Baze v. Rees

• Decision Date: 16 April 2008
• Docket Number: No. 07-5439.,07-5439.
• Parties: Ralph BAZE and Thomas C. Bowling, Petitioners, v. John D. REES, Commissioner, Kentucky Department of Corrections, et al.
• Court: U.S. Supreme Court

128 S.Ct. 1520

553 US 35

Ralph BAZE and Thomas C. Bowling, Petitioners, v. John D. REES, Commissioner, Kentucky Department of Corrections, et al.

No. 07-5439.

Supreme Court of United States.

Argued January 7, 2008.

Decided April 16, 2008.

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Donald B. Verrilli, Jr., for petitioners.

Roy T. Englert, Jr., for respondents.

Gregory G. Garre, for the United States as amicus curiae, by special leave of the Court, supporting the respondents.

Donald B. Verrilli, Jr., Matthew S. Hellman, Ginger D. Anders, Carrie F. Apfel, Jenner & Block LLP, Washington, DC, David M. Barron, Counsel of Record, John Anthony Palombi, Assistant Public Advocates, Kentucky Department of Public Advocacy, Frankfort, KY, for petitioners.

Jeffrey T. Middendorf, Counsel of Record, John C. Cummings, Justice & Public Safety Cabinet, Office of Legal Services, Frankfort, KY, Gregory D. Stumbo, Attorney General of Kentucky, David A. Smith, Assistant Attorney General Office of Criminal Appeals, Office of the Attorney General, Frankfort, KY, for Respondents.

Chief Justice ROBERTS announced the judgment of the Court and delivered an opinion, in which Justice KENNEDY and Justice ALITO join.

Like 35 other States and the Federal Government, Kentucky has chosen to impose capital punishment for certain crimes. As is true with respect to each of these States and the Federal Government, Kentucky has altered its method of execution over time to more humane means of carrying out the sentence. That progress has led to the use of lethal injection by every jurisdiction that imposes the death penalty.

Petitioners in this case—each convicted of double homicide—acknowledge that the lethal injection procedure, if applied as intended, will result in a humane death. They nevertheless contend that the lethal injection protocol is unconstitutional under the Eighth Amendment's ban on "cruel and unusual punishments," because of the risk that the protocol's terms might not be properly followed, resulting in significant pain. They propose an alternative protocol, one that they concede has not been adopted by any State and has never been tried.

The trial court held extensive hearings and entered detailed Findings of Fact and Conclusions of Law. It recognized that "there are no methods of legal execution that are satisfactory to those who oppose the death penalty on moral, religious, or societal grounds," but concluded that Kentucky's procedure "complies with the constitutional requirements against cruel and unusual punishment." App. 769. The State Supreme Court affirmed. We too agree that 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. The judgment below is affirmed.

I

A

By the middle of the 19th century, "hanging was the `nearly universal form of execution' in the United States." Campbell v. Wood, 511 U.S. 1119, 114 S.Ct. 2125, 128 L.Ed.2d 682 (1994) (Blackmun, J., dissenting from denial of certiorari) (quoting State v. Frampton, 95 Wash.2d 469, 492, 627 P.2d 922, 934 (1981)); Denno, Getting to Death: Are Executions Constitutional? 82 Iowa L.Rev. 319, 364 (1997) (counting 48 States and Territories that employed hanging as a method of execution). In 1888, following the recommendation of a commission empaneled by the Governor to find "`the most humane and practical method known to modern science of carrying into effect the sentence of death,'" New York became the first State to authorize electrocution as a form of capital punishment. Glass v. Louisiana, 471 U.S. 1080, 1082, and n. 4, 105 S.Ct. 2159, 85 L.Ed.2d 514 (1985) (Brennan, J., dissenting from denial of certiorari); Denno, supra, at 373. By 1915, 11 other States had followed suit, motivated by the "well-grounded belief that electrocution is less painful and more humane than hanging." Malloy v. South Carolina, 237 U.S. 180, 185, 35 S.Ct. 507, 59 L.Ed. 905 (1915).

