Perpetuating the Constitutional Uncertainty of Lethal Injection Protocols: A Comment on Baze v. Rees

Ryan Ellersick


In the thirty years since the United States Supreme Court ended the moratorium on capital punishment, the federal government and the states have put over 1000 people to death. Many of those individuals were executed by lethal injection, the current method of choice for the federal government and thirty-six of the thirty-seven states that authorize the death penalty. While lethal injection as a method of execution is presumptively humane,3 the manner in which it is performed has raised strong objections. Most lethal injection protocols employ a three-drug combination designed to put the inmate into a state of unconsciousness and paralysis prior to administration of the drug that ultimately causes death. However,many inmates and death penalty opponents claim that the inherent risk in these protocols-namely, that the first drug will not induce adequate unconsciousness, thereby allowing the inmate to languish in a paralyzed state of excruciating pain resulting from administration of the final drugs-violates the Eighth Amendment's prohibition against "cruel and unusual punishments.'  Unfortunately, the Supreme Court "has not directly addressed the constitutionality of a method of execution since 1878," leaving the lower courts in a state of confusion regarding the proper standard for reviewing inmates' claims.

In Baze v. Rees, the Supreme Court sought to dispel uncertainty among the lower courts by articulating a standard for assessing the constitutionality of a lethal injection protocol. In a 7-2 decision, the Supreme Court upheld Kentucky's lethal injection protocol against the challenge of two death row inmates who argued the protocol presented an "unnecessary risk" of inflicting excruciating pain. Despite the nearly unanimous decision of the Court, only three Justices supported the standard that ultimately emerged in the plurality opinion. The proper standard for reviewing the constitutionality of execution procedures, according to the plurality, turned on whether the protocol posed a "substantial risk of serious harm" that could be "significantly reduce[d]" by "alternative procedure[s]" that were "feasible" and "readily implemented." "If a State refuse[d] to adopt such an alternative ... without a legitimate penological justification... then a State's refusal to change its method [could] be viewed as 'cruel and unusual' under the Eighth Amendment."

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