SCOTUS: Death By Lethal Injection Is Constitutional
by Adam B
Wed Apr 16, 2008 at 08:26:00 AM PDT
In a widely splintered opinion that ultimately reduces to a 7-2 decision, the Supreme Court held this morning that states may lawfully use lethal injection as a means of effecting capital punishment. The Court rejected claims by two Kentucky death row inmates that the method violated the Eighth Amendment ban on cruel and unusual punishment by inflicting needless pain and suffering, mostly in the risk that the designated procedures would not be properly followed in all cases.
As to why it's constitutional, that's a bit complicated. According Chief Justice Roberts, joined by Justices Kennedy and Alito:
Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of "objectively intolerable risk of harm" that qualifies as cruel and unusual. ...
Given what our cases have said about the nature of the risk of harm that is actionable under the Eighth Amendment, a condemned prisoner cannot successfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative.
Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining "best practices" for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology. Such an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution procedures -- a role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death
So, can a state be forced to employ a more humane method? Maybe, they write:
[T]he proffered alternatives must effectively address a "substantial risk of serious harm." To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. 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" under the Eighth Amendment.
Justice Stevens writes a concurrence that's unusual, to say the least. After focusing on the use of pancuronium bromide as part of the three-drug cocktail as being particularly cruel, he essentially says that the death penalty should be deemed unconstitutional because no expressed rationale really justifies it, but that under current precedent it clearly is, and he feels obliged to obey it:
The thoughtful opinions written by THE CHIEF JUSTICE and by JUSTICE GINSBURG have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty.
... I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment."
The conclusion that I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult. It does not, however, justify a refusal to respect precedents that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution. Under those precedents, whether as interpreted by THE CHIEF JUSTICE or JUSTICE GINSBURG, I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky’s lethal injection protocol violates the Eighth Amendment.
To which Justice Scalia pitches something of a fit, because how dare Justice Stevens be a judge and employ his own judgment!
It is simply not our place to choose one set of responsible empirical studies over another in interpreting the Constitution. Nor is it our place to demand that state legislatures support their criminal sanctions with foolproof empirical studies, rather than commonsense predictions about human behavior. "The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts." Gregg, supra, at 186 (joint opinion of Stewart, Powell, and STEVENS, JJ.). Were JUSTICE STEVENS’ current view the constitutional test, even his own preferred criminal sanction -- life imprisonment without the possibility of parole -- may fail constitutional scrutiny, because it is entirely unclear that enough empirical evidence supports that sanction as compared to alternatives such as life with the possibility of parole.
Justice Thomas, along with Scalia, would give legislatures even more latitude to allow for a painful execution:
As I understand it, that [plurality] opinion would hold that a method of execution violates the Eighth Amendment if it poses a substantial risk of severe pain that could be significantly reduced by adopting readily available alternative procedures. ... in my view, a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain
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.
So, in his view, gibbeting is out, as are "embowelling alive, beheading, and quartering," but not lethal injection.
Justices Ginsburg and Souter dissent:
It is undisputed that the second and third drugs used in Kentucky’s three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. [] Potassium chloride causes burning and intense pain as it circulates throughout the body. [] Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be "constitutionally unacceptable." The constitutionality of Kentucky’s protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentucky’s system is constitutional, the plurality states, because "petitioners have not shown that the risk of an inadequate dose of the first drug is substantial." I would not dispose of the case so swiftly given the character of the risk at stake. Kentucky’s protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentucky’s omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.
...if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.
The remainder of the dissent focuses on simple procedures employed in other states to ensure that the first drug was properly administered, steps which the Commonwealth of Kentucky declined to require.
[As for Justice Breyer, he agrees with the test that Ginsburg sets up, but believes the evidence presented was not sufficient to prove some other method would be significantly more humane.]
So the Court's not getting rid of the death penalty, or of this particular method. Instead, as that three-Justice plurality writes, it's up to us if we want to eliminate the death penalty, or make its infliction less barbaric:
Reasonable people of good faith disagree on the morality and efficacy of capital punishment, and for many who oppose it, no method of execution would ever be acceptable.... This Court has ruled that capital punishment is not prohibited under our Constitution, and that the States may enact laws specifying that sanction. ...
Throughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge. Our society has nonetheless steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection. [] The broad framework of the Eighth Amendment has accommodated this progress toward more humane methods of execution, and our approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment. There is no reason to suppose that today’s decision will be any different.
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