by Alison J. Nathan, Visiting Assistant Professor of Law, Fordham University School of Law. Prof. Nathan is counsel of record for an amicus brief in support of the Petitioners in Baze v. Rees, which she filed on behalf of the Louis Stein Center for Law and Ethics at Fordham University School of Law.
Today the Supreme Court will hear oral argument in Baze v. Rees, an Eighth Amendment challenge to the protocol and procedures that Kentucky uses to execute inmates. The case has national significance because Kentucky uses the same combination of lethal drugs as almost every other death penalty state in the country: a three-drug combination of a short-acting anesthetic, a paralyzing drug, and a painful heart-stopping drug. Because nearly every state that engages in capital punishment employs the identical drug combination, all executions have now been put on hold until the Supreme Court hears and decides Baze. This widespread impact of the Court’s decision to hear the lethal injection case has led to some misconceptions about what is and is not at issue in Baze.
I begin with what is decidedly not at stake. The constitutional challenge in Baze is not to the death penalty writ large. Indeed, the challenge is not even to lethal injection per se. Rather, the inmates challenging the three-drug protocol and implementation procedures contend that states, like Kentucky, have blindly selected an unnecessarily cruel method—one rejected by veterinarians for euthanizing animals—that seriously risks causing an inmate to suffer excruciating pain before death. States have options should they wish to continue using lethal injection for executions. The most obvious such option—one noted by the Petitioners in Baze—is for States to follow the lead of veterinarians and use a single massive overdose of barbiturates. Veterinarians favor this approach because it does not carry a significant risk of pain even if unforeseen errors in the implementation occur.
Another misconception is that States have tried their best to implement a humane execution method and, therefore, courts should defer to the state legislative process. The history of the three-drug protocol plainly belies this assertion. In 1977, following the Supreme Court’s reinstatement of the death penalty in Gregg v. Georgia, Oklahoma became the first state to adopt lethal injection, based on a protocol conjured up by Oklahoma’s medical examiner, A. Jay Chapman, who lacked any relevant expertise. Without seeking input from any actual experts, Chapman devised the three-drug lethal injection protocol. Oklahoma’s lack of study and failure to consult with relevant experts did not prevent the protocol’s widespread adoption—department of corrections officials in state after state blindly copied Oklahoma’s procedure. A game of “follow the leader” (or what sociologists call a “cascade to mistaken consensus”), not deliberation, led to the pervasiveness of Chapman’s method.
As recent lethal injection litigation has demonstrated, the problems with this historical accident have proved substantial. Evidence has emerged that proves a high likelihood of botched executions in which incompetent executioners failed to properly anesthetize inmates, causing them to suffer torturous pain. Yet, in some cases, these inmates have been unable to express their conscious agony because of the paralytic drug. There are also some cases in which the botched execution has been more obvious. For example, in 2006, the execution of an Ohio inmate, Joseph Clark, lasted approximately 90 minutes. The execution was sufficiently gruesome that the brother of Clark’s victim, who witnessed the execution, has gone on record condemning the lethal injection protocol as unnecessarily cruel.
I do not intend to suggest that there are not critically important matters of constitutional law and justice at stake. To the contrary, for several reasons Baze has the potential to impact and even transform the debate about the death penalty in the United States. As a preliminary matter, it is noteworthy that the Supreme Court has not heard a method of execution challenge in more than 100 years. That was before the Supreme Court’s application of the Eighth Amendment to the States, well before the Court’s modern, post-Furman v. Georgia, Eighth Amendment jurisprudence, and many years before a vast majority of the western world rejected state-sponsored executions as legitimate punishment. In Baze, the Court has an opportunity to unequivocally affirm this country’s commitment to the constitutional principle of human dignity and the prohibition against the government’s imposition of cruel and unusual punishment—even for those whom our criminal justice system has deemed the worst of the worst and condemned to death.
Moreover, Baze presents an opportunity for the Court to correct the cascade to mistaken consensus that produced a needlessly flawed, yet pervasive, execution protocol. At the very least, constitutional judicial scrutiny should require that states in the business of executing people must engage in some minimal level of deliberation and investigation into the protocols and expertise that are required to terminate life as humanely and painlessly as modern technology reasonably allows.
Finally, Baze is important in that it can begin to bring much needed attention and transparency to the process by which states kill. On average, States execute approximately one person per week in this country, and yet media attention to actual executions has become exceedingly rare. Moreover, the public is kept in the dark about the realities of lethal injection executions. States have steadfastly guarded information about what drugs are being used, which dosage amounts are required, how the drugs are administered, the qualifications (or lack thereof) of the people who perform this dangerous and delicate task, and what evidence exists of botched executions. In addition, public scrutiny of the three-drug protocol has been limited by the protocol itself: because states inexplicably use the unnecessary paralytic agent, an inmate suffering pain during the execution may not be able to demonstrate his suffering. As a result, witnesses, including members of the media, see only a sanitized version. The public has assumed wrongly that states always execute inmates in a humane and painless manner.
In this context of secrecy, it is now the responsibility of the judiciary, including the Supreme Court, to scrutinize a practice that needlessly risks severe and unnecessary pain. Only then can the public make informed democratic decisions as to whether the punishment remains acceptable or violates our “evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 100-101 (1958).