Tuesday, 25 September 2007

cert grant Baze v. Rees

It is correct. Argument set for Jan 7, 2008.

Questions presented are:

Although the Court has authorized civil actions
challenging portions of a method of execution, it has
not addressed the constitutionality of a method of
execution or the legal standard for determining
whether a method of execution violates the Eighth
Amendment in over 100 years--leaving lower courts with
no guidance on the law to apply to the many lethal
injection challenges filed since the Court's rulings
allowing the claim in a civil action. Lower courts
have been left to look to cursory language in the
Court's opinions dealing with the the death penalty on
its face and prison conditions. As a result, the law
applied by lower courts is a haphazard flux ranging
from requiring "wanton infliction of pain," "excessive
pain," "unnecessary pain," "substantial risk",
"unnecessary risk," "substantial risk of wanton and
unnecessary pain," and numerous other ways of
describing when a method of execution is cruel and

Considering that at least half the death row inmates
facing an imminent execution in the last two years
have filed suit challenging the chemicals used in
lethal injections, certiorari petitions and stay
motions on the issue are arriving before the Court so
often that this issue is one of the most common
issues. Thus, it is important for the Court to
determine the appropriate legal standard, particularly
because the difference between the standards being
used is the difference between prevailing and not.

This case presents the Court with the clearest
opportunity to provide guidance to the lower courts on
the applicable legal standard for method of execution
cases. This case arrives at the Court without the
constraints of an impending execution and with a fully
developed record stemming from a 20-witness trial.
The record contains undisputed evidence that any and
all of the current lethal injection chemicals could be
replaced with other chemicals that would pose less
risk of pain while causing death than the tri-chemical
cocktail currently used. Although this automatically
makes the risk of pain associated with the use of
sodium thiopental, pancuronium bromide, and potassium
chloride unnecessary, relief was denied on the basis
that a "substantial risk of wanton and unnecessary
pain" had not been established. This squarely places
the issue of whether "unnecessary risk" is part of the
cruel and unusual punishment equation and whether an
"unnecessary risk" exists upon a showing that readily
available alternatives are known.

The Kentucky Supreme Court's decision gives rise to
the following important questions:

I. Does the Eighth Amendment to the United States
Constitution prohibit means for carrying out a method
of execution that create an unnecessary risk of pain
and suffering as opposed to only a substantial risk of
the wanton infliction of pain?

II. Do the means for carrying out an execution cause
an unnecessary risk of pain and suffering in violation
of the Eighth Amendment upon a showing that readily
available alternatives that pose less risk of pain and
suffering could be used?

III. Does the continued use of sodium thiopental,
pancuronium bromide, and potassium chloride,
individually or together, violate the cruel and
unusual punishment clause of the Eighth Amendment
because lethal injections can be carried out by using
other chemicals that pose less risk of pain and

IV. When it is known that the effects of the chemicals
could be reversed if the proper actions are taken,
does substantive due process require a state to be
prepared to maintain life in case a stay of execution
is granted after the lethal injection chemicals are

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