Oral argument: January 7, 2008.
Appealed from: Supreme Court of Kentucky (April 19, 2007).
LETHAL INJECTION, CRUEL AND UNUSUAL PUNISHMENT, EIGHTH AMENDMENT, DEATH PENALTY
Ralph Baze and Thomas K. Bowling brought a civil suit against the State of Kentucky in Franklin Circuit Court, claiming that the lethal injection procedure that the state uses creates an unnecessary risk of pain and suffering and is thus in violation of the Eighth Amendment. After denying the state's motion to dismiss, the trial judge found that the lethal injection procedure was not unconstitutional. The Supreme Court of Kentucky affirmed, holding that the U.S. Supreme Court has never required a completely painless execution. Baze and Bowling argue that Kentucky's lethal injection procedure violates the Eighth Amendment because it creates a "significant and unnecessary risk of pain," in addition to citing poor administrative measures and untrained personnel. Kentucky, however, argues that a method of execution only amounts to "cruel and unusual punishment" if it creates a "substantial risk" of unnecessary pain, and Kentucky's procedure does not meet that threshold. By granting certiorari in this case, the Supreme Court has seemingly imposed a "de facto moratorium" on lethal injections across the country. While the outcome of this case is unlikely to outlaw the death penalty on the whole, it may have a profound effect on the kinds of procedures that will be used to carry out future executions.
I. Does the Eighth Amendment to the United States Constitution prohibit means for carrying out a method of execution that create an unnecessary risk of pain and suffering as opposed to only a substantial risk of the wanton infliction of pain?
II. Do the means for carrying out an execution cause an unnecessary risk of pain and suffering in violation of the Eighth Amendment upon a showing that readily available alternatives that pose less risk of pain and suffering could be used?
III. Does the continued use of sodium thiopental, pancuronium bromide, and potassium chloride, individually or together, violate the cruel and unusual punishment clause of the Eighth Amendment because lethal injections can be carried out by using other chemicals that pose less risk of pain and suffering?
IV. When it is known that the effects of the chemicals could be reversed if the proper actions are taken, does substantive due process require a state to be prepared to maintain life in case a stay of execution is granted after the lethal injection chemicals are injected?
(The court will only consider questions I, II, and III).
Does the method of execution by lethal injection in Kentucky violate the Eighth Amendment prohibition on cruel and unusual punishment?
Despite the potentially far-reaching political and moral implications of this case, the relevant factual background is remarkably simple. In January of 1992, Ralph Baze shot and killed two police officers that were attempting to serve him with felony warrants. Baze v. Rees, 217 S.W.3d 207 (Ky. 2006) at 2. In April of 1990, Thomas K. Bowling shot and killed a husband and wife and wounded their two-year-old son after hitting their car with his car in a parking lot. Id. Both Baze and Bowling were convicted and are awaiting the death penalty, although neither has an imminent execution date. Id. Both exhausted all state and federal means for challenging their convictions and death sentences, and both have refused to select a method of execution, as they are entitled to do under Kentucky law. Id. Therefore, Kentucky will execute both using its default method - lethal injection. Id. at 6.
Kentucky's lethal injection process is as follows: If requested, a therapeutic dose of Diazepam, more commonly known as Valium, is administered in order to relieve anxiety, nervousness, and tension. Id. at 7. Within one hour of the administration of Valium, medical personnel insert needles into the arm, hand, leg or foot of the inmate. Id. at 8. The State then administers three grams of sodium thiopental, a "fast-acting barbiturate," rendering the inmate unconscious. Id. Then the administering physician injects fifty milligrams of pancuronium bromide, causing paralysis, which will stop muscular movement and breathing. Id. Finally, the State administers 240 milligrams of potassium chloride, causing cardiac arrest. Id. Once an electrocardiogram shows a lack of a heartbeat, a doctor and coroner verify the cause of death. Id.
