Sunday, 27 April 2008

Lethal injections resuming in Florida

Lethal injections resuming in Florida

Megan McArdle, over at Asymmetrical Information blog at the Atlantic, has a fantastic new piece on Florida’s governor and his quest to restart lethal injection:

I heard something that sounded very odd on the radio yesterday: news that Florida’s governor had expressed his “gratitude” that lethal injection was once again legal, and his intention of getting a death warrant out there as quickly as possible.

I oppose the death penalty, for somewhat idiosyncratic reasons. Some of those reasons are well captured by the passage in The Plague where Tarrou talks about his father.

Megan’s piece is a reflection is on a NPR “All Things Considered” piece entitled “Opponents Challenge Death Penalty in Florida.

Florida still risks botched executions

A Times Editorial

Florida still risks botched executions

Published Friday, April 25, 2008 7:17 PM

Florida is about to rev up its death chamber again. The U.S. Supreme Court has given the go-ahead to states like Florida to continue using a three-drug cocktail for lethal injections, and the state's attorney general and governor have wasted no time in calling for the resumption of executions. But just because Florida's procedure has been deemed constitutional doesn't mean it is sufficiently humane. The potential for error and an excruciating death remains.

Florida's executions have been on hold while the Supreme Court decided a Kentucky case challenging the use of a three-drug lethal cocktail used by at least 30 death penalty states. The danger of these drugs became clear after Florida's execution of Angel Diaz in December 2006. Due to mishandled injections, Diaz had chemicals injected into his soft tissue rather than into his veins. His execution took 34 minutes, twice as long as usual, and it is quite possible that he suffered severely.

Florida uses a lethal injection protocol that state veterinarians have rejected for euthanizing pets, since the risk of severe pain is considered too high. In the protocol, a strong barbiturate sedative, sodium pentathol, is administered first to render the inmate unconscious and pain-free. The second and third drugs then cause paralysis and cardiac arrest. If the sedation drug is not administered properly, these latter drugs can manifest serious levels of pain on the order of feeling that one's flesh is on fire and slow asphyxiation. But the inmate will be unable to communicate his suffering due to the paralytic effects of the pancuronium bromide, the second drug.

It is possible to induce death without the pancuronium bromide, but the Department of Corrections has stubbornly stuck with its old drug protocols. The department has refused to budge even after being urged by a study commission appointed by then-Gov. Jeb Bush to consider other "more recently developed" chemicals for use in executions and to reconsider the use of any paralytic drug in order to make executions "less problematic."

A botched execution might be too remote to rise to the level of a constitutional concern for our current Supreme Court, but it happened here and could happen again.

Since the Diaz execution, the Department of Corrections has largely implemented the suggestions of the governor's commission and revamped its execution protocols to build in more safeguards. The execution team warden, for example, must determine that the inmate is fully unconscious before the pain-causing drugs are administered. And more training and experience is required of those carrying out the execution, although a medical doctor's direct participation is still not required.

Even so, the continued use of the paralyzing agent means that the state is not doing everything it can to ensure that the death penalty is carried out as humanely as possible. It wouldn't take much to eliminate this drug from the mix, and it remains puzzling why the state refuses to take this modest step.

Saturday, 19 April 2008

Rulings on death penalty

Reasons to abolish

I am disheartened that the U.S. Supreme Court has decided not to tackle the method used in executions. (Please see "COUNTY GEARS UP FOR EXECUTIONS / High court: Backs Kentucky's lethal injection," Page One, Thursday.) This three-drug protocol was developed by an Oklahoma pharmacist in the 1970s, and it stands even when the veterinarian association abandoned it for a more humane method using only an overdose of anesthetic. Doctors said there were indications of low blood levels of anesthetic and that some were most likely partly conscious through it.

The rest of the Western world, and in fact much of the world, has abandoned the death penalty. But in Texas in 2007 we carried out our 400th execution, a number four times higher than the next closest state, Virginia, at 98, even though there are 17 states with higher murder rates. Its cost to Texas taxpayers per capital case is enormous at $2.3 mill-ion. Multiply that by 400, and it's a huge expense for tax-payers when there is the alter-native of life without parole.

The death penalty is about public safety and justice, and it fails at justice with problems such as inadequate defense, prosecutorial misconduct and racial bias. It is unfairly meted out based on race, whether one is indigent and which state one is in.

Polls have shown that the majority of the public believes that there is no deterrent effect from the death penalty, and 95 percent believe that innocent people have been executed. The death of one innocent is too many. When one looks at cost and what populations the death penalty is used for and how justice is administered, one sees the reason for abolition.


Deborah Denno on the Baze Ruling

Deborah Denno on the Baze Ruling

Fordham Law prof Deborah Denno, the leading scholar examining lethal injection issues, has this reaction to the Baze ruling:

Baze v. Rees is a splintered plurality decision in which the Supreme Court puts forth an Eighth Amendment standard that an execution method must constitute a "substantial" or "objectively intolerable" risk of serious harm before it can be rendered a violation of the Eighth Amendment. While the Court affirmed the constitutionality of Kentucky's lethal injection procedure, the evidence available in Kentucky was limited due to constraints on discovery and the fact that the state has conducted only one prior lethal injection execution. Other states have far more information available concerning the problems with their particular procedures. There is a door open for future litigation on the constitutionality of lethal injection and I imagine that death penalty attorneys are already starting to prepare their future challenges.

Denno's "The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty," is noted in this post.

The opinion in Baze v. Rees is here. The lethal injection index is here.


No. 07-7348



CHRISTOPHER EPPS, Commissioner of the
Mississippi Department of Corrections,
LAWRENCE KELLY, Superintendent of
the Mississippi State Penitentiary at Parchman,
and JOHN DOES 1-50,

Petitioner, Earl Wesley Berry, filed his Petition for Writ of Certiorari on October 29,
2007. This Court stayed Berry's imminent execution on October 30, 2007.


CASE NO. 07-10275




COMES NOW the State of Florida, and moves this Court to vacate
the stay of execution entered in this case on November 15, 2007. As
grounds for vacating that stay, the State submits the following:

1. On November 9, 2007, Schwab filed a motion for a stay of
his November 15, 2007, execution “pending the filing and
disposition of a petition for a writ of certiorari, or in the
alternative, pending the outcome of Baze v. Rees, 2008 WL 1733259
(U.S. Apr. 16, 2008).”
2. On November 15, 2007, this Court entered a stay “pending
the timely filing and disposition of a petition for a writ of
certiorari,” thus permitting Schwab the normal 90 day period within
which to file his petition, which was due on February 5, 2008.
3. On January 24, 2008, Schwab filed a motion for an extension

of time for filing his petition for writ of certiorari so he could

address issues raised during the Baze oral argument, argued January

7, 2008. Implicit in that motion was the notion that Baze would

control the disposition of Schwab’s case.

4. This Court granted an extension of time for filing his
petition for writ of certiorari until April 5, 2008. The petition

was filed within the time allowed by the extension.

5. Schwab has at all times taken the position that this
Court’s decision in Baze will dictate the result in his case. That

decision has been issued. Under Baze, Schwab has no likelihood of

success on his constitutional claim, which is foreclosed by Baze,

which, of course, is binding precedent.

6. As this Court held in Baze:
A stay of execution may not be granted on grounds such as
those asserted here unless the condemned prisoner
establishes that the State’s lethal injection protocol
creates a demonstrated risk of severe pain. He must show
that the risk is substantial when compared to the known
and available alternatives. A State with a lethal
injection protocol substantially similar to the protocol
we uphold today would not create a risk that meets this

Baze v. Rees, ms. op., at 22. Schwab, just as Baze, cannot make

that showing. Further, as this Court held:

Kentucky has adopted a method of execution believed to be
the most humane available, one it shares with 35 other
States. Petitioners agree that, if administered as
intended, that procedure will result in a painless death.

The risks of maladministration they have suggested — such
as improper mixing of chemicals and improper setting of
IVs by trained and experienced personnel — cannot


remotely be characterized as “objectively intolerable.”
Id., at 23. (emphasis added). Thus, any ancillary matters arguably
at issue in Schwab’s case are disposed of by Baze, as well.

