Supremes Rule on Lethal Injection

The U.S. Supreme Court on April 16 ruled that the trichemical cocktail used as lethal injection in the Kentucky death chamber does not violate the Eighth Amendment ban on cruel and unusual punishment, signaling that a de facto moratorium on executions nationwide may be lifted, and executions may soon begin anew.

Although the court ruled 7-2 in favor of the state of Kentucky, which argued that its strict lethal injection protocol is humane, the justices were nowhere near unanimous in their reasoning; the Supremes filed a total of seven opinions in the case, and just two justices – Anthony Kennedy and Samuel Alito – joined the majority opinion penned by Chief Justice John Roberts.

Indeed, in two separate opinions, Justices John Paul Stevens and Stephen Breyer concurred with the majority judgment but raised serious questions about the future of the death penalty itself. When the court agreed to hear this case (Baze v. Rees), "I assumed that our decision would bring the debate about lethal injection as a method of execution to a close," Stevens wrote. "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 on the basis of a more complete record," he continued. "Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol ... but also about the justification for the death penalty itself."

In the controlling opinion, Roberts concluded that "Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States." And the Kentucky prisoners at issue in this suit "agree that, if administered as intended, that procedure will result in a painless death," he continued. "Kentucky's decision to adhere to its protocol ... cannot be viewed as probative of the wanton infliction of pain under the Eighth Amendment."

Still, as Stevens suggested, the resolution of the Kentucky case does not mean a similar suit might not be brought, perhaps successfully, by another state "with a more complete record" – and none is more complete than Texas, where more than 400 people have been executed since the death penalty was reinstated in 1976. In contrast, Kentucky has executed just two individuals in that time.

Officials told The Dallas Morning News that it may be a few more weeks before Texas' death chamber reopens, pending the outcome of a similar case brought by death row inmate Heliberto Chi.