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Baze decision masks division over capital punishment

Laura Porter [Director of Organizing, Equal Justice USA]: "The Supreme Court issued its decision in the case of Baze v Rees this week, upholding the constitutionality of Kentucky's lethal injection protocols. Texas has already taken the Court's ruling as a green light to set an execution date - the first of dozens of cases that have been on hold in anticipation of the ruling - and other states like Florida have announced that they will resume their schedule of executions as well.

But the 7-2 decision in Baze belies a deeply fractured consensus on the Court. The seven jurists in the majority expressed different reasons and differing opinions as to how this will effect future executions. Justice Alito acknowledged that "[t]he issue presented in this case — the constitutionality of a method of execution — should be kept separate" from more fundamental questions about the death penalty itself. Others noted that the fate of capital punishment remains in the hands of the states. In that regard, this messy decision reflects the deep uncertainty as to the future of that fate — uncertainty that continues to grow well beyond the issue of lethal injection.

Death sentences — which were free to continue unabated during the lethal injection moratorium — are at an all-time low. Juries are consistently choosing life without parole over the death penalty. Meanwhile, across the nation lawmakers are asking whether the penalty makes sense anymore. California, Tennessee and Maryland are conducting statewide studies to examine the death penalty system. New York's death penalty has been permanently suspended and there's little appetite to bring it back. New Jersey fully abolished the death penalty last year, while Montana, Nebraska and New Mexico have come close to doing the same.

This trend is hardly surprising. The risk of executing an innocent person continues to haunt the American public. Just last week another wrongfully convicted man walked off death row after a court found that evidence pointing to his innocence was hidden from his attorneys for over a decade. We also know more today than ever before about the ways the death penalty impedes law enforcement efforts and harms victims' family members.

Police Chief James Abbott, a death penalty supporter who served on the New Jersey Death Penalty Study Commission, recently wrote, "I no longer believe that you can fix the death penalty. Six months of study opened my eyes to its shocking reality. I learned that the death penalty throws millions of dollars down the drain — money that I could be putting directly to work fighting crime every day — while dragging victims' families through a long and tortuous process that only exacerbates their pain." Law enforcement officials in Maryland, California, and New York have concurred, coming forward to say that the death penalty is simply not an effective law enforcement tool.

In one way, the ruling in Baze will have a clear effect: it puts an end to the longest period without a single execution in our country in decades. After such an extended moratorium, we can expect to see a slew of executions in the coming year. But that will not affect the sea change in public opinion and state policy — a shift that, despite the collateral matter addressed in Baze, is moving us beyond the death penalty altogether."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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Professional Commentary is JURIST's platform for newsmakers, activists and legal experts to comment on national and international legal developments.

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