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AN E-BULLETIN
LEGAL INFORMATION INSTITUTE -- CORNELL LAW SCHOOL
lii.law.cornell.edu
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The following information has just arrived via the LII's
direct Project HERMES feed from the Supreme Court. A list of
links for today's material is followed by the syllabus for any
case which had one.
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DEATH PENALTY, LETHAL INJECTION, CRUEL AND UNUSUAL PUNISHMENT,
EIGHTH AMENDMENT
BAZE v. REES (07-5439 Syllabus)
http://www.law.cornell.edu/supct/html/07-5439.ZS.html
SENTENCING, CONTROLLED SUBSTANCES ACT, CONFORMING AMENDMENTS,
FELONY DRUG OFFENSE, ENHANCED MANDATORY MINIMIUM SENTENCE,
AMBIGUITY, CRIMINAL STATUTE, LENITY
BURGESS v. UNITED STATES (6-11429 Syllabus)
http://www.law.cornell.edu/supct/html/6-11429.ZS.html
SENTENCING, ARMED CAREER CRIMINAL ACT, FELON, RECIDIVIST, DWI,
FIREARM, DRIVING WHILE INTOXICATED, DRUNK DRIVING, GUN
BEGAY v. UNITED STATES (6-11543 Syllabus)
http://www.law.cornell.edu/supct/html/6-11543.ZS.html
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BAZE v. REES (No. 07-5439)
Web-accessible at:
http://www.law.cornell.edu/supct/html/07-5439.ZS.html
Argued: January 7, 2008 -- Decided: April 16, 2008
Opinion author: Roberts
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Lethal injection is used for capital punishment by the
Federal Government and 36 States, at least 30 of which
(including Kentucky) use the same combination of three
drugs: The first, sodium thiopental, induces unconsciousness
when given in the specified amounts and thereby ensures
that the prisoner does not experience any pain associated
with the paralysis and cardiac arrest caused by the second
and third drugs, pancuronium bromide and potassium chloride.
Among other things, Kentucky's lethal injection protocol
reserves to qualified personnel having at least one year's
professional experience the responsibility for inserting
the intravenous (IV) catheters into the prisoner, leaving
it to others to mix the drugs and load them into syringes;
specifies that the warden and deputy warden will remain
in the execution chamber to observe the prisoner and watch
for any IV problems while the execution team administers
the drugs from another room; and mandates that if, as determined
by the warden and deputy, the prisoner is not unconscious
within 60 seconds after the sodium thiopental's delivery,
a new dose will be given at a secondary injection site
before the second and third drugs are administered.
Petitioners, convicted murderers sentenced to death in
Kentucky state court, filed suit asserting that the Commonwealth's
lethal injection protocol violates the Eighth Amendment's
ban on "cruel and unusual punishments." The state trial
court held extensive hearings and entered detailed factfindings
and conclusions of law, ruling that there was minimal risk
of various of petitioners' claims of improper administration
of the protocol, and upholding it as constitutional. The
Kentucky Supreme Court affirmed, holding that the protocol
does not violate the Eighth Amendment because it does not
create a substantial risk of wanton and unnecessary infliction
of pain, torture, or lingering death.
Held: The judgment is affirmed.
217 S. W. 3d 207, affirmed.
Chief Justice Roberts, joined by Justice Kennedy and Justice
Alito, concluded that Kentucky's lethal injection protocol
satisfies the Eighth Amendment. Pp. 8-24.
1. To constitute cruel and unusual punishment, an execution
method must present a "substantial" or "objectively intolerable"
risk of serious harm. A State's refusal to adopt proffered
alternative procedures may violate the Eighth Amendment
only where the alternative procedure is feasible, readily
implemented, and in fact significantly reduces a substantial
risk of severe pain. Pp. 8-14.
(a) This Court has upheld capital punishment as constitutional.
See Gregg v. Georgia, 428 U. S. 153 . Because some risk
of pain is inherent in even the most humane execution method,
if only from the prospect of error in following the required
procedure, the Constitution does not demand the avoidance
of all risk of pain. Petitioners contend that the Eighth
Amendment prohibits procedures that create an "unnecessary
risk" of pain, while Kentucky urges the Court to approve
the " 'substantial risk' " test used below. Pp. 8-9.
(b) This Court has held that the Eighth Amendment forbids
"punishments of torture, ... and all others in the same
line of unnecessary cruelty," Wilkerson v. Utah, 99 U.
S. 130 , such as disemboweling, beheading, quartering,
dissecting, and burning alive, all of which share the deliberate
infliction of pain for the sake of pain, id., at 135. Observing
also that "[p]unishments are cruel when they involve torture
or a lingering death[,] ... something inhuman and barbarous
[and] ... more than the mere extinguishment of life," the
Court has emphasized that an electrocution statute it was
upholding "was passed in the effort to devise a more humane
method of reaching the result." In re Kemmler, 136 U. S.
436 . Pp. 9-10.
(c) Although conceding that an execution under Kentucky's
procedures would be humane and constitutional if performed
properly, petitioners claim that there is a significant
risk that the procedures will not be properly followed--particularly,
that the sodium thiopental will not be properly administered
to achieve its intended effect--resulting in severe pain
when the other chemicals are administered. Subjecting individuals
to a substantial risk of future harm can be cruel and unusual
punishment if the conditions presenting the risk are "sure
or very likely to cause serious illness and needless suffering"
and give rise to "sufficiently imminent dangers." Helling
v. McKinney, 509 U. S. 25 . To prevail, such a claim must
present a "substantial risk of serious harm," an "objectively
intolerable risk of harm." Farmer v. Brennan, 511 U. S.
825 , and n. 9. For example, the Court has held that an
isolated mishap alone does not violate the Eighth Amendment,
Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 ,
because such an event, while regrettable, does not suggest
cruelty or a "substantial risk of serious harm." Pp. 10-12.
(d) Petitioners' primary contention is that the risks they
have identified can be eliminated by adopting certain alternative
procedures. Because allowing a condemned prisoner to challenge
a State's execution method merely by showing a slightly
or marginally safer alternative finds no support in this
Court's cases, would embroil the courts in ongoing scientific
controversies beyond their expertise, and would substantially
intrude on the role of state legislatures in implementing
execution procedures, petitioners' proposed "unnecessary
risk" standard is rejected in favor of Farmer's "substantial
risk of serious harm" test. To effectively address such
a substantial risk, a proffered alternative procedure must
be feasible, readily implemented, and in fact significantly
reduce a substantial risk of severe pain. A State's refusal
to adopt such an alternative in the face of these documente
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