On August 8, 2004, Baze and Bowling filed a civil action claiming that the chemicals used in Kentucky's lethal injection "create an unnecessary risk of pain and suffering." Petition for Certiorari at 3. They sought a declaratory judgment that the lethal injection, as used in Kentucky, violated their Eighth amendment rights to be free from cruel and unusual punishment. Rees, 214 S.W.3d 307, at 3. Their suits do not challenge their convictions or sentences, but merely the lethal injection procedure used in Kentucky and 35 other states.
The case went to trial after the court denied the state's motions to dismiss and for summary judgment. Petition for Certiorari at 3. The trial judge found Kentucky's lethal injection method constitutional, holding that Baze and Bowling had not shown by a preponderance of the evidence that the method of execution by lethal injection in Kentucky met the test established by the U.S. Supreme Court. Rees, 214 S.W.3d 207, at 3-5. However, the judge did find that "the procedure which attempts to insert an intravenous catheter into the neck through the carotid artery or jugular vein does create a substantial risk of wanton and unnecessary infliction of pain." Id. This part of Kentucky's lethal injection procedure has since been amended to comply with the decision. Id.
Baze and Bowling appealed to the Supreme Court of Kentucky. Id. The Kentucky Supreme Court limited itself to "deciding only whether the method defined by the Legislature and signed into law by the Executive, survives constitutional review," as it believed the moral, ethical and religious views on the death penalty had been hashed out in the legislature. Id. The Kentucky Supreme Court affirmed the decision of the trial court, finding that although the prisoner being executed may feel some pain, previous U.S. Supreme Court rulings do not require a completely painless execution. Id. at 8. The Kentucky Supreme Court cited several other state and federal court decisions that have rejected arguments that the lethal injection procedure used in Kentucky is in violation of the Eighth Amendment ban on cruel and unusual punishment. Id.
Baze and Bowling petitioned for a writ of certiorari to the United States Supreme Court, which the Court granted on September 25, 2007.
According to The New York Times, thirty-seven states use the lethal injection as means of carrying out the death penalty. See Linda Greenhouse, Justices to Enter the Debate over Lethal Injection, N.Y. Times, Sept. 25, 2007. Because of this widespread use, this case has attracted considerable attention - many organizations have filed amicus briefs because the Court might modify the permissible procedures for carrying out the lethal injection.
The individuals most obviously and significantly affected by this case are those currently on death row. Although the decision almost certainly will not affect the validity of those death sentences already imposed, it may affect the way in which the states carry out those sentences. See generally Petition for Certiorari. That is, the Court might require the states to employ lethal injection procedures that further reduce the risk of suffering to the inmate, thus having a direct impact on an inmate's final moments. See Id. at 9.
The medical community is closely watching this case: Three veterinarians, for instance, argue that Kentucky's current lethal injection method "would not meet the minimum standards for the humane euthanization of animals." Amicus Brief by Dr. Kevin Concannon et al. in Support of Baze and Bowlings at 3. The American Society of Anesthesiologists advised the Court that as a matter of medical ethics, physicians cannot participate in executions. Amicus Brief by American Society of Anesthesiologists in Support of Neither Party at 10. As such, any potential requirement by the Court that a physician be present to assess the consciousness of an inmate during an execution would present an "irreconcilable conundrum." Id. The Anesthesia Awareness Campaign has admonished the Court to consider that general anesthesia used during executions entails a significant risk of anesthesia awareness - a condition whereby the patient regains consciousness during a procedure but is unable to alert his caregivers. See Amicus Brief by Anesthesia Awareness Campaign in Support of Neither Party. Finally, another group of medical professionals insists that it is unethical to administer the drugs for aesthetic purposes. Amicus Brief by Critical Care Providers and Clinical Ethicists in Support of Baze and Bowlings at 13.
