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Argument preview: Baze v. Rees

Argument Preview

In Baze v. Rees, the Supreme Court, for the first time in history, will hear constitutional challenges to the three-chemical formula that 36 states use to carry out the death penalty by lethal injection. The issue is raised by two Kentucky death row inmates, neither of whom faces an imminent execution date. Their appeal poses three questions dealing with their claim that the particular drug protocol causes unnecessary pain and suffering that could be avoided, and thus violates the Eighth Amendment ban on “cruel and unusual punishment.” The case does not raise the question of whether lethal injection is always unconstitutional; it is an attack only on a specific formula.


The death penalty continues in use in 37 American states, and 36 of them use death by lethal injection. All 36 states and the federal government use a particular protocol of drugs that, in combination, result in death. It is that specific protocol that is at issue in this appeal. The last time the Supreme Court ruled on an Eighth Amendment issue involving a method of execution was on March 17, 1879, in the case of Wilkerson v. Utah, when it upheld the use of a firing squad. The most recent ruling on any constitutional challenge to a method of execution was on May 19, 1890, in the case of In re Kimmler, when it upheld the use of the electric chair against a due process challenge.

Over the long history of capital punishment in America, there have been repeated efforts to avoid barbaric methods of execution, and to move toward more humane procedures. Lethal injection was first adopted in Oklahoma in 1977, with the understanding that it would be more humane than the electric chair, the gas chamber, the firing squad, or hanging. This method was actually first used five years later, in the execution of Charles Brooks in Texas on December 2, 1982.

In the Supreme Court’s modern death penalty jurisprudence, it has seldom shown any interest in reviewing the constitutionality of specific methods of execution. And, in fact, it had repeatedly passed up chances to rule on the legality of the lethal injection method itself. In two decisions – Nelson v. Campbell in 2004 and Hill v. McDonough in 2006 – the Supreme Court ruled that death row inmates facing execution by lethal injection could bring constitutional challenges to that procedure. As a result, perhaps half of the inmates facing death by that method brought challenges in state or federal court – often, raising the issue on the very eve of execution.

The Kentucky case is different: there is no execution date set for either of the two inmates. It is important to stress, though, that they are not challenging their convictions, their death sentences, or the general proposition that lethal injection is a constitutionally valid method of execution. Their focus is on the specific chemical protocol used in Kentucky and 35 other states.

The appeal was filed by two Kentuckians who received death sentences for double murders. Ralph Baze was convicted of the shooting murders of a sheriff and a deputy sheriff in Powell County, Ky., in 1992, when they were trying to serve felony warrants on him from Ohio. They were killed execution-style. Thomas C. Bowling was convicted of the shooting murders of a couple, and wounding their two-year-old son, as the victims sat inside their car in a business parking lot in Lexington, Ky., in 1990. Bowling had run into their car with his vehicle, got out and shot the three, and then fled the scene.

They filed challenges to the three-drug protocol in Kentucky state court in 2004, leading ultimately to a ruling rejecting their challenge, by the Kentucky Supreme Court on April 19, 2007.

Petition for Certiorari

Counsel for Baze and Bowling filed their petition on July 11, 2007, after the close of the 2006-2007 Term of Court. It raised the three questions, seeking review of (1) the legal standard to be used in judging whether this particular protocol violates the “cruel and unusual punishment” ban in the Eighth Amendment, (2) whether it does so because there are alternatives with less risk of pain and suffering, and (3) whether the continued use of the method, knowing its risks of pain and suffering, is itself an Eighth Amendment violation. The petition also raised a fourth question, to test whether a state had a duty to have a medical team on hand at an execution to keep the inmate alive, should the execution process start but be interrupted by a court stay before it was completed.