7. Each delay in execution of a sentence of death is, for its
duration, a commutation of that sentence to one of life in prison.
See, Thompson v. Wainwright, 714 F.2d 1495, 1506 (11th Cir. 1983).
Schwab has delayed his execution since November 2007, based upon
the premise that the Baze decision would help his case. That result
did not come to pass, and, as Justice Rehnquist wrote, as Circuit
There must come a time, even when so irreversible a
penalty as that of death has been imposed upon a
particular defendant, when the legal issues in the case
have been sufficiently litigated and relitigated that the
law must be allowed to run its course.

Evans v. Bennett, 440 U.S. 1301, 1303 (1979). That time has come in
this case.

WHEREFORE, based on the foregoing, the State submits that the
stay of execution entered on November 15, 2007, should be vacated
because, in light of Baze, there is nothing to justify its
continuation as evidenced by the accompanying State's response to
Schwab's petition for writ of certiorari.

Respectfully submitted,

Senior Assistant Attorney General


Florida Bar #998818
444 Seabreeze Blvd., 5th Floor
Daytona Beach, FL 32118

(386) 238-4990
FAX (386) 226-0457

I HEREBY CERTIFY that a true and correct copy of the above has
been furnished by e-mail and U.S. Mail to: Mark S. Gruber, gruber, Assistant CCRC - Middle, 3801 Corporex Park Dr.,
Suite 210, Tampa, Florida 33619-1136, on this day of April,

Of Counsel


Justice Stevens Renounces Capital Punishment

Washington Supreme Court Memo

Justice Stevens Renounces Capital Punishment

Published: April 18, 2008

WASHINGTON — When Justice John Paul Stevens intervened in a Supreme Court argument on Wednesday to score a few points off the lawyer who was defending the death penalty for the rape of a child, the courtroom audience saw a master strategist at work, fully in command of the flow of the argument and the smallest details of the case. For those accustomed to watching Justice Stevens, it was a familiar sight.

Skip to next paragraph
J. Scott Applewhite/Associated Press

Justice John Paul Stevens, who in 1976 announced an opinion allowing resumption of the death penalty.


Times Topics: Capital Punishment

Times Topics: John Paul Stevens

Key Opinions

Jurek v. Texas (1976)

Rose v. Lundy (1982, dissenting)

Texas v. Johnson (1989, dissenting)

Atkins v. Virginia (2002)

Rasul v. Bush (2004)

Hamdan v. Rumsfeld (2006)

Uttecht v. Brown (2007, dissenting)

Baze v. Rees (2008)

But there was something different that no one in the room knew except the eight other justices. In the decision issued 30 minutes earlier in which the court found Kentucky’s method of execution by lethal injection constitutional, John Paul Stevens, in the 33rd year of his Supreme Court tenure and four days shy of his 88th birthday, had just renounced the death penalty.

In an opinion concurring with the majority’s judgment, Justice Stevens said he felt bound to “respect precedents that remain a part of our law.” But outside the confines of the Kentucky case, he said, the time had come to reconsider “the justification for the death penalty itself.”

He wrote that court decisions and actions taken by states to justify the death penalty were “the product of habit and inattention rather than an acceptable deliberative process” to weigh the costs and risks of the penalty against its benefits.

His opinion, which was not separately announced in the courtroom, was the culmination of a remarkable journey for a Republican antitrust lawyer.

During his tenure, Justice Stevens, originally an opponent of affirmative action, has changed his views on that and other issues. “Learning on the job is essential to the process of judging,” he observed in a speech in 2005.

But it is on the death penalty that his evolution is most apparent. He was named to the Supreme Court by President Gerald R. Ford at a time when ferment over capital punishment was at a peak. Less than four years earlier, the court had invalidated every death penalty statute in the country, and states were racing to draft laws that would test the court’s tolerance for a fresh start.

In July 1976, little more than six months after taking his seat, Justice Stevens announced the opinion for the court in Jurek v. Texas, one of the three cases by which the justices gave their approval to a new generation of death penalty statutes. The defendant, Jerry Lane Jurek, had been convicted of kidnapping a 10-year-old girl from a public swimming pool and then raping and killing her.

The new justice’s opinion described the crime in vivid detail before concluding that Mr. Jurek’s death sentence was constitutional because “Texas has provided a means to promote the evenhanded, rational and consistent imposition of death sentences under law.”

During the child rape argument on Wednesday, it was the lawyer for Louisiana who was giving the vivid description of the crime, recounting in grisly anatomic detail the injuries inflicted on an 8-year-old girl by her stepfather, the convicted rapist challenging the state’s death penalty law. As justices and the courtroom audience cringed, the air seemed to leave the room, along with any points the defendant’s lawyer had managed to make in his initial turn at the lectern.

Justice Stevens had remained silent during that first half of the argument, but now he pounced. “Could you clarify?” he began, interrupting the state’s lawyer, Juliet L. Clark. “Were those injuries permanent?”

He knew the answer, of course: the record of the case indicated that the girl’s physical injuries had healed in two weeks. His point was to bring the anatomy lesson to an end and refocus the argument on the legal issues. If it was also to throw the state’s lawyer off stride, he succeeded in that as well. Ms. Clark, reluctantly conceding that the injuries had healed, shifted to her legal arguments. Justice Stevens’s mild expression and tone never changed.

His renunciation of capital punishment in the lethal injection case, Baze v. Rees, was likewise low key and undramatic. While reminiscent of Justice Harry A. Blackmun’s similar step, shortly before his retirement in 1994, Justice Stevens’s opinion lacked the ringing declaration of Justice Blackmun’s “From this day forward, I no longer shall tinker with the machinery of death.” Justice Stevens’s strongest statements were not in his own voice, but in quotations from a former colleague, Justice Byron R. White, an early death penalty opponent.

But Justice Stevens was not so restrained last June in an opinion dissenting from a decision that in retrospect appears to have been, for him, the final straw. In that case, Uttecht v. Brown, a 5-to-4 majority gave state courts great leeway in death penalty trials to remove jurors who express even mild doubt about capital punishment.

“Millions of Americans oppose the death penalty” and yet can serve as conscientious jurors, Justice Stevens objected then, adding that the majority “has gotten it horribly backwards” in enabling prosecutors to weed them out.

In his opinion on Wednesday, Justice Stevens said the Uttecht decision was “of special concern to me,” and used it to explain his journey from Jurek v. Texas to Baze v. Rees. Those who voted to uphold the death penalty in 1976, he said, “relied heavily on our belief that adequate procedures were in place” to treat death penalty cases with special care so as to minimize bias and error.

“Ironically, however,” he continued, “more recent cases have endorsed procedures that provide less protections to capital defendants than to ordinary offenders.”

In other words, capital punishment had become for him, in the court’s hands, a promise of fairness unfulfilled.

One of the court’s most frequent dissenters throughout his tenure, Justice Stevens, an optimist at heart, does not look back on every loss with such a sense of stinging disappointment. In 1989, he dissented vigorously from the court’s decision in Texas v. Johnson that flag-burning is a form of expression protected by the First Amendment. While he still believes he was right, he told a Chicago audience of lawyers in 2006, he sees a silver lining: flag-burning has all but disappeared.

“What once was a courageous act of defiant expression,” he said, “is now perfectly lawful, and therefore is not worth the effort.”

A Supreme Court ruling shouldn't end the debate on the methods or morals of lethal injection.

A Less Cruel Punishment

A Supreme Court ruling shouldn't end the debate on the methods or morals of lethal injection.

THE SUPREME Court has spoken: The current method of injection to execute inmates does not constitute cruel and unusual punishment. But this declaration, delivered in a splintered, 97-page opinion Wednesday, should not end the public debate about capital punishment -- nor about whether states, as long as executions continue, should consider alternatives that may be more humane and reliable and less likely to impose unnecessary pain.

