553 U.S. 35 (2008), 07-5439, Baze v. Rees

Docket Nº:07-5439.
Citation:553 U.S. 35, 128 S.Ct. 1520
Party Name:Ralph BAZE and Thomas C. Bowling, Petitioners, v. John D. REES, Commissioner, Kentucky Department of Corrections, et al.
Attorney:Donald B. Verrilli, Jr., argued the cause for petitioners. With him on the briefs were David M. Barron, Ginger D. Anders, and John Anthony Palombi. Roy T. Englert, Jr., argued the cause for respondents. On the brief were Gregory D. Stumbo, Attorney General of Kentucky, David A. Smith, Assistant A...
Judge Panel:ROBERTS, C. J., announced the judgment of the Court and delivered an opinion, in which KENNEDY and AUTO, JJ., joined. ALITO, J., filed a concurring opinion, post, p. 63. STEVENS, J., filed an opinion concurring in the judgment, post, p. 71. Scalia, J., filed an opinion concurring in the judgment,...
Case Date:April 16, 2008
Court:United States Supreme Court

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553 U.S. 35 (2008)

128 S.Ct. 1520

Ralph BAZE and Thomas C. Bowling, Petitioners,


John D. REES, Commissioner, Kentucky Department of Corrections, et al.

No. 07-5439.

United States Supreme Court

April 16, 2008

Argued January 7, 2008.


[128 S.Ct. 1521] Syllabus

Lethal injection is used for capital punishment by the Federal Government [128 S.Ct. 1522] 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.


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. 47-63.

1. To constitute cruel and unusual punishment, an execution method must present a "substantial" or "objectively intolerable" risk of serious

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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. 47-52.

(a) This Court has upheld capital punishment as constitutional. See Gregg v. Georgia, 428 U.S. 153, 177, 96 S.Ct. 2909, 49 L.Ed.2d 859. 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. 47-48.

(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, 136, 25 L.Ed. 345, 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 [128 S.Ct. 1523] 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, 447, 10 S.Ct. 930, 34 L.Ed. 519. Pp. 48-49.

(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, 33, 34-35, 113 S.Ct. 2475, 125 L.Ed.2d 22. 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, 842, 846, and n. 9, 114 S.Ct. 1970, 128 L.Ed.2d 811. 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, 463-464, 67 S.Ct. 374, 91 L.Ed. 422, because such an event, while regrettable, does not suggest cruelty or a "substantial risk of serious harm." Pp. 49-50.

(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

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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. 51-52.

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. 53-61.

(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. 53-54.

(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 [128 S.Ct. 1524] 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. 54-56.

(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

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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...

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