Regardless of how the Court rules, the States are already feeling the case's practical impact. Many commentators believe that the Court has imposed a "de facto moratorium" on lethal injections pending the outcome. See, e.g., Mark Essig, Op-Ed, This is Going to Hurt, N.Y. Times, Nov. 4, 2007. Indeed, the Court has recently stayed a number of executions, including the scheduled lethal injection of a Mississippi inmate in October. Id. According to The New York Times, these stays indicate that the Court intends to prevent executions until the Court makes its decision. Id. As such, lower courts have followed the Supreme Court's lead and have stayed executions until the Court hands down its decision. See Paul Flemming, Schwab Stay Marks Nationwide Halt to Executions, Tallahassee Democrat, Nov. 15, 2007. These stays, however, are likely to be lifted once the court rules, as the decision is likely only to affect the manner of execution, and not the efficacy of the death penalty sentences themselves. See Alex Kingsbury, The Court Puts Death on Hold, U.S. News and World Report, Nov. 3, 2007.
This case arises under the Eighth Amendment to the U.S. Constitution, which reads, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment be inflicted." Specifically, the Supreme Court will focus on the prohibition on cruel and usual punishment. The Supreme Court last considered the constitutionality of a method of execution in 1878 when it upheld the use of a firing squad in Wilkerson v. Utah, 99 U.S. 130 (1878). Although the Court has considered the death penalty in subsequent cases, the Court has not given much explicit guidance to lower courts regarding the appropriate standards to review Eighth Amendment challenges to specific methods of execution. In addition, the Court has not explicitly considered the Constitutionality of the lethal injection. As such, lower courts have applied a variety of different standards. See Brief for Petitioner at 12-21.
Baze and Bowling argue that Kentucky's three-drug lethal injection method violates the Eighth Amendment because it creates a "significant and unnecessary risk" of inflicting pain which is preventable through reasonable safeguards. See Brief for Petitioner, at 28. As such, Baze and Bowling urge the Supreme Court to interpret the Eighth Amendment as prohibiting execution procedures that involve an unnecessary risk of excruciating pain. Id. Baze and Bowling argue that the specific drug cocktail used, along with Kentucky's inadequate administrative procedures and untrained personnel, create this risk. Id. at 45-46.
In contrast, the State of Kentucky argues that a method of execution amounts to cruel and unusual punishment if it creates a "substantial risk" of unnecessary pain. See Brief of Respondent at 19. Applying this test, Kentucky argues it demonstrates that its three-drug lethal injection protocol does not create a substantial risk of unnecessary pain and that it employs sufficient safeguards to prevent unnecessary pain. See id. at 36.
The "Quest to Find a More Humane Means of Killing"
The evolution of the death penalty in the United States shows a definite trend toward finding a method of execution that causes the least amount of pain and suffering to the inmate. See Alex Kingsbury, The Court Puts Death on Hold, U.S. News and World Report, Nov. 3, 2007. Indeed, the Eighth Amendment implicitly requires it. See id. While hanging was the most widely used method of execution during the 19th Century, because it was thought that hanging produced an "unnecessarily painful and prolonged death," it eventually gave way to electrocution and lethal gas. See Brief for Petitioner at 2. However, as some electrocutions also produced horrific results - such as people catching on fire or bleeding - there was eventually increasing concern about the Constitutionality of that method as well. See Id. at 3. Today, only Nebraska relies on electrocution as its primary method of execution. Id. Lethal gas, also believed to be a more humane method than hanging or a firing squad, was also abandoned after inmates appeared to experience extreme pain and agony. See Id.
In an attempt to find a more humane method of execution, many states, including Kentucky, adopted a method of lethal injection that researchers in Oklahoma developed in 1977. See Id. at 4. According to Baze and Bowling, however, the group that devised the Oklahoma process did not consult with any other doctors to consider how to administer the drugs. Id. at 5. Nonetheless, the first execution using the Oklahoma protocol was performed in Texas in 1982. Id. Kentucky adopted lethal injection as its default method of execution in 1998. Id.
