The Effect of Baze v. Rees on Death Penalty Reform
Feature Story by Robert Schwartz - 4/18/2008
On April 16, the U.S. Supreme Court ruled that execution by lethal injection is not unconstitutionally cruel.
Their 7-2 ruling in Baze v. Rees, a case that brought national attention to the debate over death penalty reform, ended a de facto moratorium on executions nationwide.
The three-drug lethal injection cocktails have caused a considerable amount of controversy because evidence suggests that if the mixture of the three drugs does not work properly, it can cause extreme pain during execution.
Baze v. Rees addressed the question of whether or not usage of the cocktail violates the Eighth Amendment's prohibition of punishments deemed "cruel and unusual." The Court decided that it does not violate the prohibition.
In his majority opinion, Chief Justice John G. Roberts Jr., set out to create a strict protocol for determining what constitutes "cruel and unusual punishment."
"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," said Roberts.
However, not all of the Court agreed. The two dissenters in the case, Justices Ruth Bader Ginsberg and David Souter, both focused on implementing greater safeguards in the future.
Justice John Paul Stevens, although voting with the majority, wrote in a concurring opinion that he thought it was time to reexamine the death penalty issue in general.
Stevens said that he believes current death penalty laws "rest in part on a faulty assumption about the retributive force of the death penalty." He also expressed concern about the continuing risk of racial discrimination in death penalty sentences, as well as the risk of executing innocent people.
The civil rights community expressed profound disappointment with the Court's decision.
"The death penalty system was a flawed public policy before the Supreme Court agreed to review Kentucky's lethal injection protocol. ... And now that the Court has ruled, it remains as deeply a flawed public policy as ever," said Dianne Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty.
The ACLU Legal Director Steven Shapiro said, "The Supreme Court today ... upheld a lethal injection protocol that veterinarians in nearly half the states, including Kentucky, are prohibited from using when putting our pets to sleep."
States had delayed executions until the case was decided. At nearly seven months, this was the longest pause in executions in the United States in over 25 years.
"[We] renew our commitment to discuss the critical issues surrounding the death penalty system," Rust-Tierney said. "Since the last person was executed – on Sept. 24, 2007 – we have seen a number of remarkable events. Four names have been added to the list of people freed from death row after evidence of their innocence emerged, bringing that number to at least 128. New Jersey has abolished the death penalty. Nebraska has no effective death penalty after its Supreme Court ruled the electric chair unconstitutional. The American Bar Association has called for a nationwide moratorium on executions. And the United Nations, reflecting evolving trends around the globe, has voted for a worldwide moratorium."
Virginia, Oklahoma and Mississippi plan to resume executions. Other states are expected to follow.