The case revolved around the three-drug process used in Kentucky and the 34 other states that administer lethal injection. First, a general anesthetic is injected intravenously to render the inmate unconscious; if administered correctly, this drug should prevent the inmate from feeling pain. A second drug paralyzes the inmate; this drug is meant to preserve the dignity of the process -- for the inmate and those present -- by preventing muscle spasms that sometimes accompany death. The third drug stops the heart and causes severe burning sensations. The most significant problem with this protocol is that because the second drug paralyzes the inmate and prevents him from reacting, there is no way to know whether he feels pain from the third and lethal drug.

Those challenging the three-drug method of execution argued that human error and poor monitoring procedures increased the chances that the process would produce "unnecessary risk of pain and suffering" and violate the Eighth Amendment's prohibition of cruel and unusual punishment.

Chief Justice John G. Roberts Jr., in the case's main opinion, concluded that "efforts to implement capital punishment must certainly comply with the Eighth Amendment, but what that Amendment prohibits is wanton exposure to 'objectively intolerable risk,' not simply the possibility of pain." The chief justice and six others concluded that there was no evidence in the record that Kentucky's administration of lethal injection created significantly increased risk.

The record does, however, show that other states take more precautions than does Kentucky. Those administering lethal injections in Florida, for example, pause for a few minutes after injecting the anesthetic to test whether the inmate is unconscious and unable to feel pain before they inject the paralyzing drug.

In our view, states should not be in the business of killing anyone. But as long as they are, all states should adopt such precautions. And they should consider eliminating the second and third drugs, instead relying on an overdose of the barbiturate anesthetic to bring as painless a death as possible.

Chief Justice Roberts suggested that such a discussion in the political arena would be healthy and natural: "[O]ur approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment."

States plan to resume executions

Updated 1d 22h ago | Comments16 | Recommend1 E-mail | Save | Print | Reprints & Permissions | Subscribe to stories like this
Fla. Attorney General Bill McCollum
By Wilfredo Lee, AP


Total number of death-row inmates, followed by number added since fall moratorium.

California 669 4
Florida 388 11
Texas 357 5
Pennsylvania 228 1
Alabama 201 4

Source: Death Penalty Information Center and USA TODAY research

States plan to resume executions
Florida officials on Wednesday started the process of reopening that state's death chamber, shuttered for more than six months as part of a national moratorium on executions.

Hours after the U.S. Supreme Court rejected a challenge to lethal injection in a Kentucky case, Florida Attorney General Bill McCollum filed papers asking the high court to lift a stay of execution that spared the life of convicted child killer Mark Dean Schwab.

The U.S. Supreme Court issued the stay late last year while justices considered the Kentucky case. McCollum and officials in other states say the court's validation of lethal injection allows the 36 states that permit capital punishment to begin setting new execution dates.

Kentucky Attorney General Jack Conway is reviewing the state's 38 death row cases, including the two that initiated the Supreme Court challenge in Baze v. Rees. "As soon as we've determined that all the remedies are exhausted and it's appropriate to seek the death warrants, we will do so," he says.

In Alabama, where there are 201 inmates on death row, lethal injections could resume in about a month at the earliest, says Clay Crenshaw, chief of the state's capital litigation division.

"We're pleased," Crenshaw says. "Executions will resume very shortly. … We'll take every step to ensure that will happen."

Virginia Gov. Tim Kaine, who imposed an execution moratorium this month pending the Supreme Court's ruling, lifted the ban Wednesday. The state's next execution is set for May 27, pending further appeals. Kevin Green, convicted in a 1998 murder of a store clerk, is scheduled to die by lethal injection.

California officials are mired in a separate legal challenge over how lethal injection is carried out in that state. The Supreme Court's decision could help restart executions that have been stalled since June 2006.

California Department of Corrections spokesman Seth Unger says new execution protocols the state submitted to a federal judge last year meet the standards the Supreme Court outlined in its ruling. A status conference in that case is scheduled in U.S. District Court in June.

The Supreme Court decision "is another step toward us carrying out the will of the people in California," Unger says.

Death penalty opponents expressed disappointment, saying the court did not address the broader issues of fairness and the precision with which the death penalty is carried out.

"Our challenge as a nation is not to make it easier to execute people, or make more people eligible for the death penalty, but to do everything possible to make our criminal justice system more fair and accurate," says Barry Scheck, co-director of The Innocence Project, which seeks to free innocent people from prison.

Contributing: Jessie Halladay and Stephenie Steitzer, The (Louisville) Courier-Journal

In a reversal, Justice Stevens calls the death penalty 'anachronistic'

In a reversal, Justice Stevens calls the death penalty 'anachronistic'

Part of the Supreme Court majority that reinstated capital punishment in the U.S. in 1976, he says it no longer serves any purpose.
By James Oliphant, Chicago Tribune
April 17, 2008
WASHINGTON -- The nation's longest-serving Supreme Court justice, John Paul Stevens, on Wednesday declared his formal opposition to capital punishment.

Stevens, 87, was part of the court majority that reinstated the death penalty in America in 1976. But in a concurring opinion to Wednesday's ruling that Kentucky's use of lethal injection is constitutional, Stevens wrote that the death penalty no longer served a legitimate social function. He is the first justice to openly oppose capital punishment since Harry Blackmun in 1994.

His words came as some comfort to death penalty opponents on a day when they suffered a setback at the hands of the justices. Within hours of the 7-2 ruling, Virginia and Florida announced their intention to lift a moratorium on executions, and several other states were expected to follow suit. In California, executions could begin again by the end of the year.

But Elisabeth Semel, a law professor and director of the Death Penalty Clinic at UC Berkeley who helped bring the challenge to Kentucky's lethal-injection procedures, said the court's opinion made it clear that states can be forced to institute alternative lethal-injection procedures if they can be proven to alleviate a substantial risk of severe pain to the inmate.

That may have been one reason that Stevens, in a sense, threw up his hands and said "enough" even as he concurred with the majority in the Kentucky case. Stevens wrote that when the court agreed to hear the Kentucky challenge, he "assumed that our decision would bring the debate about lethal injection as a method of execution to a close. It now seems clear that it will not."

Then he went further, saying the death penalty was no longer meeting any of the societal aims the court laid out when it reinstated the sanction in 1976 after a four-year pause. "State-sanctioned killing," he said, is becoming "more and more anachronistic."

The Chicago native, who was named to the court by President Ford in 1975, wrote that modern, lengthy prison sentences had achieved the goal of preventing the offender from committing further crimes and said that researchers had yet to prove to his satisfaction that the death penalty deterred others from committing crimes.

That left retribution as the sole rationale for capital punishment, and there Stevens found a paradox. Noting that the court is now working to make executions as painless as possible, he wrote: "By requiring that an execution be relatively painless, we necessarily protect the inmate from enduring any punishment that is comparable to the suffering inflicted on his victim."

Justice Antonin Scalia wrote a special concurrence to criticize Stevens, saying that his reversal on the issue was "astounding" and that he was substituting his own views for those of state legislatures elected by the people.

"It is Justice Stevens' experience that reigns over all," he wrote mockingly.

Notwithstanding Stevens' stance, states were gearing up to put a pair of killers to death. Florida officials said that the high court's decision paved the way for the execution of Mark Dean Schwab, convicted of raping and killing an 11-year-old boy in 1991.

And in Virginia, Gov. Tim Kaine cleared the way for the execution of Edward Bell, who killed a police officer in 1999. His execution was scheduled for April 8, but Kaine had postponed it until July in advance of the Supreme Court ruling.

The Supreme Court Brings Back the Death Penalty

The Supreme Court Brings Back the Death Penalty

By Liliana Segura, AlterNet. Posted April 17, 2008.

With a 7-2 ruling ending a moratorium on state-sanctioned killing, states across the country are gearing up to resume executions.

The Supreme Court just made a decision that will send prisoners across the country to their deaths.

In a 7 to 2 ruling, it upheld lethal injection as currently carried out as Constitutional, ending a de-facto moratorium on state-sanctioned murder.

