SUPREME COURT OF THE UNITED STATES
BAZE et al. v.
REES, COMMISSIONER, KENTUCKY DEPARTMENT OF CORRECTIONS, et al.
certiorari to the supreme court of kentucky
No. 07–5439. Argued January 7, 2008—Decided April 16, 2008
Lethal injection is used for capital punishment by
the Federal Government and 36 States, at least 30 of which (including
Kentucky) use the same combination of three drugs: The first, sodium
thiopental, induces unconsciousness when given in the specified amounts
and thereby ensures that the prisoner does not experience any pain
associated with the paralysis and cardiac arrest caused by the second
and third drugs, pancuronium bromide and potassium chloride. Among other
things, Kentucky’s lethal injection protocol reserves to qualified
personnel having at least one year’s professional experience the
responsibility for inserting the intravenous (IV) catheters into the
prisoner, leaving it to others to mix the drugs and load them into
syringes; specifies that the warden and deputy warden will remain in the
execution chamber to observe the prisoner and watch for any IV problems
while the execution team administers the drugs from another room; and
mandates that if, as determined by the warden and deputy, the prisoner
is not unconscious within 60 seconds after the sodium thiopental’s
delivery, a new dose will be given at a secondary injection site before
the second and third drugs are administered.
Petitioners, convicted murderers sentenced
to death in Kentucky state court, filed suit asserting that the
Commonwealth’s lethal injection protocol violates the
Eighth Amendment ’s ban on “cruel and unusual punishments.” The
state trial court held extensive hearings and entered detailed
factfindings and conclusions of law, ruling that there was minimal risk
of various of petitioners’ claims of improper administration of the
protocol, and upholding it as constitutional. The Kentucky Supreme Court
affirmed, holding that the protocol does not violate the
Eighth Amendment because it does not create a substantial risk of
wanton and unnecessary infliction of pain, torture, or lingering death.
Held: The judgment is affirmed.
217 S. W. 3d 207, affirmed.
Chief Justice Roberts,
joined by Justice Kennedy and
Justice Alito, concluded that Kentucky’s
lethal injection protocol satisfies the
Eighth Amendment . Pp. 8–24.
1. To constitute cruel and unusual punishment,
an execution method must present a “substantial” or “objectively
intolerable” risk of serious harm. 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. Pp. 8–14.
(a) This Court has upheld capital
punishment as constitutional. See Gregg v. Georgia,
428
U. S. 153 . Because some risk of pain is inherent in even the most
humane execution method, if only from the prospect of error in following
the required procedure, the Constitution does not demand the avoidance
of all risk of pain. Petitioners contend that the
Eighth Amendment prohibits procedures that create an “unnecessary
risk” of pain, while Kentucky urges the Court to approve the
“ ‘substantial risk’ ” test used below. Pp. 8–9.
(b) This Court has held that the
Eighth Amendment forbids “punishments of torture, … and all others
in the same line of unnecessary cruelty,” Wilkerson v. Utah,
99 U. S.
130 , such as disemboweling, beheading, quartering, dissecting, and
burning alive, all of which share the deliberate infliction of pain for
the sake of pain, id., at 135. Observing also that
“[p]unishments are cruel when they involve torture or a lingering
death[,] … something inhuman and barbarous [and] … more than the mere
extinguishment of life,” the Court has emphasized that an electrocution
statute it was upholding “was passed in the effort to devise a more
humane method of reaching the result.” In re Kemmler,
136
U. S. 436 . Pp. 9–10.
(c) Although conceding that an execution
under Kentucky’s procedures would be humane and constitutional if
performed properly, petitioners claim that there is a significant risk
that the procedures will not be properly followed—particularly,
that the sodium thiopental will not be properly administered to achieve
its intended effect—resulting in severe pain when the other chemicals
are administered. Subjecting individuals to a substantial risk of future
harm can be cruel and unusual punishment if the conditions presenting
the risk are “sure or very likely to cause serious illness and needless
suffering” and give rise to “sufficiently imminent dangers.” Helling
v. McKinney,
509 U. S.
25 . To prevail, such a claim must present a “substantial risk of
serious harm,” an “objectively intolerable risk of harm.” Farmer
v. Brennan,
511
U. S. 825 , and n. 9. For example, the Court has held that an
isolated mishap alone does not violate the
Eighth Amendment , Louisiana ex rel. Francis v. Resweber,
329
U. S. 459 , because such an event, while regrettable, does not
suggest cruelty or a “substantial risk of serious harm.” Pp. 10–12.
(d) Petitioners’ primary contention is that
the risks they have identified can be eliminated by adopting certain
alternative procedures. Because allowing a condemned prisoner to
challenge a State’s execution method merely by showing a slightly or
marginally safer alternative finds no support in this Court’s cases,
would embroil the courts in ongoing scientific controversies beyond
their expertise, and would substantially intrude on the role of state
legislatures in implementing execution procedures, petitioners’ proposed
“unnecessary risk” standard is rejected in favor of Farmer’s
“substantial risk of serious harm” test. To effectively address such a
substantial risk, a proffered alternative procedure must be feasible,
readily implemented, and in fact significantly reduce a substantial risk
of severe pain. A State’s refusal to adopt such an alternative in the
face of these documented advantages, without a legitimate penological
justification for its current execution method, can be viewed as “cruel
and unusual.” Pp. 12–14.
2. Petitioners have not carried their burden of
showing that the risk of pain from maladministration of a concededly
humane lethal injection protocol, and the failure to adopt untried and
untested alternatives, constitute cruel and unusual punishment.
Pp. 14–23.