Currently, thirty-seven states allow the death penalty. Eighty-five percent of executions since 1986 have been completed via the lethal injection, while the remaining prisoners were put to death by electrocution (14 percent), gas chamber (1 percent), hanging (3 inmates) and firing squad (2 inmates). See Rob Hotakainen, Death-penalty Cases on Hold Pending Supreme Court Review, McClatchy Newspapers, Nov. 13, 2007. For decades, death penalty opponents have been raising concerns about the lethal injection similar to their earlier concerns about hanging, electrocution and lethal gas because of questions about whether an inmate can feel pain during the lethal injection process. See, e.g., id. According to Sue Gunawardena-Vaughn, director of Amnesty International USA's Program to Abolish the Death Penalty, problems with recent executions have "shattered the myth that lethal injection is a gentle process." Id. However, death penalty advocates believe differently. According to Roe Wilson, an assistant district attorney from Texas, the lethal injection is akin to having surgery - "if you've ever had that done, you know that one second you're aware and the next second the operation's over." Id.
The Supreme Court Has Rarely Discussed the Constitutionality of an Execution Method
The last case in which the Supreme Court considered the Constitutionality of a method of execution was Wilkerson v. Utah, 99 U.S. 130 (1878). There, Wilkerson was charged and convicted of murdering William Baxter in the Utah Territory. Id. at 130. During sentencing, the Judge issued the following order: "That . . . you be taken from your place of confinement to some place within this district, and that you there be publicly shot until you are dead." Id. at 130. On appeal to the Supreme Court, Wilkerson argued that death by firing squad amounts to cruel and unusual punishment as prohibited by the Eighth Amendment. Id. at 131-35. The Court, however, disagreed, holding that execution by firing squad for murder is not included in the category of cruel and unusual punishment. Id. at 135. The Court reasoned that soldiers convicted of deserting the army are often shot to death, and death by shooting is less cruel and unusual than other traditional common-law methods of execution, including public dissection, beheading, and burning the criminal alive. Id. at 135-36. The Court did not define the precise boundaries of the Eighth Amendment, but it opined that the Eighth Amendment forbids torture and unnecessarily cruel methods of execution as punishment. Id. at 136.
Although Wilkerson was the Supreme Court's last word on the Constitutionality of a specific method of execution, the Supreme Court has since addressed the death penalty generally. In 1972, for instance, the Supreme Court in Furman v. Georgia invalidated Georgia's death penalty statute, which was similar to that of many other states, because it could result in arbitrary sentencing. See, e.g., Furman v. Georgia, 408 U.S. 238, 248 n. 11 (1972) (plurality) (Stewart, J., concurring). But then, in Gregg v. Georgia, the Supreme Court upheld Georgia's revised death penalty statute. Gregg v. Georgia, 428 U.S. 153 (1976). In its holding, the Court noted that the Eighth Amendment's meaning is informed by "'evolving standards of decency'" and a state cannot impose a sentence which is "excessive." Id. at 173 (citation omitted). In determining whether the death penalty itself is excessive, the Court identified two factors: (1) whether the punishment involves "the unnecessary and wanton infliction of pain," and (2) whether the punishment is "grossly out of proportion to the severity of the crime." Id. at 173. Although the Supreme Court has further considered the Constitutionality of the death penalty itself as applied to specific situations, the Court has not provided more explicit guidance to lower courts. See, e.g., Roper v. Simmons, 543 U.S. 551 (2005) (death penalty cannot be applied to persons under age of 18). Thus, when inmates have recently challenged the Constitutionality of certain methods of execution, the lower courts have applied many different standards. Compare, e.g., Walker v. Johnson, 448 F.Supp.2d 719, 722 (E.D. Va. 2006) (whether there is an "objectively substantial risk of harm") with, e.g., Bieghler v. State, 839 N.E.2d 691, 696 (Ind. 2005) (whether there is "any unacceptable risk of a lingering death or the wanton infliction of pain").
