Baze Commentary: Justice Stevens’ Concurrence

This entry is by Ty Alper, the associate director of the Death Penalty Clinic at Berkeley School of Law. He filed an amicus brief in support of the petitioners, on behalf of four death row inmates.

Much has been made, and will be made, of Justice Stevens’ concurrence in Baze, and his conclusion that the death penalty is unconstitutional. I wanted to focus for a moment, though, on Justice Stevens’ more mundane observation that “[t]he question whether a similar three-drug protocol [to that used in Kentucky] may be used in other States remains open, and may well be answered differently in a future case on the basis of a more complete record.” Justice Alito takes great pains to suggest that Justice Stevens is wrong, but I think he is surely right.

After all, Chief Justice Roberts’ plurality opinion acknowledges that, where the anesthetic drug is not properly delivered, “there is a substantial, constitutionally unacceptable risk of suffocation from the administration of the pancuronium and pain from the injection of potassium chloride.” The opinion also appears to adopt a “comparative” analysis that was urged by the petitioners and was the subject of some debate at oral argument. In order to prevail under the Baze plurality’s standard, a death row inmate “must show that the risk is substantial when compared to the known and available alternatives.” True, evidence of those alternatives was not presented in the Baze case. In fact, Chief Justice Roberts’ opinion states that this issue was waived because evidence of alternative procedures was not presented in the Kentucky courts. But this evidence exists and has been presented in states such as Tennessee, where the district court heard extensive testimony regarding the safety and availability of a one-drug, anesthetic-only procedure.

In the end, it is possible to summarize a fractured and complicated opinion simply: the Supreme Court upheld Kentucky’s procedures where, in Chief Justice Roberts’ words, the written protocol provides that “trained and experienced personnel” administered the procedure. What the opinion portends for litigation in states where the evidence is quite different — where it’s clear that the state’s practices do not live up to the provisions of the written protocol — remains to be seen.