JURIST Guest Columnist Alison Nathan of Fordham University School of Law says that in the wake of the US Supreme Court's grant of certiorari in the Baze v. Rees Kentucky lethal injection case, the pending executions of inmates who have brought similar challenges should be put on hold…

The U.S. Supreme Court made headlines on Tuesday when it announced that it would consider whether the 3-drug lethal injection protocol used to carry out executions in Kentucky is constitutional. Most reaction to the Court’s grant of certiorari — some commentators have already called the case the highest profile this Term and the biggest death penalty case in decades — has focused on the significance of the case in light of the fact that most active death penalty states and the federal government employ a similar 3-drug protocol in their lethal injection procedures, suggesting that the Court’s ruling on Kentucky’s procedure could have widespread implications for the ability of states to continue carrying out lethal injection executions in the event the Court finds Kentucky’s procedures unconstitutional. Here I argue that some of this initial reaction to Baze is overblown and I focus instead on two aspects of the case that have not received attention — one substantive and one procedural. First, I argue that the most significant issue in the case is that the Court will clarify by what standard challenges to methods of execution should be judged. Second, I contend that because our legal system values deliberate, even-handed justice and the rule of law, death row inmates with imminent execution dates who have brought challenges to the lethal injection protocols they face should have their cases stayed pending the outcome in the Kentucky case.

The Key Issue In Baze

Tuesday morning the U.S. Supreme Court announced that it will consider directly for the first time in over 100 years a substantive Eighth Amendment challenge to a particular method of execution. The last time the Court took up such a challenge was in 1879 in the case of Wilkerson v. Utah, in which the Court considered and permitted an execution by firing squad in Utah. Tuesday, the Court agreed to hear the case of Baze v. Rees, a case brought by two Kentucky death row inmates who argue that Kentucky’s three-drug lethal injection protocol violates the Eighth Amendment ban on “cruel and unusual” punishment. The death row inmates in Baze argue that Kentucky’s methods and procedures for carrying out execution by lethal injection is likely to lead to excruciating pain prior to death and is, therefore, a cruel and unusual form of punishment forbidden by the Eighth Amendment to the U.S. Constitution.

In the time between the Wilkerson decision in 1879 and the Court’s action Tuesday agreeing to hear the Baze case, the Supreme Court has weighed in only indirectly on issues pertaining to the constitutionality of methods of execution. For example, in the 1890 case In re Kemmler, the Supreme Court allowed New York to carry out a capital sentence by electrocution—at the time a brand new and seemingly technologically advanced method of execution—after concluding that the Eighth Amendment did not apply to the states (a conclusion that the Court has subsequently reversed in a 1962 case) and then deferring to the New York state legislature’s determination that the method was humane. And in Louisiana ex rel. Francis v. Resweber, decided in 1947, the Supreme Court concluded that Louisiana could go forward with a second attempt to electrocute defendant Willie Francis, even though the state’s first attempt had failed to bring about his death. Because the Eighth Amendment issue was only indirectly implicated in these cases, they do not provide a clear and consistent articulation of what standard governs the evaluation of such a claim.

Similarly, although recent years have seen a dramatic increase in state and lower federal court challenges to lethal injection as a method of execution, the Supreme Court’s involvement in this issue has been confined to procedural questions. In 2004 and 2006 in the cases of Nelson v. Campbell and Hill v. McDonough, the Supreme Court issued procedural rulings allowing challenges to lethal injection to go forward in the lower courts. This is precisely what has occurred. In the wake of Nelson and Hill, litigation in several states has progressed at a responsible pace: many litigants have brought challenges at early stages and often without an imminent execution date looming, courts have granted evidentiary hearings to allow discovery and the taking of testimony from relevant witnesses and experts, and some states have taken initiative in examining and improving their own executions procedures. This state by state consideration of the issue and development of humane procedures is consistent with federalism and the Court’s approach to other death penalty issues. The Court’s determination in Baze should not undermine this on-going process. Moreover, the Supreme Court’s evaluation of the Kentucky procedures in Baze can have only limited applicability to the evolving reform efforts already well underway in the other states.