Executions in the United States had been on hold since last September, when the Court decided to take on the case of Baze v. Rees. At stake was the question of whether Kentucky's lethal injection protocol violates the 8th Amendment prohibition of "cruel and unusual punishment." The three-drug killing technique or some version of it -- a paralytic, a barbiturate, and a dose of potassium chloride -- is used in 35 out of 36 death penalty states. (Nebraska, whose sole method of execution used to be electrocution, ruled the electric chair unconstitutional this past February.) As states froze their execution machinery to await the justices' ruling, not a single execution was carried out for seven months. Last-minute stays of execution aside, it was a glimpse into what the United States might look like without the death penalty.

Baze represented a critical development in death penalty litigation, the first time the Court has considered a specific method of execution since it upheld the firing squad in 1878. Ever since the Supreme Court's last-minute intervention in the case of Florida death row prisoner Clarence Hill -- he was strapped onto a gurney with intravenous lines in his arms -- in January 2006, the stage had been set for a showdown on lethal injection. When the Court ruled later that year that prisoners could appeal their death sentences based on the possibility that lethal injection is cruel and unusual, a wave of appeals swept the country.

Now, those prisoners have lost significant legal footing and with it, very possibly, the right to live. "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," explained Lyle Denniston at SCOTUSblog, "...The opinion also appeared to mean that the three drugs now used in all of those jurisdictions do not, alone or in combination, fail the Court's new standard."

In other words, the country's preferred execution method is now insulated by a legal precedent.

This is a serious blow to death penalty opponents who hoped that disabling the death machinery would lead to abolishing it. It is also, in many ways, the result of a frustrating failure of legal strategy. The attorneys who argued Baze did so on very narrow grounds, contending that Kentucky's lethal injection protocol is broken, but not beyond repair. "One needs a person trained in monitoring anesthetic death to participate in the process," defense attorney Donald Verrilli suggested, not only encouraging the controversial notion that medical professionals have a role in carrying out executions, but also encouraging the Court to treat botched executions as an aberration; freak accidents that rarely occur. "The Court has held that an isolated mishap alone does not violate the Eighth Amendment," wrote Chief Justice John Roberts in the decision. But states from California to Florida have had lethal injections go horribly wrong in recent years; with states often secretive about their execution procedures -- and many not keeping data on file about them -- how "isolated" these incidents are is largely unknown.

Lethal injection is often described as a "three-drug cocktail." The first drug is the barbiturate sodium thiopental; the second, a paralytic called pancuronium bromide, and the third, potassium chloride, which stops the heart. The technique has been favored by death penalty supporters who find appeal in its medical veneer. In theory, if the drugs are administered correctly, the victim will die quickly and painlessly. But in reality, executioners, contrary to the assumption of many, usually have little or no medical training. If they wrongly administer the first drug, the result can be grisly.

Take the case of Joseph A. Clark, a death row prisoner in Ohio. On the day of his execution in May 2006, it took the execution team 22 minutes to find a vein -- a not uncommon problem. Shortly after the catheter was finally inserted, Clark's vein collapsed and his arm began to swell, at which point, he lifted his head. "He said 'It don't work, it don't work, it don't work, it ain't working,' about five times," one witness later described. At that point, the gurney was concealed by curtains. Thirty minutes later, there was "moaning, crying out and guttural noises." An hour and a half after the start of the execution, Clark was dead.

Then there are instances where the paralytic drug can make it impossible to tell if something has gone wrong. Since a paralyzed prisoner cannot cry out or move if in pain, clues that he or she suffered only come with the autopsy. In the case of Florida prisoner Angel Diaz in December 2006, he started to move following the first drug, "squinting and grimacing as he tried to mouth words," according to the Death Penalty Information Center. "A second dose was then administered, and 34 minutes passed before Mr. Diaz was declared dead. At first a spokesperson for the Florida Department of Corrections claimed that this was because Mr. Diaz had some sort of liver disease. After performing an autopsy, the Medical Examiner, Dr. William Hamilton, stated that Mr. Diaz's liver was undamaged, but that the needle had gone through Mr. Diaz's vein and out the other side, so the deadly chemicals were injected into soft tissue, rather than the vein." Angel Diaz was quite literally tortured to death.

The cruel irony is that the paralyzing agent is totally pointless; serving no purpose aside from masking the effects of the lethal chemicals on a prisoner's body. In fact, veterinarians long ago decided not to use it for the that very reason. But death row prisoners, despite being human beings, do not inspire the humane treatment that animals do -- and twisted logic is offered to keep the paralyzing drug in place. "The purpose it serves," argued Roy Englert, the attorney representing Kentucky before the Court, "is the purpose of dignifying the process for the benefit of the inmate and for the benefit of the witnesses." In reality, it is used to "dignify the process" for the benefit of the state. It makes murder look a little less murderous.

For legal experts, the Baze decision is not a major surprise and in fact, contains some interesting language about the future of death penalty litigation. ''I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself,'' wrote Justice Stevens. The variety of opinions expressed by the justices -- a "plurality" in legal terms -- in the rather glib interpretation of one expert blogger, "provides a little something for everyone." Unfortunately, for prisoners granted a temporary reprieve by the seven-month-long de facto moratorium, what the decision provides is death.

As they have since the return of the American death penalty in 1976, defense attorneys will find new legal arguments to try to spare their clients' lives. But how many prisoners will die before another opportunity arrives like the one presented by Baze? How many of them are on death row because they are poor or black? How many of them are innocent?

As Marlene Martin, executive director of the Campaign to End the Death Penalty says, "I think of people like Troy Davis, Rodney Reed and Timothy McKinney -- all on death row, all African American, all poor and almost all surely innocent. What does this decision mean for them and the countless others like them?" As executions resume in a country with more than 3,000 people on death row -- whose names are unknown to the vast majority of Americans -- it is a question not enough people are willing to ask.

Wednesday, 16 April 2008

JUSTICE STEVENS, concurring in the judgment.

Cite as: 553 U. S. ____ (2008)
STEVENS, J., concurring in judgment
No. 07–5439


[April 16, 2008]

JUSTICE STEVENS, concurring in the judgment.
When we granted certiorari in this case, I assumed thatour decision would bring the debate about lethal injection
as a method of execution to a close. It now seems clear
that it will not. The question whether a similar three-
drug protocol may be used in other States remains open,
and may well be answered differently in a future case onthe basis of a more complete record. Instead of ending the
controversy, I am now convinced that this case will generate
debate not only about the constitutionality of thethree-drug protocol, and specifically about the justification
for the use of the paralytic agent, pancuronium bromide,
but also about the justification for the death penalty itself.
Because it masks any outward sign of distress, pancuronium
bromide creates a risk that the inmate will
suffer excruciating pain before death occurs. There is a
general understanding among veterinarians that the risk
of pain is sufficiently serious that the use of the drugshould be proscribed when an animal’s life is being termi

STEVENS, J., concurring in judgment
nated.1 As a result of this understanding among knowledgeable
professionals, several States—including Ken-
tucky—have enacted legislation prohibiting use of the
drug in animal euthanasia. See 2 Ky. Admin. Regs., tit.
201, ch. 16:090, §5(1) (2004).2 It is unseemly—to say the
1The 2000 Report of the American Veterinary Medical Association(AVMA) Panel on Euthanasia stated that a “combination of pentobarbital
with a neuromuscular blocking agent is not an acceptable euthanasia
agent.” 218 J. Am. Veterinary Med. Assn. 669, 680 (2001). In a
2006 supplemental statement, however, the AVMA clarified that thisstatement was intended as a recommendation against mixing a barbiturate
and neuromuscular blocking agent in the same syringe, sincesuch practice creates the possibility that the paralytic will take effectbefore the barbiturate, rendering the animal paralyzed while stillconscious. The 2007 AVMA Guidelines on Euthanasia plainly state
that the application of a barbiturate, paralyzing agent, and potassiumchloride delivered in separate syringes or stages is not discussed in the
report. Several veterinarians, however, have filed an amici brief in this
case arguing that the three-drug cocktail fails to measure up to veterinary
standards and that the use of pancuronium bromide should be
prohibited. See Brief for Dr. Kevin Concannon et al. as amici curiae
16–18. The Humane Society has also declared “inhumane” the use of“any combination of sodium pentobarbital with a neuromuscular
blocking agent.” R. Rhoades, The Humane Society of the United States,
Euthanasia Training Manual 133 (2002); see also Alper, Anesthetizing
the Public Conscience: Lethal Injection and Animal Euthanasia, 35Fordham Urb. L. J. ___, ___ (forthcoming 2008), online at (all Internet
materials as visited Apr. 10, 2008, and available in Clerk of Court’scase file) (concluding, based on a comprehensive study of animal
euthanasia laws and regulations that “the field of animal euthanasiahas reached a unanimous consensus . . . that neuromuscular blocking
agents like pancuronium have no legitimate place in the execution
2See also, e.g., Fla. Stat. §828.058(3) (2006) (“[A]ny substance which
acts as a neuromuscular blocking agent . . . may not be used on a dog orcat for any purpose”); N. J. Stat. Ann. §4:22–19.3 (West 1998) (“Whenever
any dog, cat, or any other domestic animal is to be destroyed, theuse of succinylcholine chloride, curare, curariform drugs, or any other
substance which acts as a neuromuscular blocking agent is prohibited”);
N. Y. Agric. & Mkts. Law Ann. §374(2–b) (West 2004) (“No

