Baze Commentary: Going Forward

The following entry is by Kent Scheidegger of the Criminal Justice Legal Foundation. He filed an amicus brief in support of respondents, on behalf of the Criminal Justice Legal Foundation.

Opponents of the death penalty are echoing Justice Stevens’ comment in Baze v. Rees that the decision is specific to the factual record before the Court, that the issue is still open in other states with similar protocols, and that it can be litigated anew with different records. I don’t think so. The lead opinion specifically addressed Justice Stevens’ comment and said, “the standard we set forth here resolves more challenges than he acknowledges.” (Slip op., at 22.)

This remarkable passage goes on to say not just what a condemned murderer must do to prevail on a challenge but what he must do just to get a stay of execution.

“A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.”

The only wiggle room in that last sentence is whether a state’s protocol is substantially similar. That will not present too much difficulty in most states, because protocols can be amended to be made similar where they differ. The most common difference in other states is a step that makes the protocol better, the one emphasized by Justice Ginsburg in the dissent. She notes five other states that include a check for consciousness, which can be performed by a lay person, after the pentothal and before the pancuronium. If a state has all the elements that the lead opinion thought were sufficient to uphold the Kentucky protocol, plus the only step the dissent thought was needed to make it sufficient, the state has a powerful case to defeat any stay request. Evidence of problems with executions that predate the amended protocol has minimal probative value.

Make no mistake, getting executions stayed is what this is all about, not forcing the state to change its method. If the states did everything the opponents asked on Tuesday, they would attack that as unconstitutional on Wednesday. We have seen this before with lethal injection, which was the opponents’ proffered alternative when they were attacking the gas chamber. See slip op. at 24, citing Gomez v. United States Dist. Court for the Northern Dist. of Cal., 503 U. S. 653, 657 (1992) (Stevens, J., dissenting). In reaction to the Baze decision, the head of the Kentucky Coalition to Abolish the Death Penalty said, “We never expected it to do more than maybe slow down executions in Kentucky or elsewhere.” It did, but the delay should be nearly over.

We may see some stays erroneously granted, and it may be necessary to return to the Supreme Court to vacate them. It did so in Gomez, supra, and in Stewart v. LaGrand, 525 U. S. 1173 (1999), both Ninth Circuit cases.

The thing I find most remarkable about the Baze opinions is how much agreement there is in them, despite the multiple separate opinions. No one bought the idea that the mere showing of an alternative with any lesser degree of risk was sufficient to state a case. The argument based on veterinary standards, so much hyped before the decision, was dismissed by Justice Breyer as well as the lead opinion. Justice Breyer also dismembered the notorious Lancet article, which had been used as the foundation of so much of the criticism of lethal injection.

Most important is the complete rejection of the attempt to create a Catch-22 of requiring doctor participation. Not a single Justice bought it. The Court recognized this attempt for what it was — preventing the execution of the death penalty by imposing two incompatible conditions. If doctors must participate but doctors cannot participate, then executions cannot be performed. On page 8, the lead opinion says that it is settled that the death penalty is constitutional. “It necessarily follows that there must be a means of carrying it out.” This appears to reject not only the Catch-22 proposed in this case but also all new Catch-22s that may be devised in the future.

Since the beginning of the term, executions have been on hold but cases having been coming out the end of the normal review pipeline. This will create a spurt of executions in each state, as any residual issues are resolved.

Where do we go from here on methods of execution? If anyone really cares about improved methods — as opposed to arguing about methods as a tool for delay — there certainly are better ways. Dr. David Waisel wrote in the September issue of Mayo Clinic Proceedings that there are methods that do not involve intravenous injection, which is the source of most or all of the problems here. Another alternative is to return to the gas chamber but use a different gas in place of the cyanide used previously. Developing and implementing better methods would not be difficult and should not be controversial if we can simply agree that actual improvement is the goal.