Today, the United States Supreme Court heard oral argument in the case of Baze v. Rees, regarding the constitutionality of Kentucky’s method for executing the death penalty. Kentucky uses a combination of three drugs originally developed in Oklahoma and presently in use in every state that has the death penalty except Nebraska. Audio (with still pictures) is on C-SPAN. Transcript is on the Court's site.
Overall, the argument appeared to go well for the state. Even Justice Stevens said the state had "a very strong case" (p. 41).
In the three-drug method, the first drug is a massive dose of anesthetic, approximately 10 times the amount needed to make a person unconscious for surgery. The second is a paralyzing agent that prevents involuntary muscle movement. The third is a large dose of potassium chloride, which stops the heart, causing death.
There is no dispute that this method is painless when properly administered. On the other hand, there is also no dispute that potassium chloride would be extremely painful if injected in a conscious person. Experts on both sides agree that could happen if, and only if, the initial anesthetic did not enter the bloodstream.
This case therefore involves the questions of whether a risk of pain in an execution method designed to be painless can be a violation of the Eighth Amendment, the standard for determining the amount of risk that is tolerable, and the extent to which available alternative methods weigh in that balance.
The standard for resolving this question is uncertain because the Supreme Court has not squarely addressed a method of execution in modern times. Nineteenth century decisions rejected attacks on the firing squad and the electric chair, but the twentieth century cases were decided on procedural grounds.
In today’s argument, most of the justices appeared to be very interested in bringing the issue to a close, rather than setting the stage for further litigation. However, they disagreed on how best to do that, probably reflecting a disagreement on the underlying standard.
The petitioners in this case argue strenuously that the use of a single, massive dose of barbiturate alone is an available, painless, foolproof alternative. The justices seemed to be agreed that the record in the present case does not support this assertion. Justice Breyer was particularly concerned about a statement in a Dutch euthanasia report that indicated that the barbiturate alone might not bring about death in every case (pp.7-8). He and Justice Souter seem to be leaning toward remanding the case for further evidence on this question. When the deputy solicitor general noted that the petitioners had failed to create the record, Justice Souter responded that if they dispose of the case on that basis the issue will simply come up in another case.
On the other hand, Justice Scalia, and probably Chief Justice Roberts and Justice Alito, appear to believe that the Kentucky decision can be affirmed and the matter resolved on the present record. If risk of error is not a constitutional consideration or if a person challenging a method of execution must establish some threshold of risk that has not been met in this case, then consideration of alternatives is not necessary.
Justices Stevens and Souter questioned the attorney for the state, Roy Englert, on why the second drug, the paralyzing agent, was used. He responded that it provided a more dignified death by preventing the involuntary muscle movements that may occur otherwise. This second drug has been the focus of attacks because it can make the inmate incapable of expressing pain even though he is fully awake and in agony when a third drug is administered. Englert expressed concern that if the states eliminated use of this drug, the next challenge would be that the method of execution is unconstitutional without it because it robs the condemned inmate of his dignity.
Justice Stevens responded that if the Court held that its use was unjustified, that would prevent any serious constitutional challenge to its omission. However, the history of capital litigation is that contradictory constitutional arguments are made all the time and sometimes succeed. We have seen statutes attacked for providing too much discretion and not enough. State death penalties are attacked for having "geographic disparity" while USDoJ is attacked for not forgoing the death penalty in states where it is not available for state-law offenses. Supreme Court precedent is no guarantee, as multiple states saw when they relied on Walton v. Arizona's rejection of a Sixth Amendment attack on judges finding the qualifying circumstances, only to see that exact argument accepted to strike down the same statute 12 years later in Ring v. Arizona.
The decision in this case may once again turn on the position taken by Justice Kennedy, who said relatively little during the argument. It is encouraging that, at pages 48-49, he questions whether the SG's standard would produce "endless litigation." That is, indeed, the main problem here.
If the Kentucky Supreme Court’s decision is affirmed outright, executions may resume shortly afterward. If the case is remanded for more fact-finding, the de facto moratorium could extend throughout 2008. Cases argued at this time last year were decided in March, April, or May, so we should have an answer in a few months.