SCOTUS Rules on Death Penalty Case: Executions Upheld 7-2

This just came out a few minutes ago (PDF), upholding Kentucky's lethal injection procedure. It's a lengthy split decision. I'm reading it now and will update soon. I hope the Court manages to sort out some of the historical difficulty that interpretations of the phrase "cruel and unusual" have met.

Okay, this is a splintered decision, with only 3 justices signing on to the plurality. There are six concurring opinions and one dissent. The justices spent little time parsing the meaning of the phrase "cruel and unusual" and no time discussing the difference between the two words. It is a victory for death penalty advocates, but the disagreement between the justices will lead to a great deal of litigation. I expect that the various stays of execution that were issued by the Court and granted by several states while the case was pending will be dropped.

Here's how things shake out:

Roberts, Kennedy, Alito support a standard in which the Eighth Amendment only prohibits a capital procedure if it presents a "substantial risk of serious harm."

Stevens does not present a workable standard.

Scalia and Thomas support a standard in which the Eighth Amendment only prohibits a capital procedure if it is "deliberately designed to inflict pain."

Breyer, Ginsburg, Souter support a standard in which the Eighth Amendment would prohibit a capital procedure if it "creates an untoward, readily avoidable risk of inflicting severe and unnecessary suffering."

Discussion of the individual opinions is below the fold for other law morons.

CHIEF JUSTICE ROBERTS wrote the plurality opinion, gaining the support of only Justices Kennedy and Alito for the proposition that a death penalty procedure is "cruel and unusual" if it presents a "substantial risk of serious harm" or an "objectively intolerable risk of harm" to the executed inmate. Harm, in this case, means pain and suffering, not death.

Roberts notes the arguments that simply will not fly: that capital punishment is cruel and unusual; that a widely-tolerated procedure, like Kentucky's, is unlikely to be "objectively intolerable"; and that a mere possibility of using alternative methods of execution does not invalidate current procedures.

The real kicker is that Roberts holds that execution procedures are to be examined in light of the planned and properly drawn procedure rather than the effects of maladministration of the punishment. This is a sharp blow to the petitioners here and to anti-death penalty advocates, who rested a large portion of their case on the idea that the chance of an error during the procedure brought it into the realm of the cruel and inhumane. Roberts says that won't cut it and that there will always be the chance of a harmful mistake in death procedures.

JUSTICE ALITO wrote separately to clarify the Court's standard in an effort to stave off further litigation. I read this largely as an attempt to signal that he does not wish to entertain further discussion on the topic in the near future. Unlike the Chief Justice, Alito takes time to counter the dissenters' arguments.

JUSTICE STEVENS also concurs, but takes the opposite tack and practically invites further litigation on the issue. He is very skeptical of the death penalty, but refuses to overturn precedent on a case like this.

He has an interesting philosophical discussion of the justifications for capital punishment, but it is disappointingly incomplete. He mentions retributive and utilitarian justifications, but fails to discuss other philosophies which might permit capital punishment like expressionism.

JUSTICE SCALIA concurs, but writes in order to rebut Stevens with some dubious statistics related to the deterrent effect of capital punishment. He also gets right up in Stevens' grill and blames him and judges like him for the current state of affairs in which it takes decades to execute a person convicted of a capital crime.

JUSTICE THOMAS, along with Scalia, rejects the Court's standard (this is why we're going to see more litigation, not less) and says that the Eighth Amendment only prohibits procedures which are deliberately designed to inflict pain. Thomas claims that this conclusion rests on solid precedent and historical understandings. Since Kentucky's lethal injection procedure was designed to reduce the pain of executions, he concurs with the judgment of the court in upholding.

JUSTICE BREYER also rejects the Court's standard and actually agrees with the dissenters' proposal. He just comes to the opposite conclusion.

Which brings us to JUSTICE GINSBURG with Souter. They propose that a capital procedure should avoid any "untoward, readily avoidable risk of severe and unnecessary suffering." She comes to that after admitting that precedent is unclear on the applicable standard.

She doesn't write to explicitly invalidate Kentucky's death penalty procedure, but it is clear that she would block any procedure which didn't comply with all the safeguards used by the various states. In effect, she would start a Red Queen's Race among states who wish to use the death penalty, something that would surely bring a halt to all punishment regimes.

posted by Gabriel Malor at 11:37 AM

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