On initial viewing the ruling in Baze v. Rees is simple–7 Justices upholding Kentucky’s lethal injection protocols and 2 Justices dissenting that ruling. Underneath that count is a splintered court that produced a separate concurring opinion by Justice John Paul Stevens.
In the majority controlling opinion Chief Justice John Roberts made the following statements. “A slightly or marginally safer alternative” would not suffice, the chief justice said. He added: “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual” under the Eighth Amendment.”
It is important to clarify that Baze v. Rees was a case about the method of lethal injection and whether those methods violated the 8th amendment–not lethal injection itself. “The challenge was to the details of the injection’s administration: the chemicals used, the training of the personnel, the adequacy of medical supervision, and the consequences and risk of error.” The justices were asked to rule if the risk imposed by the current lethal injection protocol in the state of Kentucky was in violation of the 8th amendment’s ban on cruel and unusual punishment.
“In an opinion concurring with the majority’s judgment, Justice Stevens said he felt bound to “respect precedents that remain a part of our law.” But outside the confines of the Kentucky case, he said, the time had come to reconsider “the justification for the death penalty itself.””
“He wrote that court decisions and actions taken by states to justify the death penalty were “the product of habit and inattention rather than an acceptable deliberative process” to weigh the costs and risks of the penalty against its benefits.”
What troubles Justice Stevens is that states are justifying their death penalties as a result of its flaws rather than its successes. If states wanted to improve upon their death penalties they would be facing challenges based on what they can do better, not on what they are already doing, and continue to do wrong.
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