Yesterday, in an epic split decision reminiscent of Furman v. Georgia, the Supreme Court released its opinion in Baze v. Reese, the lethal injection challenge case. A copy of the opinion is at http://www.scotuswiki.com/index.php?title=Baze_v._Rees.
As I wrote in my Response to Sherry Colb, the Court had granted cert on a number of questions regarding lethal injection–is Kentucky’s three-drug protocol (more or less the same as used in other states) unconstitutional, and (perhaps more importantly), what standards should lower courts use when evaluating future unconstitutional-method claims. The court agreed 7-2 that everything is hunky-dory in Kentucky and the states can start killing again, but that was all that they agreed on. Scotusblog describes the disarray of the seven separate opinions:
The Court’s plurality [four justices -Borealis] 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.
Paul Cassell at the Volokh Conspiracy has posted an except of Scalia’s opinion, which he calls a “must-read” condemnation of Justice Stevens’ opinion.
I’ll be posting my analysis of the decision here in a couple of weeks.
2 responses so far ↓
1 Matt S. // Apr 20, 2008 at 5:58
I expected this to be a much closer decision than it was. The fact that it 7-2 really surprises me. I do think its interesting that Stevens helped restore the Death penalty in the 70’s and now he votes against this. Kind of odd but then Again I think its important for Judges not be pilers of Ideology that can’t we swayed.
2 Borealis // Apr 20, 2008 at 7:31
It is interesting, but not the first time. Harry Blackmun did the same thing back in 1994, when he wrote:
“From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored…to develop…rules that would lend more than the mere appearance of fairness to the death penalty endeavor…Rather than continue to coddle the court’s delusion that the desired level of fairness has been achieved…I feel…obligated simply to concede that the death penalty experiment has failed. “
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