JURIST - Hotline: Death penalty debate still alive after Supreme Court decision in <u>Baze v. Rees</u>

Richard C. Dieter [Executive Director, Death Penalty Information Center]: "On April 16, the U.S. Supreme Court issued a splintered decision on the constitutionality of Kentucky's lethal injection process. Despite the seven different opinions, there were many aspects of the decision that were not surprising, and a few aspects which most people did not see coming. It was not surprising that Chief Justice Roberts held that as long as the death penalty is constitutional, there must be a lawful way of carrying it out. And it is long-standing doctrine that the Eighth Amendment does not require that methods for carrying out punishment be absolutely painless. It was not even surprising that the Court upheld Kentucky's execution process, given that the state had only carried out one lethal injection and did not have an extensive record revealing the myriad problems that have been exposed in other states.

It is likely that challenges to lethal injection will continue around the country. Inmates will attempt to show, based on extensive hearings, recent discovery, and examples of botched executions, that their state differs substantially from Kentucky in the way it carries out lethal injections. In some instances, they will be able to show that alternatives are readily available and have been recommended by a variety of experts. Some states may have to make changes in their training of personnel, supervision of the execution, or the drugs they apply if executions are to resume.

It was perhaps surprising that a number of the Justices expressed their concerns about the paralyzing effects of the second drug, pancuronium bromide. This is the drug that hides the inmate's pain that is at the core of this controversy. Although states are not compelled to abandon this paralytic and change from the three-drug protocol based on Kentucky's experience, part of the Court seemed to be saying that it would be wise for them to do so. Chief Justice Roberts said that the Court has relied on the states to find more humane methods of execution, even when they are not specifically compelled to do so.

Finally, Justice Stevens' conclusion that he now regards the death penalty itself as unconstitutional came as a revelation to many people. On the whole, the arguments and decision in Baze v. Rees were devoid of the larger questions that usually surround capital punishment. Justice Stevens forced the Court to consider whether death penalty itself had become detached from any discernible state purpose. If it is just the pointless extinguishing of human life, then it cannot be justified, no matter what the method being used. Judging by the many editorials that have been written since the decision last week, this issue may have struck a chord that is reverberating around the country. That challenge may be much harder for the Court to resolve."