What is notably lacking from the state by state evaluation and reform process, however, is a uniform substantive standard by which lower courts can engage in the analysis. For example, some cases suggest that the standard is whether the procedures produce an “unnecessary risk” of pain, while others suggest that execution procedures should be evaluated by a standard that gauges whether there is “a substantial risk of the wanton infliction of pain.” There are two very different standards that could lead to disparate results. It is for this reason, that of the questions in the Baze petition for certiorari that the Supreme Court granted on Tuesday, the most crucial one is the first, which asks: “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?” In other words, what standard should courts use to evaluate execution procedures and protocols in a particular state? Although identical execution procedures need not be imposed on states, a uniform federal standard under the Eighth Amendment is plainly required.

Executions Scheduled Before the Decision in Baze

Another issue that is just beginning to emerge in the wake of the Court’s Tuesday grant in Baze, involves the procedural question of what should happen to other death row inmates who have unsuccessfully challenged lethal injection and who face execution between now and the time the Supreme Court issues a ruling in Baze, which will most likely be in the spring of 2008. Given an average national execution rate of approximately one person per week, it is reasonable to presume that about one to two dozen people in various states around the country will be in this position. What should happen to them?

These executions should be put on hold until the Court decides the Baze case. Executing a death row inmate while the Supreme Court is deliberating on the appropriate standard by which to assess the constitutionality of a method of execution and while a lethal injection protocol is being squarely considered by the U.S. Supreme Court offends basic n
otions of fairness and even-handed justice and serves only an unwarranted rush to execution. Once the Supreme Court issues a decision in Baze, states will have the opportunity to evaluate the execution procedures that are emerging from the state by state reform effort and executions can then go forward.

Stays of Execution

The issue of pending lethal injection executions that are scheduled to take place between now and when the Supreme Court issues a decision in Baze can come up in one of three ways. First, a defendant facing imminent execution may be able to file a motion in state court seeking a stay of execution pending a decision in Baze. State courts should grant such a stay since the resolution of the issue in Baze will most likely impact the standard by which other lethal injection procedures are evaluated. If the highest court in a state does grant or affirm such a stay in the meantime, that stay must remain in place until Baze is decided. The U.S. Supreme Court has jurisdiction to intervene in state cases that raise federal constitutional issues only once a state court has issued a “final judgment.” If a state court enters an interlocutory order staying an execution, it is not a final judgment and the U.S. Supreme Court cannot vacate such a stay. Indeed, I can find no instance in which the Supreme Court has vacated an interlocutory stay of execution entered by a state court.

The second possibility involves the federal courts. If a state court has no avenues open for staying an execution pending a decision in Baze, a death row inmate may seek a stay of execution from a federal court. Once again, a federal court should issue such a stay since the outcome of Baze will likely impact other lethal injection challenges. If such a stay is granted and affirmed on appeal by a federal appellate court, then the Supreme Court again should deny any effort by a state prosecutor or attorney general to seek to have that stay “vacated.” Although the Supreme Court has in the past occasionally vacated stays of execution issued by lower federal courts, its jurisdictional authority to do so is questionable. In the past, the Court has seemingly relied on 28 U.S.C.§ 1651, otherwise known as the “All Writs Act,” to vacate federal court granted stays of execution. But the All Writs Act exists in order for the Supreme Court to take steps necessary to preserve its jurisdiction, not eliminate any future possibility of such jurisdiction. By allowing a lethal injection execution to go forward before the Baze decision is issued, there will be no possibility of future jurisdiction for the simple and significant reason that the execution of that death row inmate prior to the Baze decision will moot the issue.

Finally, failing state court or lower federal court intervention, death row inmates facing imminent execution dates may seek a stay of execution from the U.S. Supreme Court itself. For the same reasons discussed above, the Supreme Court should grant such a stay request and hold in abeyance any such cases pending the outcome in Baze. Especially where the death penalty is concerned, our justice system must appear to value and genuinely value deliberateness and even-handedness over speed and finality. If past practice is a guide, there will likely be at least four votes on the Supreme Court to issue such a stay (pursuant to the “Rule of Four,” four votes were all that was necessary for the Court to grant review in the Baze case). Although technically five votes are necessary to grant a stay, as other commentators have long noted, having an execution go forward and moot itself out despite a sufficient number of votes available to hear the case, is unseemly and unfair.

However the Supreme Court rules in Baze this coming Spring, our enviable and careful system of criminal justice requires pausing until that time executions of inmates who have brought similar challenges.

Alison J. Nathan is a Visiting Assistant Professor at Fordham Law School. She is a former law clerk to US Supreme Court Justice John Paul Stevens and teaches in the areas of civil procedure, habeas and the death penalty.
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