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Despite Kentucky death penalty ruling, Supreme Court justices offer hope

Sarah Tofte [researcher, Human Rights Watch]: "On April 16, in Baze v. Rees, the US Supreme Court issued its highly anticipated ruling on the constitutionality of Kentucky's use of lethal injection as a method of execution. Although on the surface the Court's decision, by a vote of 7-2, to uphold Kentucky's lethal injection protocol looks like a clear endorsement of current execution methods, the deeply fractured opinions of the seven justices who voted in the majority make it highly likely that Baze will not resolve the rising concern of lawyers, judges, medical experts, and the public that lethal injection is inhumane.

When the Baze decision came down, the immediate headlines announced that opponents of lethal injection had lost. But those who believe that lethal injection is an unacceptably risky way to kill found hope in the language of Chief Justice Roberts, who noted that if there is an alternative to the current lethal injection protocol that is "feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain," then a state's refusal to adopt that alternative could constitute cruel and unusual punishment prohibited by the Eighth Amendment.

In a 2006 report, Human Rights Watch found that death penalty states had paid little or no heed to the risk that lethal injection may cause unnecessary pain and suffering. In fact, lethal injection poses many hazards, including a significant risk that the condemned prisoner will suffer excruciating pain, yet be unable to move or cry out because of a paralytic drug that is administered as part of the execution protocol. These concerns are not merely hypothetical. Just consider the 2006 Florida execution of Angel Nieves Diaz, who was given a second dose of the three-drug protocol after the first dose failed to kill him. An autopsy revealed that the needle inserted into Mr. Diaz had gone through his vein and into his soft tissue, where the deadly chemicals were not absorbed fast enough to cause a swift death. It took Mr. Diaz thirty-four minutes to die.

It is also important to note another milestone of the Baze case. For the first time, Justice Stevens made clear his view that the death penalty is unconstitutional, in an eloquent and damning opinion listing the reasons why Americans should halt the failed experiment of capital punishment. The list is long, but includes the dozens of wrongfully convicted death row prisoners later exonerated by DNA testing; the racially discriminatory application of the death penalty; and the lack of any clear evidence that the death penalty deters violent crime.

Support for the death penalty runs deep on the current Court, and few expected a ruling that would have brought executions to a halt for the foreseeable future. But even as it upheld Kentucky's protocol, the Court made unmistakably clear that executions must not involve gratuitous suffering. Death penalty states should carefully review their execution protocols with this warning in mind, rather than engaging in an unseemly rush to kill."

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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