Cite as: 553 U. S. ____ (2008)
STEVENS, J., concurring in judgment
least—that Kentucky may well kill petitioners using a
drug that it would not permit to be used on their pets.
Use of pancuronium bromide is particularly disturbing
because—as the trial court specifically found in this case—
it serves “no therapeutic purpose.” App. 763. The drug’sprimary use is to prevent involuntary muscle movements,
and its secondary use is to stop respiration. In my view,
neither of these purposes is sufficient to justify the risk
inherent in the use of the drug.
The plurality believes that preventing involuntary
movement is a legitimate justification for using pancuronium
bromide because “[t]he Commonwealth has aninterest in preserving the dignity of the procedure, especially
where convulsions or seizures could be misperceived
as signs of consciousness or distress.” Ante, at 19. This is
a woefully inadequate justification. Whatever minimal
interest there may be in ensuring that a condemned inmate
dies a dignified death, and that witnesses to the
execution are not made uncomfortable by an incorrect
belief (which could easily be corrected) that the inmate is
in pain, is vastly outweighed by the risk that the inmate isactually experiencing excruciating pain that no one can
detect.3 Nor is there any necessity for pancuronium bro

person shall euthanize any dog or cat with T–61, curare, any curariform
drug, any neuro-muscular blocking agent or any other paralyzingdrug”); Tenn. Code Ann. §44–17–303(c) (2007) (“Succinylcholine chloride,
curare, curariform mixtures . . . or any substance that acts as aneuromuscular blocking agent . . . may not be used on any non-livestockanimal for the purpose of euthanasia”). According to a recent study,
not a single State sanctions the use of a paralytic agent in the administration
of animal euthanasia, 9 States explicitly ban the use of suchdrugs, 13 others ban it by implication—i.e., by mandating the use of
nonparalytic drugs, 12 arguably ban it by reference to the AVMA
guidelines, and 8 others express a strong preference for use of nonparalytic
drugs. Anesthetizing the Public Conscience, supra, at ____, and
3Indeed, the decision by prison administrators to use the drug on

STEVENS, J., concurring in judgment
mide to be included in the cocktail to inhibit respiration
when it is immediately followed by potassium chloride,
which causes death quickly by stopping the inmate’sheart.
Moreover, there is no nationwide endorsement of the
use of pancuronium bromide that merits any special presumption
of respect. While state legislatures have approved
lethal injection as a humane method of execution,
the majority have not enacted legislation specificallyapproving the use of pancuronium bromide, or any given
combination of drugs.4 And when the Colorado Legisla

humans for aesthetic reasons is not supported by any consensus of
medical professionals. To the contrary, the medical community hasconsidered—and rejected—this aesthetic rationale for administeringneuromuscular blocking agents in end-of-life care for terminally illpatients whose families may be disturbed by involuntary movementsthat are misperceived as signs of pain or discomfort. As explained in an
amici curiae brief submitted by critical care providers and clinicalethicists, the medical and medical ethics communities have rejected
this rationale because there is a danger that such drugs will mask signs
that the patient is actually in pain. See Brief for Critical Care Providers
et al. as amici curiae.
4Of the 35 state statutes providing for execution by lethal injection,
only approximately one-third specifically approve the use of a chemicalparalytic agent. See Ark. Code Ann. §5–4–617 (2006); Idaho Code §19–
2716 (Lexis 2004); Ill. Comp. Stat., ch. 725, §5/119–5 (West 2006); Md.
Crim. Law Code Ann. §2–303 (Lexis Supp. 2007); Miss. Code Ann. §99–
19–51 (2007); Mont. Code Ann. §46–19–103 (2007); N. H. Rev. Stat.
Ann. §630:5 (2007); N. M. Stat. Ann. §31–14–11 (2000); N. C. Gen. Stat.
Ann. §15–187 (Lexis 2007); Okla. Stat., Tit. 22, §1014 (West 2001); Ore.
Rev. Stat. §137.473 (2003); Pa. Stat. Ann., Tit. 61, §3004 (Purdon 1999);
Wyo. Stat. Ann. §7–13–904 (2007). Twenty of the remaining States do
not specify any particular drugs. See Ariz. Rev. Stat. Ann. §13–704(West 2001); Cal. Penal Code Ann. §3604 (West 2000); Conn. Gen. Stat.
§54–100 (2007); Del. Code Ann., Tit. 11, §4209 (2006 Supp.); Fla. Stat.
§922.105 (2006); Ga. Code Ann. §17–10–38 (2004); Ind. Code §35–38–6–
1 (West 2004); Kan. Stat. Ann. §22–4001 (2006 Cum. Supp.); Ky. Rev.
Stat. Ann. §431.220 (West 2006); La. Stat. Ann. §15:569 (West 2005);
Mo. Rev. Stat. §546.720 (2007 Cum. Supp.); Nev. Rev. Stat. §176.355(2007); Ohio Rev. Code Ann. §2949.22 (Lexis 2006); S. C. Code Ann.

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STEVENS, J., concurring in judgment
ture focused on the issue, it specified a one-drug protocol
consisting solely of sodium thiopental. See Colo. Rev. Stat.
Ann. §18–1.3–1202 (2007).5 In the majority of States thatuse the three-drug protocol, the drugs were selected byunelected Department of Correction officials with no specialized
medical knowledge and without the benefit ofexpert assistance or guidance. As such, their drug selections
are not entitled to the kind of deference afforded
legislative decisions.
Nor should the failure of other state legislatures, or ofCongress, to outlaw the use of the drug on condemnedprisoners be viewed as a nationwide endorsement of anunnecessarily dangerous practice. Even in those States
where the legislature specifically approved the use of a
paralytic agent, review of the decisions that led to theadoption of the three-drug protocol has persuaded me that
they are the product of “‘administrative convenience’” and
a “stereotyped reaction” to an issue, rather than a careful
analysis of relevant considerations favoring or disfavoring
a conclusion. See Mathews v. Lucas, 427 U. S. 495, 519,
520–521 (1976) (STEVENS, J., dissenting). Indeed, the trial
court found that “the various States simply fell in line”
behind Oklahoma, adopting the protocol without any
critical analysis of whether it was the best available alter

§24–3–530 (2007); S. D. Codified Laws §23A–27A–32 (Supp. 2007);
Tenn. Code Ann. §40–23–114 (2006); Tex. Code Crim. Proc. Ann., Art.

43.14 (Vernon 2006 Supp. Pamphlet); Utah Code Ann. §77–18–5.5(Lexis Supp. 2007); Va. Code Ann. §53.1–234 (Lexis Supp. 2007); Wash.
Rev. Code §10.95.180 (2006).
5Colorado’s statute provides for “a continuous intravenous injectionof a lethal quantity of sodium thiopental or other equally or more
effective substance sufficient to cause death.” §18–1.3–1202. Despite
the fact that the statute specifies only sodium thiopental, it appears
that Colorado uses the same three drugs as other States. See Denno,
The Lethal Injection Quandary: How Medicine Has Dismantled the
Death Penalty, 76 Ford. L. Rev. 49, 97, and n. 322 (2007).

