Baze v. Rees
Q & A
2. Why did the U.S. Supreme Court agree to review Baze v. Rees and Bowling v. Rees?
When the Supreme Court grants certiorari, it does not announce a reason for its decision to review a case. At least four justices must vote to grant review. Given the questions that the Court asked the parties to brief, it is reasonably likely that at least four justices were troubled that the lack of a clearly articulated standard for evaluating lethal injection challenges has resulted in significantly different standards being applied in the dozens of challenges that have been brought.
Previous Supreme Court opinions, Hill v. McDonough, 126 S.Ct. 2096 (2006) and Nelson v. Campbell, 541 U.S. 637 (2004), held that challenges to lethal injection protocols could be filed as civil actions under 42 U.S.C. Section 1983. However, the Court did not announce the Eighth Amendment standard that would be applied in determining whether a particular lethal injection protocol violates the federal constitutional prohibition against cruel and unusual punishment.
Section 1983 lawsuits, challenging lethal injection protocols, have been filed in more than a dozen states and in the federal system. Courts across the country have set different standards based upon differing interpretations of what the Eighth Amendment requires to establish that a method of execution is “cruel and unusual.” In his dissenting opinion in Alley v. Little, 447 F.3d 976, 977 (2006), Judge Martin criticized “[t]he dysfunctional patchwork of stays and executions going on in this country.” He argued that there is “no principled distinction” to justify a system in which “condemned inmates are bringing nearly identical challenges to the legal injection procedure” and some executions are stayed, while others are carried out. Id. It is therefore appropriate for the Supreme Court to state the constitutional standard.
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