ILNews

SCOTUS: Lethal injection allowed

Michael W. Hoskins
January 1, 2008
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While lethal injection itself isn't unconstitutional, a ruling today from the U.S. Supreme Court has left open the door for more legal challenges to how states administer the deadly drugs. But on a broader level, the one justice who supported the 1976 decision to reinstate Capital punishment is now in favor of reigniting the debate on the death penalty and striking it down.

In a widely splintered 7-2 decision in Baze, et al. v. Rees, et al., No. 07-5439, justices wrote a series of separate opinions totaling 97 pages as it cleared the way for death-row executions to resume nationwide and held that a three-drug injection used in at least 30 states is constitutional.

The court rejected the challenge by two Kentucky inmates that the state improperly administers the first drug in the three-chemical protocol used to make the inmate unconscious. Chief Justice John G. Roberts wrote the plurality opinion.

"To constitute cruel and unusual punishment, an execution method must present a 'substantial' or 'objectively intolerable' risk of serious harm," Chief Justice Roberts wrote. "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."

A majority of his colleagues set out their own concurring opinions, chiming in on the issue and agreeing or disagreeing with each other on various aspects of the plurality ruling, subsequent impact, and overall issue of the death penalty.

Three justices - Chief Justice Roberts and Justices Samuel Alito and Anthony Kennedy - clearly supported the new standard, but four others disagreed with it in whole or in part, one justice was silent on the point, and the other said the key issue was not one standard or another but the "facts and evidence" given about a state's execution method.

Justices Ruth Bader Ginsburg and David H. Souter dissented in their own writing, noting they would vacate and remand with instructions to consider whether Kentucky's omission of alternatives poses "an untoward, readily avoidable risk of inflicting severe and unnecessary harm."

Justices Clarence Thomas and Antonin Scalia concluded that the governing standard in today's ruling isn't supported by the Cruel and Unusual Punishments Clause or in its own precedent on method-of-execution cases, and that the standard casts doubt on long-accepted methods of execution.

Justice John Paul Stevens concluded that instead of ending the controversy, this case will generate debate not only about the constitutionality of the three-drug protocol but also about the justification for the death penalty itself. Writing that he'd strike down the death penalty, he noted, "The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits it produces has surely arrived."

But Chief Justice Roberts wrote, "The fact that society has moved to progressively more humane methods of execution does not suggest that capital punishment itself no longer serves valid purposes; we would not have supposed that the case for capital punishment was stronger when it was imposed predominantly by hanging or electrocution."

What may remain open is how states assess what alternative options are available and how states administer the drugs during a lethal injection. That's where Indiana has more than a passing interest in the lethal injection issue, one that's been raised frequently by Hoosier death-row inmates - including three in the past year who are now all dead.

Those inmates had filed federal suits challenging the state's lethal injection method, making similar claims as in Baze, but those suits never gained steam in District Court and are now moot: David Leon Woods and Michael Lambert were executed by lethal injection last year, while inmate Norman Timberlake died from natural causes in his prison cell in November 2007 while still on death row.

On Page 9 of Justice Ginsburg's dissent, she refers to one of Timberlake's hearings in writing about the state's protocol: "In Indiana, a physician also examines the inmate after injection of the first drug."

Other states' methods are also outlined, and the ruling leaves open the possibility that lethal injection could surmount to "cruel and unusual punishment" if done arbitrarily or incorrectly.

"If a state refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a state's refusal to change its method can be viewed as 'cruel and unusual punishment' under the Eighth Amendment," the plurality opinion states.

A number of states had postponed executions in anticipation of this court decision and now new dates can be set, absent any fresh legal challenges.
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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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