U.S. Supreme Court to Review Constitutionality of Lethal Injection


On September 25, 2007, the United States Supreme Court granted certiorari in Baze et al. v. Rees et al., No. 07-5439, to address whether the lethal injection execution procedures used in most death penalty states violate the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution.

Ralph Baze and Thomas Clyde Bowling, Jr., sued Kentucky in 2004 claiming that Kentucky’s lethal injection procedure amounts to cruel and unusual punishment in violation of the Eighth Amendment because it can inflict unnecessary pain and suffering on the prisoner. Kentucky uses the same three-drug cocktail used by every other state (except New Jersey) to carry out lethal injections. After a full trial on the merits in a Kentucky trial court, the state courts denied Baze and Bowling’s claims. They appealed to the United States Supreme Court in a petition for writ of certiorari in which they urged the Court to address the constitutionality of lethal injection procedures in part to give guidance to lower courts who are frequently hearing lethal injection claims and reaching dramatically different results across the nation. The Court has never before ruled whether the mix of drugs used to conduct executions violates the cruel and unusual punishment clause.

The Court ordered the parties to submit final briefs by December 28, 2007. Executions already are on hold in a number of states due to concerns about the constitutionality of lethal injection protocols. With a reprieve issued by Governor Bob Riley to stay the September 27 execution of Thomas Arthur, Alabama joined the growing number of states in which executions have been stayed in the past year due to concerns about the lethal injection protocol, including Arkansas, California, Delaware, Florida, Maryland, Missouri, New Jersey, North Carolina, Ohio, South Dakota, and Tennessee.

Whether executions will be stayed nationwide until the Court issues its decision in Baze, probably some time next year, remains to be seen. On the same day the Court granted certiorari in Baze, it permitted the State of Texas to execute Michael Richard, but on September 27, 2007, the Court at the last minute stayed the execution of another Texas inmate, Carlton Turner, which may signal lower courts to halt all executions until the Supreme Court determines whether lethal injection as currently administered violates the Constitution. Indeed, the Texas Court of Criminal Appeals on October 2, 2007, granted a stay to Heliberto Chi, who was scheduled to be executed on October 3, 2007.