Today the U.S. Supreme handed down one of the most anticipated opinions of the term, holding in a plurality decision that Kentucky’s use of a three-drug “cocktail” does not constitute “cruel and unusual” punishment in violation of the Constitution’s Eighth Amendment, despite the fact that one of the drugs may render the inmate unable to indicate if he or she is suffering pain. The decision in Baze v. Rees can be found here.
What is clear – even among the six justices whose opinion and concurrences protected the state’s ability to continue using the execution method – is that the decision seems to complicate, rather than clarify, the standard for Eighth Amendment death penalty analysis.
The decision presented a “battle of the standards” of sorts. Chief Justice John G. Roberts, Jr., who authored the opinion joined by Justice Anthony Kennedy and Justice Samuel Alito, said the standard should be whether an execution method creates a “substantial” or “objectively intolerable” risk of serious harm.
Justice Clarence Thomas, in a concurrence joined by Scalia, offered a different test: an execution method can only be found violative of the Eighth Amendment if is “deliberately designed to inflict pain.”
Justice Breyer set forth another standard of whether the method creates a “significant risk of unnecessary suffering.”
Justice John Paul Stevens, who concurred in the judgment, but was highly critical of the way the decision was rendered, wrote that the Court did more to further the debate over the death penalty than to clear it up.
“I assumed that our decision would bring the debate about lethal injection as a method of execution to a close,” Stevens wrote in his concurrence. “It now seems clear that it will not. . . . Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, [but] also about the justification for the death penalty itself.”
The Court also heard oral arguments in a case considering whether the death penalty as punishment for child rape constitutes cruel and unusual punishment. I’ll have more on that coming up.