STEVENS, J., concurring in judgment
native.6 App. 756; see also post, at 5 (GINSBURG, J.,
New Jersey’s experience with the creation of a lethalinjection protocol is illustrative. When New Jersey restored
the death penalty in 1983, its legislature “fell inline” and enacted a statute that called for inmates to be
executed by “continuous, intravenous administration until
the person is dead of a lethal quantity of an ultrashort-
acting barbiturate in combination with a chemical paralytic
agent in a quantity sufficient to cause death.” N. J.
Stat. Ann. §2C:49–2 (West 2005). New Jersey Department
of Corrections (DOC) officials, including doctors and administrators,
immediately expressed concern. The Capital
Sentencing Unit’s chief doctor, for example, warned the
Assistant Commissioner that he had “‘concerns . . . in
regard to the chemical substance classes from which the
lethal substances may be selected.’” Edwards, New Jersey’s
Long Waltz With Death, 170 N. J. L. J. 657, 673(2002).7 Based on these concerns, the former DOC Commissioner
lobbied the legislature to amend the lethal
injection statute to provide DOC with discretion to selectmore humane drugs: “‘[We wanted] a generic statement,
like “drugs to be determined and identified by the commis

6Notably, the Oklahoma medical examiner who devised the protocolhas disavowed the use of pancuronium bromide. When asked in a
recent interview why he included it in his formula, he responded: “‘It’s
a good question. If I were doing it now, I would probably eliminate it.’ ”
E. Cohen, Lethal injection creator: Maybe it’s time to changethe formula,
7Officials of the DOC had before them an advisory paper submittedby a group of New York doctors recommending sodium thiopental“ ‘without the addition of other drugs,’ ” and the supervisor of the
Health Services Unit was informed in a memo from a colleague thatpancuronium bromide “ ‘will cause paralysis of the vocal chords and
stop breathing, and hence could cause death by asphyxiation.’ ” Edwards,
170 N. J. L. J., at 673.

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STEVENS, J., concurring in judgment
sioner, or the attorney general, or the Department of
Health”’. . . . ‘Who knew what the future was going to
bring?’” Ibid. And these concerns likely motivated theDOC’s decision to adopt a protocol that omitted pancuronium
bromide—despite the legislature’s failure to act
on the proposed amendment. See Denno, When Legislatures
Delegate Death: The Troubling Paradox Behind
State Uses of Electrocution and Lethal Injection and WhatIt Says About Us, 63 Ohio St. L. J. 63, 117–118, 233 (2002)
(explaining that the New Jersey protocol in effect in 2002called for use of a two-drug cocktail consisting of sodium
thiopental and potassium chloride).
Indeed, DOC officials seemed to harbor the same concerns
when they undertook to revise New Jersey’s lethal
injection protocol in 2005. At a public hearing on the
proposed amendment, the DOC Supervisor of Legal and
Legislative Affairs told attendees that the drugs to be usedin the lethal injection protocol were undetermined:
“Those substances have not been determined at this
point because when and if an execution is scheduled
the [DOC] will be doing research and determining the
state-of-the-art drugs at that point in time . . . . We
have not made a decision on which specific drugs because
we will have several months once we know that
somebody is going to be executed and it will give usthe opportunity at that point to decide which would be
the most humane.
“And things change. We understand that the stateof-
the-art is changing daily so to say we are going to
use something today when something may be more
humane becomes known later wouldn’t make sense for
us.” Tr. of Public Hearing on Proposed Amendments
to the New Jersey Lethal Injection Protocol 36 (Feb. 4,
It is striking that when this state agency—with some

STEVENS, J., concurring in judgment
specialized medical knowledge and with the benefit ofsome expert assistance and guidance—focused on theissue, it disagreed with the legislature’s “stereotypedreaction,” Mathews, 427 U. S., at 520, 521 (STEVENS, J.,
dissenting), and specified a two-drug protocol that omitted
pancuronium bromide.8
In my view, therefore, States wishing to decrease therisk that future litigation will delay executions or invalidate
their protocols would do well to reconsider their
continued use of pancuronium bromide.9
The thoughtful opinions written by THE CHIEF JUSTICE
and by JUSTICE GINSBURG have persuaded me that current
decisions by state legislatures, by the Congress of the
United States, and by this Court to retain the death penalty
as a part of our law are the product of habit and
inattention rather than an acceptable deliberative processthat weighs the costs and risks of administering that
penalty against its identifiable benefits, and rest in parton a faulty assumption about the retributive force of the
death penalty.
8Further, concerns about this issue may have played a role in NewJersey’s subsequent decisions to create a New Jersey Death PenaltyStudy Commission in 2006, and ultimately to abolish the death penaltyin 2007.
9For similar reasons, States may also be well advised to reconsider
the sufficiency of their procedures for checking the inmate’s consciousness.
See, post, at 5–10 (GINSBURG, J., dissenting).
JUSTICE ALITO correctly points out that the Royal Dutch Society forthe Advancement of Pharmacy recommends pancuronium bromide “as
the second of the two drugs to be used in cases of euthanasia.” Ante, at
7 (concurring opinion). In the Netherlands, however, physicians withtraining in anesthesiology are involved in assisted suicide. For reasons
JUSTICE ALITO details, see ante, at 2–4, physicians have no similar role
in American executions. When trained medical personnel administer
anesthesia and monitor the individual’s anesthetic depth, the serious
risks that concern me are not presented.

Cite as: 553 U. S. ____ (2008)
STEVENS, J., concurring in judgment
In Gregg v. Georgia, 428 U. S. 153 (1976), we explainedthat unless a criminal sanction serves a legitimate penological
function, it constitutes “gratuitous infliction of
suffering” in violation of the Eighth Amendment. We then
identified three societal purposes for death as a sanction:
incapacitation, deterrence, and retribution. See id., at
183, and n. 28 (joint opinion of Stewart, Powell, and
STEVENS, JJ.). In the past three decades, however, each of
these rationales has been called into question.
While incapacitation may have been a legitimate rationale
in 1976, the recent rise in statutes providing for
life imprisonment without the possibility of parole demonstrates
that incapacitation is neither a necessary nor asufficient justification for the death penalty.10 Moreover, a
recent poll indicates that support for the death penaltydrops significantly when life without the possibility ofparole is presented as an alternative option.11 And the
available sociological evidence suggests that juries are less
likely to impose the death penalty when life without parole
is available as a sentence.12
10Forty-eight States now have some form of life imprisonment without
parole, with the majority of statutes enacted within the last two
decades. See Note, A Matter of Life and Death: The Effect of LifeWithout-
Parole Statutes on Capital Punishment, 119 Harv. L. Rev.
1838, 1839, 1841–1844 (2006).
11See R. Dieter, Sentencing For Life: Americans Embrace Alternatives
to the Death Penalty (Apr. 1993), http://www.deathpenaltyinfo.
12In one study, potential capital jurors in Virginia stated that knowing
about the existence of statutes providing for life without the possibility
of parole would significantly influence their sentencing decision.
In another study, a significant majority of potential capital jurors in
Georgia said they would be more likely to select a life sentence over a
death sentence if they knew that the defendant would be ineligible forparole for at least 25 years. See Note, 119 Harv. L. Rev., at 1845.
Indeed, this insight drove our decision in Simmons v. South Carolina,
512 U. S. 154 (1994), that capital defendants have a due process rightto require that their sentencing juries be informed of their ineligibility

