Baze v. Rees

 

ISSUE OVERVIEW

 

Forseeable and Unnecessary Risk

Since the Supreme Court's decisions in Nelson v. Campbell (2004) and Hill v. McDonough (2006), civil rights lawsuits across the country have uncovered information about the administration of lethal injection and have highlighted the risks inherent in lethal injection procedures as currently practiced.  Litigation has revealed that most jurisdictions use the same three-drug formula, even though it is well known that the second and third drugs are extremely dangerous.  The use of the three-drug formula puts the inmate at risk of consciously experiencing paralysis, suffocation, and excruciating pain if he is not adequately anesthetized by the first drug. The cases also have shown that lethal injection executions frequently are performed by inadequately trained personnel who lack the skill necessary to carry out an execution in a manner that does not violate the Eighth Amendment's prohibition against “cruel and unusual punishment. The absence of trained, skilled personnel exacerbates the foreseeable, unnecessary, and preventable risks created by current lethal injection procedures. Indeed, the risks associated with the three-drug formula and its administration by untrained, unskilled personnel have been amply demonstrated in botched executions that have occurred across the country.

 

Baze presents the Court, first, with the question: What legal standard must be applied to lethal injection challenges in trial courts across the country?  Second, the Court has been asked to decide whether Kentucky's protocol for carrying out lethal injection violates the Eighth Amendment's ban on cruel and unusual punishment. The Court may answer the first question and remand the case to the lower courts to apply the legal standard to Kentucky's protocol, or it may address the constitutionality of Kentucky's protocol.

 

Baze does not attack lethal injection as a method of execution, nor does it challenge the death penalty as a punishment.  Rather, it challenges the constitutionality of the Kentucky's protocol for administering lethal injection and seeks to ensure that executions by lethal injection are carried out in a manner that complies with the requirements of the Eighth Amendment.  Moreover, Baze does not seek a permanent stay of the petitioners' executions. Rather, it seeks an injunction preventing the State from executing them pursuant to a protocol that creates an unnecessary risk of severe pain.  If petitioners prevail on the merits of their claim, the State would be permitted to carry out executions by replacing the current lethal injection procedure with one that satisfies the standard set by the Supreme Court.

 

Updated: September 3, 2009