ILNews

SCOTUS: Lethal injection allowed

Michael W. Hoskins
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
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.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

ADVERTISEMENT