(May 2, 2008) On April 16, the Supreme Court ruled that a state's use of a three-drug lethal injection protocol for capital punishment does not violate the ban on cruel and unusual punishment in the United States Constitution.
Kentucky is one of at least 30 states that uses a three-drug lethal injection protocol for capital punishment. In the protocol, the first drug induces unconsciousness to prevent the prisoner from experiencing pain associated with the paralysis and cardiac arrest caused by the second and third drugs. Petitioners Ralph Baze and Thomas C. Bowling, convicted murders sentenced to death in Kentucky state court, filed suit asserting that this lethal injection protocol violates the Eighth Amendment because if improperly administered it can cause severe pain, and because there are superior alternative means available. The state trial court ruled that there was minimal risk of improper administration of the protocol, and upheld it as constitutional. The Kentucky Supreme Court affirmed, ruling that the protocol does not create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death. The Supreme Court accepted the case for review.
A majority of justices concluded that Kentucky's lethal injection protocol does not violate the Eighth Amendment. The controlling plurality opinion by Chief Justice Roberts, joined by two other Justices, stated that to constitute cruel and unusual punishment, an execution method must present a "substantial" or "objectively intolerable" risk of serious harm, and a state's refusal to adopt alternative procedures may violate the Eighth Amendment only where the alternative procedure is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain. Chief Justice Roberts wrote that the practice of using the three-drug protocol could not be deemed "objectively intolerable" because there is a consensus that it is tolerable, evidenced by the fact that 30 states have adopted it. The opinion stated that in light of the safeguards Kentucky's protocol puts in place to avoid improper administration of the protocol, the risks of administering an inadequate sodium thiopental dose are not so substantial or imminent as to amount to an Eighth Amendment violation. (Baze v. Rees, No. 07-5439 (April 16, 2008), available at http://www.supremecourtus.gov/opinions/07pdf/07-5439.pdf.)