Baze Hearing Ignores Some Key Issues

On Monday I attended the oral argument before the Supreme Court in Baze v. Rees. This case concerns the constitutionality of the three-drug lethal injection protocol that Kentucky, and all death penalty states but one, uses to execute condemned inmates. The petitioners, Kentucky death row inmates Ralph Baze and Thomas Bowling, argued that the protocol causes an unnecessary risk of pain, and therefore violates the Eighth Amendment's prohibition against cruel and unusual punishment.

We, together with the Rutherford Institute, filed a friend-of-the-court brief in support of Baze and Bowling. Unfortunately, the central point made in our brief - that the secrecy surrounding the lethal injection protocols has enabled the states to use them despite the serious risk that inmates will suffer excruciating pain - was not addressed at the hearing.

Nor was the documented history of botched executions and the pain that they have caused the condemned to endure fully explored. By ignoring these fundamental issues, the Court missed the practical significance of this case - that the states have clandestinely adopted an unexamined and poorly administered method of execution which they tout as painless, when in fact it may well cause inmates serious, excruciating pain and suffering. The Court stayed away from these practical realities and instead focused on such surface issues as alternative protocols, available safeguards and its own caseload.

Donald Verrilli argued for Baze and Bowling. Many of the justices' questions focused on alternatives to the current lethal injection protocol - both about ways to improve the three-drug cocktail and about the petitioners' proposed one-drug alternative. The liveliest exchange occurred when Justice Scalia asked Verrilli where the Constitution requires a painless method of execution, and pushed him to weigh in on the constitutionality of older methods of execution such as hanging and electrocution.

Chief Justice Roberts raised the concern that if the Court found the three-drug protocol unconstitutional and endorsed the petitioners' one-drug protocol, the Court would soon see an inmate arguing that the one-drug protocol was untried, undignified, and therefore unconstitutional. This concern over a glut of lawsuits surrounding methods of execution was later echoed by Justice Scalia, who hesitated to send this case back to the trial court, which he claimed would halt all executions for years to come.

Roy Englert argued on behalf of the state of Kentucky. Englert contended that Kentucky has "excellent safeguards" in place that prevent excruciating pain from occurring during the execution process. The justices, particularly Justice Ginsburg, questioned Englert about the qualifications of the people who monitor executions in Kentucky.

The justices also questioned Englert on the feasibility of the one-drug protocol, with Justice Stevens questioning the State's justification and need for the second drug, pancuronium bromide, which serves only to paralyze the inmate. This line of questioning raised the point that the Kentucky legislature has banned the use of such neuromuscular blocking agents when euthanizing animals.

Englert gave part of his argument time to Gregory Garre of the United States Solicitor General's office, which filed a friend-of-the-court brief in support of the state of Kentucky. Garre argued that the Eighth Amendment does not prohibit negligently inflicted pain. Prompted by questions from Justice Scalia, Garre stated that the petitioners' proposed standard would embroil the Court in endless litigation surrounding methods of execution.

The Justices asked only one question during Verrilli's three-minute rebuttal, in which he underscored the risk of excruciating pain caused by the three-drug protocol by highlighting data from states that have studied the physical effects of lethal injection executions on inmates.