After initial briefing on the petition, the Court scheduled consideration of the case for its Sept. 24, 2007, Conference, the first for the new Term. Later, additional briefs were filed to notify the Court that another petition, Taylor v. Crawford, had been filed (07-303), pointing out a split in lower courts on the standard for judging the validity of the lethal injection protocol. The Court granted review on Sept. 25, 2007, and put the case on a slightly expedited briefing schedule. On Oct. 3, 2007, it issued a new order limiting review to the three issues bearing directly on the protocol, thus eliminating the fourth question.

In what may well turn out to be the key issue in the case – the standard for judging the three-drug protocol – the petition suggests that lower courts have adopted a “haphazard flux,” including requiring “wanton infliction of pain,” “excessive pain,” “unnecessary pain,” “substantial pain,” “unnecessary risk,” “substantial risk of wanton and unnecessary pain,” and others. The petition itself prefers the “unnecessary risk of pain and suffering” formulation.

The petition argues that there is “undisputed evidence” in this record “that any and all of the current lethal injection protocols could be replaced with other chemicals that would pose less risk of pain while causing death than the tri-chemical cocktail currently used.” The three chemicals are sodium thiopental, to include unconsciousness; pancuronium bromide, to paralyze the muscles, and potassium chloride to cause cardiac arrest and death. The petition particularly focuses on the second chemical, contending that it masks the excruciating pain that results from the protocol’s used, so that the inmate suffers needlessly before dying.

The state of Kentucky, in opposing review, argued that the two inmates who filed the appeal were not legally entitled to pursue their claim because their appeal was procedurally barred as an unauthorized multiple application for post-conviction relief.

On the merits, the state contended that testimony at the trial of the case in state courts “established that the risk of any condemned inmatge being conscious during an execution was extremely remote.” It defends the standard the state Supreme Court used – that the protocol “did not expose condemned inmates to a substantial risk of wanton or unnecessary pain.”

The case, the state asserted, “presents no unique issues of law or fact that merit” Supreme Court review. The petition, it added, is “indistinguishable from any number of actions working their way through the state and federal court systems.” It disputed the assertion that the lower courts are adopting differing or conflicting standards. Federal and state courts across the nation, it contended, have unanimously upheld the validity of the three-chemical protocol. The state also argued that the standard suggested by the petition would lead “down an endless road of litigation….Condemned inmates will never run out of ideas for changes to the procedures, drugs or equipment used during lethal injection.”

Merits Briefs

Defense lawyers for the two Kentucky death row inmates, in their brief on the merits, have sharpened their argument to ensure that the Court focuses on the manner of lethal injection, not the validity of the lethal injection as such. They also have spelled out more clearly the standard they want the Court to embrace. The end result of each of those points of emphasis is the same: Kentucky’s procedures, using the familiar three-drug protocol, cannot withstand Eighth Amendment evaluation. “Even an execution method such as lethal injection that is humane in theory,” the brief contends, “can be carried out by means of flawed or haphazard procedures that create a foreseeable danger of inflicting severe pain in actual practice.” Kentucky’s system, they add, is “highly vulnerable to multiple errors, any one of which will result in the infliction of agonizing pain.”

But, in discussing the constitutional standard they propose, the defense lawyers do not suggest that there has to be a high level of predictability that pain would result from those procedures. Instead, they spell out in full their plea for a standard of “unnecessary risk.” They would have the Court adopt a three-step method of judging such a risk in a lethal injection protocol: first, assess the severity of the pain risked, then weigh the likelihood that pain would occur, and finally, determine the extent to which an alternative means would be feasible, either by changing a present process or switching to an alternative method. This is their legal definition: “An execution procedure creates unnecessary risk where, taken as a whole, it presents a significant risk of causing severe pain that could be avoided through the use of a reasonably available alternative or safeguard.” (emphasis added)

The three-drug protocol and the manner it is used in Kentucky, they contend, “inevitably involves the infliction of gratuitous pain in some executions,” so it fails the proposed test, that brief contends.

