UPDATED TO 11:55 a.m.

In a widely splintered decision, the Supreme Court on Wednesday cleared the way for death-row executions to resume across the country, concluding that the most common method of lethal injection does not violate the Constitution. 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.”

Three Justices definitely supported the new standard, but four disagreed with it, in whole or in part. One Justice was silent on the point, and the other said the key issue was not one standard or another, but “facts and evidence” about a given state’s execution method.   The case was decided with seven opinions — only two Justices failed to write on their own.

While the opinion appeared to leave open a chance that some further challenges could be made to the use of lethal drugs under a specific procedure in another state, it rejected a challenge to the method as used in Kentucky, which is fairly close to the protocol used in 36 states and by the federal government.  The opinion also appeared to mean that the three drugs now used in all of those jurisdictions do not, alone or in combination, fail the Court’s new standard.  What might still be in issue is the actual process that a state uses to administer those drugs, monitor the inmate’s condition, and complete the execution.

If defense lawyers do now mount new challenges, they will have to seek new court orders delaying specific executions, because the Supreme Court had not issued a formal moratorium on executions, even though — as a practical reality — it had not allowed any scheduled execution to occur while it was considering the Baze case.  Thus, states would be free to schedule new execution dates.  The Court’s main opinion said flatly that states that used a procedure that is “substantially similar” to Kentucky’s would not be faced with stays — an indication that will encourage other states to imitate Kentucky’s now-valid procedure, if they do not take the same approach already.

Justice John Paul Stevens, joining the result only, called for the Court now to consider whether the death penalty in general is unconstitutional — an issue that was not before the Court in the Baze case.  Stevens wrote: “The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived.” In fact, Stevens went on to suggest that he personally would strike down the death penalty now — the first time he has taken that specific position.

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.”

The Court concluded, though, that the existing protocol in Kentucky — the state involved in this case — did not violate the Constitution.   The Court rejected the challenge by two Kentucky inmates that the state improperly administers the first drug in the three-chemical protocol — sodium thiopental, which is used to make the inmate unconscious. The Court said it agreed with “the state trial court and the State Supreme Court [in Kentucky]…that petitioners have not shown that the risk of an inadequate dose of he first drug is substantial.”  The Court also rejected the inmates’ argument that the Eighth Amendment required the state to adopt a one-drug protocol, which the Court called an “untested alternative.”

Roberts’ opinion was joined in full by only two Justices, Samuel A. Alito, Jr., and Anthony M. Kennedy.  Four other Justices joined the result only — Stevens, who concurred; Antonin Scalia and Clarence Thomas who each concurred and also joined each other’s concurrence, and Stephen G. Breyer, who concurred.  Justice Ruth Bader Ginsburg, joined by Justice David H. Souter, dissented.

Justice Alito, while joining the Roberts opinion, also wrote separately to defend the new constitutional standard against an attack from Justice Thomas (joined by Justice Scalia).  If the new standard is “properly understood,” Alito wrote, it will not “lead to litigation that enables ‘those seeking to abolish the death penalty…to embroil the states in never-ending litigation concerning the adequacy of their execution procedures.’ ” (quoting Thomas.)

Posted in Baze v. Rees, Uncategorized