STEVENS, J., concurring in judgment
The legitimacy of deterrence as an acceptable justification
for the death penalty is also questionable, at best.
Despite 30 years of empirical research in the area, there
remains no reliable statistical evidence that capital punishment
in fact deters potential offenders.13 In the absence
of such evidence, deterrence cannot serve as a sufficient
penological justification for this uniquely severe and
irrevocable punishment.
We are left, then, with retribution as the primary rationale
for imposing the death penalty. And indeed, it is
the retribution rationale that animates much of the remaining
enthusiasm for the death penalty.14 As Lord
Justice Denning argued in 1950, “‘some crimes are sooutrageous that society insists on adequate punishment,
because the wrong-doer deserves it, irrespective of
whether it is a deterrent or not.’” See Gregg, 428 U. S., at
184, n. 30. Our Eighth Amendment jurisprudence hasnarrowed the class of offenders eligible for the death pen

for parole.
13Admittedly, there has been a recent surge in scholarship assertingthe deterrent effect of the death penalty, see, e.g., Mocan & Gittings,
Getting Off Death Row: Commuted Sentences and the Deterrent Effectof Capital Punishment, 46 J. Law & Econ. 453 (2003); Adler & Summers,
Capital Punishment Works, Wall Street Journal, Nov. 2, 2007,
p. A13, but there has been an equal, if not greater, amount of scholarship
criticizing the methodologies of those studies and questioning the
results, see, e.g., Fagan, Death and Deterrence Redux: Science, Law
and Causal Reasoning on Capital Punishment, 4 Ohio St. J. Crim. L.
255 (2006); Donohue & Wolfers, Uses and Abuses of Empirical Evidencein the Death Penalty Debate, 58 Stan. L. Rev. 791 (2005).
14Retribution is the most common basis of support for the death penalty.
A recent study found that 37% of death penalty supporters cited
“an eye for an eye/they took a life/fits the crime” as their reason for
supporting capital punishment. Another 13% cited “They deserve it.”
The next most common reasons—“sav[ing] taxpayers money/costassociated with prison” and deterrence—were each cited by 11% of
supporters. See Dept. of Justice, Bureau of Justice Statistics, Source-
book of Criminal Justice Statistics 147 (2003) (Table 2.55), online at

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STEVENS, J., concurring in judgment
alty to include only those who have committed outrageouscrimes defined by specific aggravating factors. It is the
cruel treatment of victims that provides the most persuasive
arguments for prosecutors seeking the death penalty.
A natural response to such heinous crimes is a thirst for
At the same time, however, as the thoughtful opinions
pellucidly clear, our society has moved away from publicand painful retribution towards ever more humane formsof punishment. State-sanctioned killing is therefore becoming
more and more anachronistic. In an attempt tobring executions in line with our evolving standards of
decency, we have adopted increasingly less painful methods
of execution, and then declared previous methodsbarbaric and archaic. But by requiring that an execution
be relatively painless, we necessarily protect the inmatefrom enduring any punishment that is comparable to thesuffering inflicted on his victim.16 This trend, while appropriate
and required by the Eighth Amendment’s prohibition
on cruel and unusual punishment, actually under

15For example, family members of victims of the Oklahoma Citybombing called for the Government to “ ‘put [Timothy McVeigh] inside a
bomb and blow it up.’ ” Walsh, One Arraigned, Two Undergo Questioning,
Washington Post, Apr. 22, 1995, pp. A1, A13. Commentators at the
time noted that an overwhelming percentage of Americans felt thatexecuting McVeigh was not enough. Linder, A Political Verdict:
McVeigh: When Death Is Not Enough, L. A. Times, June 8, 1997, p. M1.
16For example, one survivor of the Oklahoma City bombing expressed
a belief that “ ‘death by [lethal] injection [was] “too good” for McVeigh.’ ”
A. Sarat, When the State kills: Capital Punishment and the AmericanCondition 64 (2001). Similarly, one mother, when told that her child’skiller would die by lethal injection, asked: “Do they feel anything? Do
they hurt? Is there any pain? Very humane compared to what they’ve
done to our children. The torture they’ve put our kids through. I think
sometimes it’s too easy. They ought to feel something. If it’s fire
burning all the way through their body or whatever. There ought to besome little sense of pain to it.” Id., at 60 (emphasis deleted).

STEVENS, J., concurring in judgment
mines the very premise on which public approval of the
retribution rationale is based. See, e.g., Kaufman-Osborn,
Regulating Death: Capital Punishment and the LateLiberal State, 111 Yale L. J. 681, 704 (2001) (explaining
that there is “a tension between our desire to realize the
claims of retribution by killing those who kill, and . . . a
method [of execution] that, because it seems to do no harmother than killing, cannot satisfy the intuitive sense of
equivalence that informs this conception of justice”); A.
Sarat, When the State Kills: Capital Punishment and the
American Condition 60–84 (2001).
Full recognition of the diminishing force of the principalrationales for retaining the death penalty should lead thisCourt and legislatures to reexamine the question recently
posed by Professor Salinas, a former Texas prosecutor and
judge: “Is it time to Kill the Death Penalty?” See Salinas,
34 Am. J. Crim. L. 39 (2006). The time for a dispassionate,
impartial comparison of the enormous costs that
death penalty litigation imposes on society with the benefits
that it produces has surely arrived.17
17For a discussion of the financial costs as well as some of the less
tangible costs of the death penalty, see Kozinski & Gallagher, Death:
The Ultimate Run-On Sentence, 46 Case W. Res. L. Rev. 1 (1995)
(discussing, inter alia, the burden on the courts and the lack of finality
for victim’s families). Although a lack of finality in death cases mayseem counterintuitive, Kozinski and Gallagher explain:
“Death cases raise many more issues, and far more complex issues,
than other criminal cases, and they are attacked with more gusto and
reviewed with more vigor in the courts. This means there is a strongpossibility that the conviction or sentence will be reconsidered—
seriously reconsidered—five, ten, twenty years after the trial. . . . One
has to wonder and worry about the effect this has on the families of thevictims, who have to live with the possibility—and often the reality—ofretrials, evidentiary hearings, and last-minute stays of execution fordecades after the crime.” Id., at 17–18 (footnotes omitted).
Thus, they conclude that “we are left in limbo, with machinery that isimmensely expensive, that chokes our legal institutions so they areimpeded from doing all the other things a society expects from its

Cite as: 553 U. S. ____ (2008)
STEVENS, J., concurring in judgment
“[A] penalty may be cruel and unusual because it is
excessive and serves no valid legislative purpose.”
Furman v. Georgia, 408 U. S. 238, 331 (1972) (Marshall,
J., concurring); see also id., at 332 (“The entire thrust ofthe Eighth Amendment is, in short, against ‘that which is
excessive’”). Our cases holding that certain sanctions are
“excessive,” and therefore prohibited by the EighthAmendment, have relied heavily on “objective criteria,”
such as legislative enactments. See, e.g., Solem v. Helm,
463 U. S. 277, 292 (1983); Harmelin v. Michigan, 501 U. S.
957 (1991); United States v. Bajakajian, 524 U. S. 321
(1998). In our recent decision in Atkins v. Virginia, 536
U. S. 304 (2002), holding that death is an excessive sanction
for a mentally retarded defendant, we also relied
heavily on opinions written by Justice White holding that
the death penalty is an excessive punishment for thecrime of raping a 16-year-old woman, Coker v. Georgia,
courts, [and] that visits repeated trauma on victims’ families . . . .” Id.,
at 27–28; see also Block, A Slow Death, N. Y. Times, Mar. 15, 2007,

p. A27 (discussing the “enormous costs and burdens to the judicial
system” resulting from the death penalty).
Some argue that these costs are the consequence of judicial insistence
on unnecessarily elaborate and lengthy appellate procedures. To the
contrary, they result “in large part from the States’ failure to applyconstitutionally sufficient procedures at the time of initial [convictionor] sentencing.” Knight v. Florida, 528 U. S. 990, 998 (1999) (BREYER,
J., dissenting from denial of certiorari). They may also result from a
general reluctance by States to put large numbers of defendants to
death, even after a sentence of death is imposed. Cf. Tempest, Death
Row Often Means a Long Life; California condemns many murderers,
but few are ever executed, L. A. Times, Mar. 6, 2006, p. B1 (noting that
California death row inmates account for about 20% of the Nation’s
total death row population, but that the State accounts for only 1% of
the Nation’s executions). In any event, they are most certainly not thefault of judges who do nothing more than ensure compliance with
constitutional guarantees prior to imposing the irrevocable punishment
of death.