Kentucky’s merits brief denounces the proposed standard, saying it focuses on “the mere risk of future pain and suffering.” The “unnecessary risk” approach, the state asserts, “places the states under a continuing obligation to adopt the ‘lowest risk’ alternative that is ‘reasonably available,’ even if the risk being avoided is insignificant.” Thus, Kentucky adds, “any method of lethal injection that does not minimize the risk of pain and suffering would apparently be deemed unconstitutional.” The only workable standard, it contends, is one keyed to whether a method or manner of execution creates “substantial risk” of pain and suffering. Historically, it says, the focus has been on whether pain is actually inflicted by a given method of execution. It thus implies that use of a “substantial risk” approach would be more humane.

The state warns of “judicial micromanagement” of the capital punishment process across the country – a theme that the Justice Department picks up in its merits brief as an amicus supporting Kentucky.

The U.S. Solicitor General, like Kentucky, embraces a “substantial risk” standard. It cautions the Court that this case may be drawing it into an unending series of constitutional challenges demanding the use of more humane methods as they come along. The states, it argues, should not be required constitutionally to adopt the best available method, the one that causes the least amount of pain when compared to others. “There must be some feasible method by which a sentence of death may be executed,” and, it argues, Kentucky, other states and the federal government have found it in the three-drug protocol.

One of the amicus briefs supporting Kentucky – from the Criminal Justice Legal Foundation – argues that the Court should act to put a stop to continuing challenges to the lethal injection method. The time has come, it argues, to “bring this chapter to a close, not in a way that creates a moving target for a permanent new round of litigation in capital cases.” If that occurs, the brief warns, “A method of execution upheld as constitutional today could be attacked again tomorrow, simply because another alternative has been developed or discovered.”

There are briefs not supporting either party, from anesthesiologists making the point that members of their specialty should not be drawn into lethal injection methods to assure a proper level of unconsciousness before lethal drugs are injected, and from a group – the Anesthesia Awareness Campaign – urging the Court to be aware that there is a “recognized medical complication” of persons supposedly being under full general anesthesia to actually be aware of what is happening to them.

A half-dozen amici briefs support the Kentucky death row inmates and their challenge, bringing arguments about secrecy in the use of the lethal injection protocol that makes scrutiny less likely, international norms for execution methods, moral and legal concerns, Jewish legal tradition, and warnings by veterinarians against the hazards of some of the drugs used in the conventional lethal injection protocol. There is also a brief by four death row inmates, arguing that lethal injection can be administered properly, but that the courts must assure that that is the result.


Because the Supreme Court has not faced a method-of-execution case in at least 117 years, it is deeply uncertain how it will react to the case. An ambitious ruling perhaps could go far toward revolutionizing the capital punishment method most widely used now in the states, forcing capital punishment advocates in the states back into the laboratories to devise alternative protocols.. It may, on the other hand, fashion a fairly narrow opinion, laying down a standard, perhaps even borrowing one of the formulations embraced by lower courts, then leaving it to lower courts to apply that, state by state. As in many of the Court’s more controversial cases, it appears that Justice Anthony M. Kennedy may hold the potentially deciding vote.

Four Justices had indicated, in a Missouri case in May 2005, that they favored granting a stay of execution in a case testing the three-judge chemical protocol that is now in issue in the Baze case. Three of those four – Justices John Paul Stevens, joined by Justices Stephen G. Breyer and Ruth Bader Ginsburg – indicated their approval of a lower court judge’s opinion in the case criticizing the protocol based on evidence of “an excruciating death” resulting from the method. The fourth, Justice David H. Souter, simply voted for a stay, without giving reasons. (The case was Brown v. Crawford, stay application 04A977). If those four are, indeed, troubled by the leading protocol, then it would appear that they would be likely to turn to Justice Kennedy for support. He has not been sympathetic to last-minute challenges to execution in general. It may be that it could make a difference to him that the Baze case allows for a calmer examination of the medical evidence, and the legal implications that that evidence might suggest.

The case is sure to draw a host of amicus filings, on both sides of the issue.

Cases: Baze v. Rees