In a widely splintered decision, the Supreme Court on Wednesday cleared the way for death-row executions to resume across the country, concluding that the most common method of lethal injection does not violate the Constitution. The final vote was 7-2 in Baze v. Rees (07-5439), although there was no opinion that spoke for five or more Justices. The Court’s plurality adopted as a standard for assessing the validity of an execution method whether it poses a “substantial risk of serious harm.” It rejected the death row inmate’s proposal that the standard be “unnecessary risk.”
While the opinion appeared to leave open a chance that some further challenges could be made to the use of lethal drugs under a specific procedure in another state, it rejected a challenge to the method as used in Kentucky which is fairly close to the protocol used in 36 states and by the federal government.
Chief Justice John G. Roberts, Jr.’s plurality opinion said that a death-row inmate cannot win a challenge to an execution protocol “merely by showing a slightly or marginally safe alternative.” Instead, there must be proof that the options available must prevent a “substantial risk of serious harm.” A state is free to choose a procedure, Roberts wrote, if it is shown to be “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” The opinion then added: “If a state refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a state’s refusal to change its method can be viewed as ‘cruel and unusual punishment’ under the Eighth Amendment.”