SUPREME COURT OF THE UNITED STATES
BAZE
et al. v. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF CORRECTIONS, et al.
certiorari to the supreme
court of kentucky
No. 07–5439. Argued January 7,
2008—Decided April 16, 2008
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 documented
advantages, without a legitimate penological justification for its
current execution method, can be viewed as “cruel and unusual.”
Pp. 12–14.
2. Petitioners have
not carried their burden of showing that the risk of pain from
maladministration of a concededly humane lethal injection protocol, and
the failure to adopt untried and untested alternatives, constitute cruel
and unusual punishment. Pp. 14–23.
(a) It is
uncontested that failing a proper dose of sodium thiopental to render
the prisoner unconscious, there is a substantial, constitutionally
unacceptable risk of suffocation from the administration of pancuronium
bromide and of pain from potassium chloride. It is, however, difficult
to regard a practice as “objectively intolerable” when it is in fact
widely tolerated. Probative but not conclusive in this regard is the
consensus among the Federal Government and the States that have adopted
lethal injection and the specific three-drug combination Kentucky uses.
Pp. 14–15.
(b) In light of
the safeguards Kentucky’s protocol puts in place, the risks of
administering an inadequate sodium thiopental dose identified by
petitioners are not so substantial or imminent as to amount to an
Eighth Amendment violation. The charge that Kentucky employs
untrained personnel unqualified to calculate and mix an adequate dose
was answered by the state trial court’s finding, substantiated by expert
testimony, that there would be minimal risk of improper mixing if the
manufacturers’ thiopental package insert instructions were followed.
Likewise, the IV line problems alleged by petitioners do not establish a
sufficiently substantial risk because IV team members must have at least
one year of relevant professional experience, and the presence of the
warden and deputy warden in the execution chamber allows them to watch
for IV problems. If an insufficient dose is initially administered
through the primary IV site, an additional dose can be given through the
secondary site before the last two drugs are injected. Pp. 15–17.
(c) Nor does
Kentucky’s failure to adopt petitioners’ proposed alternatives
demonstrate that the state execution procedure is cruel and unusual.
Kentucky’s continued use of the three-drug protocol cannot be viewed as
posing an “objectively intolerable risk” when no other State has adopted
the one-drug method and petitioners have proffered no study showing that
it is an equally effective manner of imposing a death sentence.
Petitioners contend that Kentucky should omit pancuronium bromide
because it serves no therapeutic purpose while suppressing muscle
movements that could reveal an inadequate administration of sodium
thiopental. The state trial court specifically found that thiopental
serves two purposes: (1) preventing involuntary convulsions or seizures
during unconsciousness, thereby preserving the procedure’s dignity, and
(2) hastening death. Petitioners assert that their barbiturate-only
protocol is used routinely by veterinarians for putting animals to sleep
and that 23 States bar veterinarians from using a neuromuscular
paralytic agent like pancuronium bromide. These arguments overlook the
States’ legitimate interest in providing for a quick, certain death, and
in any event, veterinary practice for animals is not an appropriate
guide for humane practices for humans. Petitioners charge that
Kentucky’s protocol lacks a systematic mechanism, such as a Bispectral
Index monitor, blood pressure cuff, or electrocardiogram, for monitoring
the prisoner’s “anesthetic depth.” But expert testimony shows both that
a proper thiopental does obviates the concern that a prisoner will not
be sufficiently sedated, and that each of the proposed alternatives
presents its own concerns. Pp. 17–23.
Justice
Stevens concluded that instead of ending the controversy, this
case will generate debate not only about the constitutionality of the
three-drug protocol, and specifically about the justification for the
use of pancuronium bromide, but also about the justification for the
death penalty itself. States wishing to decrease the risk that future
litigation will delay executions or invalidate their protocol would do
well to reconsider their continued use of pancuronium bromide. Moreover,
although experience demonstrates that imposing that penalty constitutes
the pointless and needless extinction of life with only negligible
social or public returns, this conclusion does not justify a refusal to
respect this Court’s precedents upholding the death penalty and
establishing a framework for evaluating the constitutionality of
particular execution methods, under which petitioners’ evidence fails to
prove that Kentucky’s protocol violates the
Eighth Amendment . Pp. 1–18.
Justice
Thomas, joined by Justice Scalia,
concluded that the plurality’s formulation of the governing standard
finds no support in the original understanding of the Cruel and Unusual
Punishments Clause or in this Court’s previous method-of-execution
cases; casts constitutional doubt on long-accepted methods of execution;
and injects the Court into matters it has no institutional capacity to
resolve. The historical practices leading to the Clause’s inclusion in
the Bill of Rights, the views of early commentators on the Constitution,
and this Court’s cases, see, e.g., Wilkerson v. Utah,
99 U. S.
130 , all demonstrate that an execution method violates the
Eighth Amendment only if it is deliberately designed to inflict
pain. Judged under that standard, this is an easy case: Because it is
undisputed that Kentucky adopted its lethal injection protocol in an
effort to make capital punishment more humane, not to add elements of
terror, pain, or disgrace to the death penalty, petitioners’ challenge
must fail. Pp. 1–15.
Justice
Breyer concluded that there cannot be found, either in the record
or in the readily available literature, sufficient grounds to believe
that Kentucky’s lethal injection method creates a significant risk of
unnecessary suffering. Although the death penalty has serious risks—e.g.,
that the wrong person may be executed, that unwarranted animus about the
victims’ race, for example, may play a role, and that those convicted
will find themselves on death row for many years—the penalty’s
lawfulness is not before the Court. And petitioners’ proof and evidence,
while giving rise to legitimate concern, do not show that Kentucky’s
execution method amounts to “cruel and unusual punishmen[t].” Pp. 1–7.
Roberts,
C. J., announced the judgment of the Court and delivered an
opinion, in which Kennedy and
Alito, JJ., joined.
Alito, J., filed a concurring opinion.
Stevens, J., filed an opinion concurring
in the judgment. Scalia, J., filed an
opinion concurring in the judgment, in which
Thomas, J., joined. Thomas, J.,
filed an opinion concurring in the judgment, in which
Scalia, J., joined.
Breyer, J., filed an opinion concurring
in the judgment. Ginsburg, J., filed a
dissenting opinion, in which Souter, J.,
joined.