Electrocution remained the predominant mode of execution for nearly a century, although several methods, including hanging, firing squad, and lethal gas were in use at one time. Brief for Fordham University School of Law et al. as Amici Curiae 5-9 (hereinafter Fordham Brief). Following the 9-year hiatus in executions that ended with our decision in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), however, state legislatures began responding to public calls to reexamine electrocution as a means of assuring a humane death. See S. Banner, The Death Penalty: An American History 192-193, 296-297 (2002). In 1977, legislators in Oklahoma, after consulting with the head of the anesthesiology department at the University of Oklahoma College of Medicine, introduced the first bill proposing lethal injection as the State's method of execution. See Brief for Petitioners 4; Fordham Brief 21-22. A total of 36 States have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the most prevalent method of execution in the United States.¹ It is also the method used by the Federal Government. See 18 U.S.C. § 3591 et seq. (2000 ed. and Supp. V); App. to Brief for United States as Amicus Curiae 1a-6a (lethal injection protocol used by the Federal Bureau of Prisons).

Of these 36 States, at least 30 (including Kentucky) use the same combination of three drugs in their lethal injection protocols. See Workman v. Bredesen, 486 F.3d 896, 902 (C.A.6 2007). The first drug, sodium thiopental (also known as Pentathol), is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. App. 762-763, 631-632. The second drug, pancuronium bromide (also known as Pavulon), is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. Id., at 763. Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. Ibid. The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs. Id., at 493-494, 541, 558-559.

B

Kentucky replaced electrocution with lethal injection in 1998. 1998 Ky. Acts ch. 220, p. 777. The Kentucky statute does not specify the drugs or categories of drugs to be used during an execution, instead mandating that "every death sentence shall be executed by continuous intravenous injection of a substance or combination of substances sufficient to cause death." Ky.Rev.Stat. Ann. § 431.220(1)(a) (West 2006). Prisoners sentenced before 1998 have the option of electing either electrocution or lethal injection, but lethal injection is the default if—as is the case with petitioners—the prisoner refuses to make a choice at least 20 days before the scheduled execution. § 431.220(1)(b). If a court invalidates Kentucky's lethal injection method, Kentucky law provides that the method of execution will revert to electrocution. § 431.223.

Shortly after the adoption of lethal injection, officials working for the Kentucky Department of Corrections set about developing a written protocol to comply with the requirements of § 431.220(1)(a). Kentucky's protocol called for the injection of 2 grams of sodium thiopental, 50 milli-grams of pancuronium bromide, and 240 milliequivalents of potassium chloride. In 2004, as a result of this litigation, the department chose to increase the amount of sodium thiopental from 2 grams to 3 grams. App. 762-763, 768. Between injections, members of the execution team flush the intravenous (IV) lines with 25 milligrams of saline to prevent clogging of the lines by precipitates that may form when residual sodium thiopental comes into contact with pancuronium bromide. Id., at 761, 763-764. The protocol reserves responsibility for inserting the IV catheters to qualified personnel having at least one year of professional experience. Id., at 984. Currently, Kentucky uses a certified phlebotomist and an emergency medical technician (EMT) to perform the venipunctures necessary for the catheters. Id., at 761-762. They have up to one hour to establish both primary and secondary peripheral intravenous sites in the arm, hand, leg, or foot of the inmate. Id., at 975-976. Other personnel are responsible for mixing the solutions containing the three drugs and loading them into syringes. Id., at 761.

Kentucky's execution facilities consist of the execution chamber, a control room separated by a one-way window, and a witness room. Id., at 203. The warden and deputy warden remain in the execution chamber with the prisoner, who is strapped to a gurney. The execution team administers the drugs remotely from the control room through five feet of IV tubing. Id., at 286. If, as determined by the warden and deputy warden through visual inspection, the prisoner is not unconscious within 60 seconds following the delivery of the sodium thiopental to the primary IV site, a new 3-gram dose of thiopental is administered to the secondary site before injecting the pancuronium and potassium chloride. Id., at 978-979. In addition to assuring that the first dose of thiopental is successfully administered, the warden and deputy warden also watch for any problems with the IV catheters and tubing.

A physician is present to assist in any effort to revive the prisoner in the event of a last-minute stay of execution. Id., at 764. By statute, however, the physician is prohibited from participating in the "conduct of an execution," except to certify the cause of death. Ky.Rev.Stat. Ann. § 431.220(3). An electrocardiogram (EKG) verifies the death of the prisoner. App. 764. Only one...