STEVENS, J., concurring in judgment
433 U. S. 584 (1977), and for a murderer who did not
intend to kill, Enmund v. Florida, 458 U. S. 782 (1982). In
those opinions we acknowledged that “objective evidence,
though of great importance, did not ‘wholly determine’ thecontroversy, ‘for the Constitution contemplates that in the
end our own judgment will be brought to bear on the
question of the acceptability of the death penalty under
the Eighth Amendment.’” Atkins, 536 U. S., at 312 (quoting
Coker, 433 U. S., at 597 (plurality opinion)).
Justice White was exercising his own judgment in 1972when he provided the decisive vote in Furman, the case
that led to a nationwide reexamination of the death penalty.
His conclusion that death amounted to “cruel and
unusual punishment in the constitutional sense” as well
as the “dictionary sense,” rested on both an uncontroversial
legal premise and on a factual premise that he admittedly
could not “prove” on the basis of objective criteria.
408 U. S., at 312, 313 (concurring opinion). As a matter of
law, he correctly stated that the “needless extinction of life
with only marginal contributions to any discernible social
or public purposes . . . would be patently excessive” and
violative of the Eighth Amendment. Id., at 312. As a
matter of fact, he stated, “like my Brethren, I must arriveat judgment; and I can do no more than state a conclusion
based on 10 years of almost daily exposure to the facts and
circumstances of hundreds and hundreds of federal and
state criminal cases involving crimes for which death isthe authorized penalty.” Id., at 313. I agree with JusticeWhite that there are occasions when a Member of this
Court has a duty to make judgments on the basis of data
that falls short of absolute proof.
Our decisions in 1976 upholding the constitutionality of
the death penalty relied heavily on our belief that adequate
procedures were in place that would avoid the danger
of discriminatory application identified by JusticeDouglas’ opinion in Furman, id., at 240–257 (concurring

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STEVENS, J., concurring in judgment
opinion), of arbitrary application identified by JusticeStewart, id., at 306 (same), and of excessiveness identified
by Justices Brennan and Marshall. In subsequent years anumber of our decisions relied on the premise that “death
is different” from every other form of punishment to justify
rules minimizing the risk of error in capital cases. See,
e.g., Gardner v. Florida, 430 U. S. 349, 357–358 (1977)
(plurality opinion). Ironically, however, more recent caseshave endorsed procedures that provide less protections to
capital defendants than to ordinary offenders.
Of special concern to me are rules that deprive thedefendant of a trial by jurors representing a fair cross
section of the community. Litigation involving both challenges
for cause and peremptory challenges has persuaded
me that the process of obtaining a “death qualified jury” is
really a procedure that has the purpose and effect of obtaining
a jury that is biased in favor of conviction. The
prosecutorial concern that death verdicts would rarely bereturned by 12 randomly selected jurors should be viewedas objective evidence supporting the conclusion that thepenalty is excessive.18
Another serious concern is that the risk of error in
capital cases may be greater than in other cases because
the facts are often so disturbing that the interest in making
sure the crime does not go unpunished may overcomeresidual doubt concerning the identity of the offender.
Our former emphasis on the importance of ensuring that
decisions in death cases be adequately supported by reason
rather than emotion, Gardner, 430 U. S. 349, has been
undercut by more recent decisions placing a thumb on the
18See Uttecht v. Brown, 551 U. S. 1, ___ (2007) (slip op., at 1)
(STEVENS, J., dissenting) (explaining that “[m]illions of Americansoppose the death penalty,” and that “[a] cross section of virtually everycommunity in the country includes citizens who firmly believe thedeath penalty is unjust but who nevertheless are qualified to serve asjurors in capital cases”).

STEVENS, J., concurring in judgment
prosecutor’s side of the scales. Thus, in Kansas v. Marsh,
548 U. S. 163 (2006), the Court upheld a state statute thatrequires imposition of the death penalty when the juryfinds that the aggravating and mitigating factors are inequipoise. And in Payne v. Tennessee, 501 U. S. 808
(1991), the Court overruled earlier cases and held that
“victim impact” evidence relating to the personal characteristics
of the victim and the emotional impact of thecrime on the victim’s family is admissible despite the fact
that it sheds no light on the question of guilt or innocence
or on the moral culpability of the defendant, and thusserves no purpose other than to encourage jurors to makelife or death decisions on the basis of emotion rather than
A third significant concern is the risk of discriminatoryapplication of the death penalty. While that risk has been
dramatically reduced, the Court has allowed it to continueto play an unacceptable role in capital cases. Thus, in
McCleskey v. Kemp, 481 U. S. 279 (1987), the Court uphelda death sentence despite the “strong probability that [the
defendant’s] sentencing jury . . . was influenced by the fact
that [he was] black and his victim was white.” Id., at 366
(STEVENS, J., dissenting); see also Evans v. State, 396 Md.
256, 323, 914 A. 2d 25, 64 (2006), cert. denied, 552 U. S.
___ (2007) (affirming a death sentence despite the existence
of a study showing that “the death penalty is statistically
more likely to be pursued against a black personwho murders a white victim than against a defendant inany other racial combination”).
Finally, given the real risk of error in this class of cases,
the irrevocable nature of the consequences is of decisiveimportance to me. Whether or not any innocent defendants
have actually been executed, abundant evidenceaccumulated in recent years has resulted in the exoneration
of an unacceptable number of defendants found guilty
of capital offenses. See Garrett, Judging Innocence, 108

Cite as: 553 U. S. ____ (2008)
STEVENS, J., concurring in judgment
Colum. L. Rev. 55 (2008); Risinger, Innocents Convicted:
An Empirically Justified Factual Wrongful ConvictionRate, 97 J. Crim. L. & C. 761 (2007). The risk of executing
innocent defendants can be entirely eliminated by treating
any penalty more severe than life imprisonment without
the possibility of parole as constitutionally excessive.
In sum, just as Justice White ultimately based his conclusion
in Furman on his extensive exposure to countlesscases for which death is the authorized penalty, I have
relied on my own experience in reaching the conclusion
that the imposition of the death penalty represents “thepointless and needless extinction of life with only marginal
contributions to any discernible social or public purposes.
A penalty with such negligible returns to the State [is]
patently excessive and cruel and unusual punishment
violative of the Eighth Amendment.” Furman, 408 U. S.,
at 312 (White, J., concurring). 19
The conclusion that I have reached with regard to the
constitutionality of the death penalty itself makes my
19Not a single Justice in Furman concluded that the mention of deprivation
of “life” in the Fifth and Fourteenth Amendments insulated the
death penalty from constitutional challenge. The five Justices who
concurred in the judgment necessarily rejected this argument, and eventhe four dissenters, who explicitly acknowledged that the death penaltywas not considered impermissibly cruel at the time of the framing,
proceeded to evaluate whether anything had changed in the intervening
181 years that nevertheless rendered capital punishment unconstitutional.
Furman, 408 U. S., at 380–384 (Burger, C.J., joined byBlackmun, Powell, and Rehnquist, JJ., dissenting); see also id., at 420
(“Nor are ‘cruel and unusual punishments’ and ‘due process of law’
static concepts whose meaning and scope were sealed at the time oftheir writing”) (Powell, J., joined by Burger, C.J., and Blackmun and
Rehnquist, JJ., dissenting). And indeed, the guarantees of proceduralfairness contained in the Fifth and Fourteenth Amendments do not
resolve the substantive questions relating to the separate limitationsimposed by the Eighth Amendment.

STEVENS, J., concurring in judgment
decision in this case particularly difficult. It does not,
however, justify a refusal to respect precedents that remain
a part of our law. This Court has held that the
death penalty is constitutional, and has established aframework for evaluating the constitutionality of particular
methods of execution. Under those precedents,
whether as interpreted by THE CHIEF JUSTICE or JUSTICE
GINSBURG, I am persuaded that the evidence adduced bypetitioners fails to prove that Kentucky’s lethal injection
protocol violates the Eighth Amendment. Accordingly, I
join the Court’s judgment.