Baze v. Rees

553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420, 2008 U.S. LEXIS 3476
Supreme Court of the United States·Decided April 16, 2008·No. 07-5439·Published·Cited by 1,027 cases

Opinions

Chief Justice Roberts

announced the judgment of the Court and delivered an opinion, in which Justice Kennedy and Justice Alito join.

Like 35 other States and the Federal Government, Kentucky has chosen to impose capital punishment for certain crimes. As is true with respect to each of these States and the Federal Government, Kentucky has altered its method [41] of execution over time to more humane means of carrying out the sentence. That progress has led to the use of lethal injection by every jurisdiction that imposes the death penalty.

Petitioners in this case — each convicted of double homicide — acknowledge that the lethal injection procedure, if applied as intended, will result in a humane death. They nevertheless contend that the lethal injection protocol is unconstitutional under the Eighth Amendment’s ban on “cruel and unusual punishments,” because of the risk that the protocol’s terms might not be properly followed, resulting in significant pain. They propose an alternative protocol, one that they concede has not been adopted by any State and has never been tried.

The trial court held extensive hearings and entered detailed findings of fact and conclusions of law. It recognized that “[tjhere are no methods of legal execution that are satisfactory to those who oppose the death penalty on moral, religious, or societal grounds,” but concluded that Kentucky’s procedure “complies with the constitutional requirements against cruel and unusual punishment.” App. 769. The State Supreme Court affirmed. We too agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment. The judgment below is affirmed.

I

A

By the middle of the 19th century, “hanging was the ‘nearly universal form of execution’ in the United States.” Campbell v. Wood, 511 U. S. 1119 (1994) (Blackmun, J., dissenting from denial of certiorari) (quoting State v. Frampton, 95 Wash. 2d 469, 492, 627 P. 2d 922, 934 (1981)); Denno, Getting to Death: Are Executions Constitutional? 82 Iowa [42] L. Rev. 319, 364 (1997) (counting 48 States and Territories that employed hanging as a method of execution). In 1888, following the recommendation of a commission empaneled by the Governor to find “‘the most humane and practical method known to modern science of carrying into effect the sentence of death,’ ” New York became the first State to authorize electrocution as a form of capital punishment. Glass v. Louisiana, 471 U. S. 1080, 1082, and n. 4 (1985) (Brennan, J., dissenting from denial of certiorari); Denno, supra, at 373. By 1915,11 other States had followed suit, motivated by the “well-grounded belief that electrocution is less painful and more humane than hanging.” Malloy v. South Carolina, 237 U. S. 180, 185 (1915).

Electrocution remained the predominant mode of execution for nearly a century, although several methods, including hanging, firing squad, and lethal gas were in use at one time. Brief for Fordham University School of Law, Louis Stein Center for Law and Ethics, as Amicus Curiae 5-9 (hereinafter Fordham Brief). Following the 9-year hiatus in executions that ended with our decision in Gregg v. Georgia, 428 U. S. 153 (1976), however, state legislatures began responding to public calls to reexamine electrocution as a means of ensuring a humane death. See S. Banner, The Death Penalty: An American History 192-193, 296-297 (2002). In 1977, legislators in Oklahoma, after consulting with the head of the anesthesiology department at the University of Oklahoma College of Medicine, introduced the first bill proposing lethal injection as the State’s method of execution. See Brief for Petitioners 4; Fordham Brief 21-22. A total of 36 States have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the most prevalent method of execution in the United States.1 It is also the method used by the [43] Federal Government. See 18 U. S. C. § 3591 et seq. (2000 ed. and Supp. V); App. to Brief for United States as Amicus Curiae la-6a (lethal injection protocol used by the Federal Bureau of Prisons).

[44] Of these 36 States, at least 30 (including Kentucky) use the same combination of three drugs in their lethal injection protocols. See Workman v. Bredesen, 486 P. 3d 896, 902 (CA6 2007). The first drug, sodium thiopental (also known as Pentothol), is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. App. 762-763, 631-632. The second drug, pancuronium bromide (also known as Pavulon), is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. Id., at 763. Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. Ibid. The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs. Id., at 493-494, 541, 558-559.

B

Kentucky replaced electrocution with lethal injection in 1998. 1998 Ky. Acts ch. 220, p. 777. The Kentucky statute does not specify the drugs or categories of drugs to be used during an execution, instead mandating that “every death sentence shall be executed by continuous intravenous injection of a substance or combination of substances sufficient to cause death.” Ky. Rev. Stat. Ann. § 431.220(l)(a) (West 2006). Prisoners sentenced before 1998 have the option of electing either electrocution or lethal injection, but lethal injection is the default if — as is the case with petitioners — the prisoner refuses to make a choice at least 20 days before the scheduled execution. §431.220(l)(b). If a court invalidates Kentucky’s lethal injection method, Kentucky law provides that the method of execution will revert to electrocution. §431.223.

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Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420, 2008 U.S. LEXIS 3476 (2008).

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