Yesterday presented a significant decision regarding lethal injection in Baze v. Rees (click here for the slip opinion) and the oral argument in Kennedy v. Louisiana (click here for the transcript of the arguments), a case dealing with allowing for the death penalty in cases of child rape.

First, with a fractured 7-2 decision, the Court ruled to affirm the judgment of the Kentucky Supreme Court regarding the state’s procedure for lethal injection “compl[ying] with the constitutional requirements against cruel and unusual punishment.”  This same or a similar method is currently in use by over 30 other states. 

While the three Justices in the plurality (Chief Justice John Roberts, Justice Anthony Kennedy, and Justice Samuel Alito) outlined a standard for execution methods - whether there is a “substantial risk of serious harm” - the other four concurring Justices did not join in supporting that formulation (Justices John Paul Stevens, Stephen Breyer, Clarence Thomas, and Antonin Scalia).  Justices Ruth Bader Ginsberg and David Souter dissented.

As with all opinions of this nature, we are left with merely a ruling on the instant case.  While there was no substantive decision made on the larger issue of lethal injection and the Eighth Amendment, there were some hints of where members of the Court may go in the future if presented with another case on the subject.

One of the most notable aspects of this decision rests within the opinion of Stevens, who concurred in the judgment only, in which he signaled both that he had expected a different result in this case and that he has adopted a stance against the death penalty in all forms.

When we granted certiorari in this case, I assumed that our decision would bring the debate about lethal injection as a method of execution to a close.  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.  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, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself…[J]ust as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.  A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”  Furman [v. Georgia], 408 U. S. [238], at 312 [(1972)] (White, J., concurring).

This opinion sparked a sharp reaction from Scalia, who devoted his entire opinion to providing “what [he] think[s] is needed response to JUSTICE STEVENS’ separate opinion.”  Scalia concluded by implying that the death penalty issue should be dealt with by Congress and not the Court.

 In the face of Justice Stevens’ experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress-who retain the death penalty as a form of punishment-is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” It is Justice Stevens’ experience that reigns over all.

I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views-which means, to me, that it is preeminently not a matter to be resolved here. And especially not when it is explicitly permitted by the Constitution.

Where the Court goes from here is an open question, as Baze has changed nothing beyond the fate of the Kentucky inmates directly involved and, by extension, those on death row who benefitted from the pseudo-moratorium that had been in place since review was granted last September.

However, in the arguments for Kennedy v. Louisiana, we are presented with some interesting lines of questioning by the Court.

Continuing the focus on Stevens, nearly all of his questioning revolved around evolving standards of decency within the international community context.

I know it is not popular to refer to refer to international commentary on issues like this, but the English law lords have filed an amicus brief discussing the international principle that nations that retain the death penalty may not extend the death penalty to crimes to which it does not presently apply.

They suggest that as a matter of international law, there’s sort of a correspondence to our evolving standards of decency that have generally governed our Eighth Amendment jurisprudence. It’s kind of a one-way rachet [sic], we look at trends in one direction but we don’t look to see if you suddenly have changed gears and go in the other direction. 

This question to respondent’s counsel seemed to be a partial nod to Roper v. Simmons, 543 U.S. 551 (2005), and a signal that looking beyond our borders for guidance was not just an exercise reserved for the juvenile death penalty.

Moving beyond Stevens, the greater focus in Kennedy is the status and meaning of Coker v. Georgia, 433 U.S. 584 (1977), a case that found receiving the death penalty for rape of an adult woman violates the Eighth Amendment.  In Coker, the court focused primarily on objective indicia of community standards (the history and trends of legislative acts as well as jury verdicts across the U.S.), but also factored in their own independent moral evaluation (the proportionality test) regarding whether the death penalty was appropriate punishment for rape.  Since Coker, the general consensus was that the death penalty is reserved for violent crimes that result in death.

During the course of oral arguments many of the questions followed in the same vein of Coker with the focus being on objective indicia of community standards (looking at how child rape is treated by other states) and on proportionality.

Petitioner’s counsel captures the strong parallel between these two cases in his closing statement:

All we have done in the past 30 years is returned [sic] to the place that we were 30 years ago in Coker. In Coker when you read that opinion, six states make child rape a capital offense. Through all the might and effort of proponents of these laws, what they’ve been able to accomplish over 31 years is to bring it back exactly where we were in Coker…This Court’s whole Eighth Amendment jurisprudence is based on the idea that a few states may well have laws making something a capital crime and may choose to be outliers, but the very notion of this 

Court’s proportionality jurisprudence is that when states are outliers, and especially in a case like this, when even are those outlier states impose the death penalty so rarely and freakishly, that is a situation where the Eighth Amendment does not tolerate it.

The strong parallels between Coker and Kennedy, along with the line of questioning during oral arguments today, seem to indicate that the Court will deliver a decision that clarifies its position on whether states can attach the death penalty to crimes that do not result in death.

For further reading:

Supreme Court Allows Lethal Injection for Execution by Linda Greenhouse (NYT)
Justices Uphold Lethal Injection Procedure by Robert Barnes (WaPo)
Supreme Court debates execution in child rape case by Bill Walsh (Times-Picayune)
The Supreme Court Considers Whether Imposing the Death Penalty for Child Rape is Constitutional by Marci Hamilton (FindLaw)
Supreme Court ponders death for rapists of children by Michael Doyle (McClatchy)

Update (4/22):  See also What is a judicial fiat, anyway? by Alice Ristroph (Concurring Opinions) for a focused discussion on one point of Scalia’s criticism of Stevens, as well as a variety of follow-ups and commentary on SCOTUSBlog: The Baze Sequals - a single pattern by Lyle Denniston, Protocol and Practice by Eric Berger, Going Forward by Kent Scheidegger, Justice Stevens’ Concurrence by Ty Alper, and Praise for Baze by Douglas A. Berman.