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Is Baze the new McCleskey?


There is lots of excitement over the Supreme Court's grant of certiorari on the lethal injection issue in Baze v. Rees, noted in our cert. grant post this morning. I even got a call from Australian Broadcasting. They asked me if this case would mean the end of the death penalty. Hardly.

A little over 20 years ago, the big new claim was "race of the victim bias." The claim, which is still being made today, was that the death penalty was imposed more often when a white person was the victim. Naturally, those prone to leap to racism as the explanation of first resort declared that this was the result of valuing the lives of black victims less, even though the same studies showed no disparity in the sentences of black defendants, as there surely would have been if racism were the reason. More on the actual reasons for the numbers is available here.

So naturally, the anti side had high hopes when the Supreme Court took up the issue in McCleskey v. Kemp, 481 U.S. 279 (1987). The decision in that case, though, had just the opposite of the effect they had hoped for. The standard set by the Supreme Court effectively shut down this argument in federal courts. A few states kept it alive on independent state grounds, but the battle was largely over.

There is a good chance that Baze will do the same for attacks on lethal injection. We should see a statement from the Supreme Court that murderers are not constitutionally entitled to a guaranteed pain-free death (something very few law-abiding people get). We should also see some clarification of the degree of risk that is deemed acceptable. If the margin for error is wide enough, it could shut down these cases. If it is narrower, we should at least get a clearer indication of what the states need to do, and they will proceed to do it.

The method of execution roadblock was cleared once before. States got rid of the gas chamber and electric chair, adopting the method that the opponents then assured us was humane and that they now attack. The roadblock could be cleared again during 2009.

Our previous post had a link to the state court opinion. It's pretty short. SCOTUSblog has links to the certiorari petition and opposition. Here are the questions presented in the certiorari petition:

I. Does the Eighth Amendment to the United States Constitution prohibit means for carrying out a method of execution that create an unnecessary risk of pain and suffering as opposed to only a substantial risk of the wanton infliction of pain?

II. Do the means for carrying out an execution cause an unnecessary risk of pain and suffering in violation of the Eighth Amendment upon a showing that readily available alternatives that pose less risk of pain and suffering could be used?

III. Does the continued use of sodium thiopental, pancuronium bromide, and potassium chloride, individually or together, violate the cruel and unusual punishment clause of the Eighth Amendment because lethal injections can be carried out by using other chemicals that pose less risk of pain and suffering?

IV. When it is known that the effects of the chemicals could be reversed if the proper actions are taken, does substantive due process require a state to be prepared to maintain life in case a stay of execution is granted after the lethal injection chemicals are injected?

The correct answer to Question IV is "Are you out of your cotton-pickin' mind?" It is a little surprising that the Court did not limit the grant of certiorari to exclude that question. On occasion, they have gone back and modified the grant to limit the questions. It will be interesting to see if they do here.

Finally, we will watch with interest to see if the Court stays tonight's scheduled execution in Texas.


It was just a matter of time before the court took one of these cases. They turned down the Tennessee case last year. With cases in Ohio, Missouri and California among others in the pipeline, it is not surprising. I cannot see the Court overruling the unanimous KY Supreme Court

SCOTUS denied a stay in this Texas execution tonight despite a Baze relted stay request.

Also, once again, this illustrates how reports of the death of the death penalty are greatly exaggerated.

What was the vote at the Supreme Court on the Baze issue?

Interesting how district judges are finding lethal injection cruel and unusual and not the appellate courts. Of course, Morales has not arrived at the 9th Circuit yet. I believe the OCCA, FL, KY, TN and the 8th Circuit have ruled it constitutional. Any others? I was surprised recently by the 9th Circuit in upholding Field and Brown out of California. Doesn't Judge Schroeder usually lean to the left? She recently upheld an AZ inmate's sentence also. One to watch for is Cooper out of CA.

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