Baze v. Rees
Q & A
4. What standard do petitioners in Baze argue should be adopted by the Court?
In upholding the State’s lethal injection protocol, the Kentucky Supreme Court ruled that “[t]he method of execution must not create a substantial risk of wanton or unnecessary infliction of pain, torture or lingering death,” and that the “prohibition against cruel and unusual punishment does not require a complete absence of pain.” Baze v. Rees, 217 S.W.3d 207, 211-12 (Ky. 2006). Petitioners argue that “[a] State . . . violates the Eighth Amendment when its execution procedures create a significant and unnecessary risk of inflicting severe pain that could be prevented by the adoption of reasonable safeguards.” Brief for Petitioners, at 28. They urge the Court to find that the Kentucky protocol “violates this bedrock Eighth Amendment requirement.” Id. Central to petitioners’ argument is evidence, developed in the lower courts, that: 1) if not properly anesthetized, an inmate “will suffer torturous pain and an agonizing death” when injected with pancuronium bromide and potassium chloride; 2) the inmate “will be unable to alert anyone to this suffering, and will appear serene and comfortable to the executioners and other observers while enduring an excruciating death”; 3) Kentucky’s procedures and use of unqualified personnel render inadequate anesthesia likely; and 4) “Kentucky could easily eliminate the risk of such suffering by foregoing the use of pancuronium and potassium, and relying instead on a lethal dose of an anesthetic . . .” Id.
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