The Supreme Court handed down one of the most high-profile decisions of its term, the lethal injection case Baze v. Rees. The Court upheld Kentucky’s use of the execution method, holding that “that petitioners have not shown that the risk of an inadequate dose of the first drug is substantial.”
Chief Justice Roberts wrote the plurality opinion in which Justices Kennedy and Alito joined. Justices Stevens, Scalia, Thomas, Breyer, and Alito wrote opinions concurring with the majority. Justice Ginsburg filed a dissenting opinion that was joined by Justice Souter.
Chief Justice Roberts’ plurality struck at the idea that states must elimate all threats of pain in their methods of execution.
Some risk of pain is inherent in any method of execution—no matter how humane—if only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.
They also rejected the idea that a single mishap or ‘innocent misadventure’ with a method of execution does not suggest cruelty. The plurality balked at the idea that a prisoner should be able to argue against any method of execution that may have a “slight or marginally safter alternative.” By their reasoning, Courts would become boards of review for every inmate’s gripes about their particular form of execution and the courts would ultimately have to accept any alternatives that have a hypothetical marginal benefit. The plurality summed up their arguments succinctly:
Instead, the proffered alternatives must effectively address a “substantial risk of serious harm.” Farmer, supra, at 842. To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. 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” under the Eighth Amendment.
Justice Alito’s concurrence further clarifies his view that standard for review of a method of execution based on risk are very high. He fears a court system that is flooded with contests like this one and seeks to limit the cases that may arise in the future.