(a) It is uncontested that failing a proper
dose of sodium thiopental to render the prisoner unconscious, there is a
substantial, constitutionally unacceptable risk of suffocation from the
administration of pancuronium bromide and of pain from potassium
chloride. It is, however, difficult to regard a practice as “objectively
intolerable” when it is in fact widely tolerated. Probative but not
conclusive in this regard is the consensus among the Federal Government
and the States that have adopted lethal injection and the specific
three-drug combination Kentucky uses. Pp. 14–15.
(b) In light of the safeguards Kentucky’s
protocol puts in place, the risks of administering an inadequate sodium
thiopental dose identified by petitioners are not so substantial or
imminent as to amount to an
Eighth Amendment violation. The charge that Kentucky employs
untrained personnel unqualified to calculate and mix an adequate dose
was answered by the state trial court’s finding, substantiated by expert
testimony, that there would be minimal risk of improper mixing if the
manufacturers’ thiopental package insert instructions were followed.
Likewise, the IV line problems alleged by petitioners do not establish a
sufficiently substantial risk because IV team members must have at least
one year of relevant professional experience, and the presence of the
warden and deputy warden in the execution chamber allows them to watch
for IV problems. If an insufficient dose is initially administered
through the primary IV site, an additional dose can be given through the
secondary site before the last two drugs are injected. Pp. 15–17.
(c) Nor does Kentucky’s failure to adopt
petitioners’ proposed alternatives demonstrate that the state execution
procedure is cruel and unusual. Kentucky’s continued use of the
three-drug protocol cannot be viewed as posing an “objectively
intolerable risk” when no other State has adopted the one-drug method
and petitioners have proffered no study showing that it is an equally
effective manner of imposing a death sentence. Petitioners contend that
Kentucky should omit pancuronium bromide because it serves no
therapeutic purpose while suppressing muscle movements that could reveal
an inadequate administration of sodium thiopental. The state trial court
specifically found that thiopental serves two purposes: (1) preventing
involuntary convulsions or seizures during unconsciousness, thereby
preserving the procedure’s dignity, and (2) hastening death. Petitioners
assert that their barbiturate-only protocol is used routinely by
veterinarians for putting animals to sleep and that 23 States bar
veterinarians from using a neuromuscular paralytic agent like
pancuronium bromide. These arguments overlook the States’ legitimate
interest in providing for a quick, certain death, and in any event,
veterinary practice for animals is not an appropriate guide for humane
practices for humans. Petitioners charge that Kentucky’s protocol lacks
a systematic mechanism, such as a Bispectral Index monitor, blood
pressure cuff, or electrocardiogram, for monitoring the prisoner’s
“anesthetic depth.” But expert testimony shows both that a proper
thiopental does obviates the concern that a prisoner will not be
sufficiently sedated, and that each of the proposed alternatives
presents its own concerns. Pp. 17–23.
Justice Stevens
concluded that instead of ending the controversy, this case will
generate debate not only about the constitutionality of the three-drug
protocol, and specifically about the justification for the use of
pancuronium bromide, but also about the justification for the death
penalty itself. States wishing to decrease the risk that future
litigation will delay executions or invalidate their protocol would do
well to reconsider their continued use of pancuronium bromide. Moreover,
although experience demonstrates that imposing that penalty constitutes
the pointless and needless extinction of life with only negligible
social or public returns, this conclusion does not justify a refusal to
respect this Court’s precedents upholding the death penalty and
establishing a framework for evaluating the constitutionality of
particular execution methods, under which petitioners’ evidence fails to
prove that Kentucky’s protocol violates the
Eighth Amendment . Pp. 1–18.
Justice Thomas,
joined by Justice Scalia, concluded that
the plurality’s formulation of the governing standard finds no support
in the original understanding of the Cruel and Unusual Punishments
Clause or in this Court’s previous method-of-execution cases; casts
constitutional doubt on long-accepted methods of execution; and injects
the Court into matters it has no institutional capacity to resolve. The
historical practices leading to the Clause’s inclusion in the Bill of
Rights, the views of early commentators on the Constitution, and this
Court’s cases, see, e.g., Wilkerson v. Utah,
99 U. S.
130 , all demonstrate that an execution method violates the
Eighth Amendment only if it is deliberately designed to inflict
pain. Judged under that standard, this is an easy case: Because it is
undisputed that Kentucky adopted its lethal injection protocol in an
effort to make capital punishment more humane, not to add elements of
terror, pain, or disgrace to the death penalty, petitioners’ challenge
must fail. Pp. 1–15.
Justice Breyer
concluded that there cannot be found, either in the record or in the
readily available literature, sufficient grounds to believe that
Kentucky’s lethal injection method creates a significant risk of
unnecessary suffering. Although the death penalty has serious risks—e.g.,
that the wrong person may be executed, that unwarranted animus about the
victims’ race, for example, may play a role, and that those convicted
will find themselves on death row for many years—the penalty’s
lawfulness is not before the Court. And petitioners’ proof and evidence,
while giving rise to legitimate concern, do not show that Kentucky’s
execution method amounts to “cruel and unusual punishmen[t].” Pp. 1–7.
Roberts, C. J.,
announced the judgment of the Court and delivered an opinion, in which
Kennedy and
Alito, JJ., joined. Alito, J., filed
a concurring opinion. Stevens, J., filed
an opinion concurring in the judgment. Scalia,
J., filed an opinion concurring in the judgment, in which
Thomas, J., joined.
Thomas, J., filed an opinion concurring
in the judgment, in which Scalia, J.,
joined. Breyer, J., filed an opinion
concurring in the judgment. Ginsburg, J.,
filed a dissenting opinion, in which Souter, J.,
joined.