Baze and Bowling: Kentucky's Lethal Injection Causes Unnecessary Pain and Suffering
Baze and Bowling argue that the Supreme Court should apply an "unnecessary risk of excruciating pain" test to their Eighth Amendment claim, grounding their argument in the Gregg case. See id. This is in conflict with the standard applied by the lower courts and promoted by the Kentucky, which would require the risk to be "substantial" before it is in violation of the Eighth Amendment. See id. Baze and Bowling argue that it is undisputed that an inmate will suffer agonizing pain during the lethal injection process prescribed by Kentucky law if the inmate is not properly anesthetized. See Brief for Petitioner at 28. They further argue that this risk would be easily eliminated with a different lethal injection procedure. Id. In addition to discussing the specific drugs and the procedure itself, Baze and Bowling also point out that personnel performing the execution do not have proper training are not stationed in the proper position to see if something is going wrong during the process. See id. at 29-30. While the courts below did not focus on these facts, Baze and Bowling argue that they are relevant and that that the correct question for the Supreme Court to ask in deciding this case is whether Kentucky's lethal injection procedure "produces torturous deaths in at least some cases." See id. at 30.
Kentucky: Procedure Does Not Create a Substantial Risk of Unnecessary Pain
The State of Kentucky argues that the Supreme Court should apply a "substantial risk" test to Baze and Bowling's Eighth Amendment claim. See Brief of Respondent at 19. Under that test, a method of execution amounts to cruel and unusual punishment if it creates a substantial risk of unnecessary pain. See id. By adopting this test, Kentucky argues, the Supreme Court will permit lower courts to dismiss claims of insubstantial pain, while still permitting claims based on more serious harm. See id. at 34. Applying this test to the facts of Baze and Bowling's case, Kentucky argues that the evidence it presented at trial "convincingly establishes" that its three-drug lethal injection protocol does not create a substantial risk of unnecessary pain. See id. at 36. Specifically, the drugs it uses for lethal injection are designed to make the patient unconscious once the drugs enter the blood stream. See id. at 37. The State also argues that it employs further safeguards to prevent unnecessary pain, including training programs for its staff and ongoing monitoring of the convict during the execution. See id. at 38-43.
Responding to Baze and Bowling, Kentucky argues that the inmates' proposed "unnecessary pain" test is too broad and would divert the state's resources away from development of less painful execution procedures. See id. at 34. Further, even under the "unnecessary pain" test, Kentucky contends that Baze and Bowling's argument that less painful alternatives exist is "factually incorrect." See id. at 23.
ACLU: Lack of Transparency Has Led to Unnecessary Risk of Pain and Suffering
The ACLU, which supports Baze and Bowling's claims, filed an amicus brief concentrating on the lack of transparency with respect to the lethal injection. See Amicus Brief by the American Civil Liberties Union, et. al. at 3. According to the ACLU, the shroud of secrecy surrounding lethal injections explains the lack of study or reflection that Kentucky has given to its lethal injection procedure. See id. at 3. This has led to a system that poses an unnecessary risk of excruciating pain. Id. Further, according to the ACLU, this makes the death penalty "the epitome of ill-considered, ill-balanced misgovernment completely at odds with civilized standards of decency and contemporary values." Id. at 29-30.
This case could represent the next chapter in the nation's quest to find a more humane means of killing. The Supreme Court last considered the constitutionality of a method of execution in 1878, when it upheld the use of a firing squad. Most recently, in the absence of explicit Supreme Court guidance, lower federal and state courts have struggled to develop a uniform constitutional test to apply to Eighth Amendment challenges to the lethal injection. Baze and Bowling argue that the Eighth Amendment prohibits methods of execution that create an "unnecessary" risk of pain and suffering. The State of Kentucky, on the other hand, contends that a method of execution violates the Eighth Amendment only if it creates a "substantial" risk of unnecessary pain and suffering. Although the decision in this case almost certainly will not affect the validity of those death sentences already imposed, it may affect the way in which the states carry out those sentences. Regardless of how the Court rules, the stakes are high and inmates, medical professionals, and concerned citizens alike are closely watching this case.
Edited by: Richard Beaulieu
The authors would like to thank Professor John Blume for his insights into this case.