ case had made were not well founded in fact. His most rigorous challenge came from Justice Stevens.
Stevens began by asking Englert whether the constitutionality of the three-drug protocol itself it at issue in this case “or merely the question whether Kentucky has done an adequate job of using that protocol?” Only the latter, the lawyer replied. On that point, Stevens then said, “the record is very persuasive in your favor.” But then Stevens moved to what he was most concerned about: the use of the second drug in the protocol, the paralyzing drug pancuronium. “Do we have to wait for another case to decide that rule?” he asked. “I am terribly troubled by the fact that the second drug is what seems to cause all the risk of excruciating pain, and seems to be almost totally unnecessary in terms of any rational basis for requirement.”
Englert defended the use of that drug as “permissible,” but that did not satisfy Stevens. And Justice Ginsburg soon picked up on the expressed concern about the pancuronium and the reason for it being in the protocol sequence.
The attorney for Kentucky also had to confront pressing questions about why the protocol involves the use of drugs that Kentucky’s own legislature has forbidden for use in euthanizing animals.
Deputy U.S. Solicitor General Gregory G. Garre, joining in defending the three-judge protocol because the federal government, too, uses it for executions, sought to bring the Court’s attention back to the issue of standard for judging the constitutionality of any lethal injection protocol. It should be a standard of “substantial risk” of pain, he argued. He made what seemed like a concession when he told Justice Alito that, in using the standard he was proposing, there might be room for some “comparative analysis” of differinig or alternative protocols.
That got him into trouble with Justice Scalia. If comparative analysis of various execution methods is undertaken, Scalia said sharply, “this never ends. If that’s part of the analysis, there will always be some claim that there is some new method devised and once again executions are stayed throughout the country.”
Garre, with some help from Justice Kennedy’s questions, did seek to neutralize the concern about comparing alternatives by saying that such an analysis would only be undertaken if challengers to a particular protocol had succeeded, in the first step of the analysis, in showing a “substantial risk” of greater pain by the method being challenged than with the use of any alternative.