553 U.S. 35 (2008)
Ralph Baze and Thomas C. Bowling were each convicted of two counts of capital murder and sentenced to death.1
The Kentucky Supreme Court upheld their convictions and sentences on direct appeal.2 Kentucky replaced electrocution with lethal injection in 1998.3 The protocol calls for the sequential injection of three grams of sodium thiopental to induce unconsciousness, followed by pancuronium bromide to paralyze the muscles and potassium chloride to induce cardiac arrest.4
The protocol requires that members of the IV team have at least one year of professional experience as a certified medical assistant, phlebotomist, EMT, paramedic, or military corpsman.5 Those members participate in at least ten practice sessions per year that encompass a complete walk-through of the execution procedures. Only one Kentucky prisoner has been executed under the protocol, and there were no reported problems at that execution.6
After exhausting their state and federal collateral remedies, Baze and Bowling sued three state officials in the Franklin Circuit Court seeking to have the lethal injection protocol declared unconstitutional.7 The trial court held a seven-day bench trial during which it received the testimony of approximately twenty witnesses including numerous experts.8 The trial court upheld the protocol.9 On appeal the Kentucky Supreme Court affirmed the trial court's decision.10 The United States Supreme Court granted certiorari to determine whether Kentucky's lethal injection protocol satisfies the Eighth Amendment.11
Whether Kentucky's three-drug lethal injection protocol violates the Eighth Amendment's prohibition on cruel and unusual punishments?12
The Eighth Amendment prohibits methods of execution that present a substantial risk of serious harm that is objectively intolerable. A state's refusal to adopt an alternative method violates the Eighth Amendment only if the alternative is feasible, readily implemented, and significantly reduces a substantial risk of severe pain.13 The Constitution does not demand the avoidance of all risk of pain in carrying out executions.14
No. Ralph Baze and Thomas C. Bowling were each convicted of two counts of capital murder and sentenced to death. Their convictions and sentences were upheld on direct appeal by the Kentucky Supreme Court. Kentucky replaced electrocution with lethal injection in 1998.
The protocol uses three grams of sodium thiopental to induce unconsciousness, followed by pancuronium bromide and potassium chloride. The protocol requires IV team members to have at least one year of professional experience. The IV team members participate in at least ten practice sessions per year. Only one prisoner has been executed under the protocol with no reported problems.
The trial court held a seven-day bench trial with testimony from approximately twenty witnesses. The trial court upheld the protocol. The Kentucky Supreme Court affirmed. The Supreme Court granted certiorari.
Application of the legal rule to these facts demonstrates that petitioners failed to prove a substantial or objectively intolerable risk of serious harm.15
Kentucky's three-drug lethal injection protocol does not violate the Eighth Amendment's prohibition on cruel and unusual punishments.16
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Justice Alito joined the opinion of the Court except for Part V.17 He wrote separately to emphasize that the standard adopted by the Court is consistent with precedents and provides appropriate guidance to the lower courts.18 He stressed that the constitutionality of capital punishment is not before the Court.19 Lethal injection is assumed to be a constitutional means of execution.20
Alito noted the ethical restrictions on medical professionals that limit their participation in executions.21 He argued that a suggested modification cannot be regarded as feasible if it would require participation by persons whose professional ethics rules impede their involvement.22 He concluded that an inmate must demonstrate that a modification would significantly reduce a substantial risk of severe pain.23
He further required a well-established scientific consensus before a state's refusal to change its method could be viewed as comparable to previously recognized Eighth Amendment violations.24
Joined by Justice Scalia
Justice Thomas concurred in the judgment on the ground that the Eighth Amendment prohibits only those punishments that were considered cruel and unusual at the time of the founding.25 He found no evidence that lethal injection was considered cruel and unusual at that time.26 Thomas rejected the plurality's formulation of the governing standard as finding no support in the original understanding of the Cruel and Unusual Punishments Clause or in previous method-of-execution cases.27
He argued that a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain.28 Kentucky's protocol was adopted to make capital punishment more humane rather than to add elements of terror, pain, or disgrace.29
Whether the protocol creates a substantial risk of severe pain due to potential maladministration of sodium thiopental?30
To establish that exposure to a risk of future harm violates the Eighth Amendment, the conditions presenting the risk must be sure or very likely to cause serious illness and needless suffering and give rise to sufficiently imminent dangers.31 An isolated mishap alone does not give rise to an Eighth Amendment violation because such an event does not suggest cruelty or a substantial risk of serious harm.32
No. The protocol calls for the injection of three grams of sodium thiopental.33 This dose is more than sufficient to render the inmate unconscious and insensitive to pain.34 Members of the IV team must have at least one year of professional experience as a certified medical assistant, phlebotomist, EMT, paramedic, or military corpsman. The IV team members participate in at least ten practice sessions per year that encompass a complete walk-through of the execution procedures.
The protocol requires the IV team to establish both primary and backup lines.35 The protocol requires preparation of two sets of the lethal injection drugs before the execution commences.36 The warden and deputy warden remain in the execution chamber.37 They watch for signs of IV problems.38
They redirect the flow of chemicals to the backup IV site if the prisoner does not lose consciousness within sixty seconds.39 These facts demonstrate that Kentucky has put in place several important safeguards to ensure that an adequate dose of sodium thiopental is delivered.40
The protocol does not create a substantial risk of severe pain due to potential maladministration of sodium thiopental.41
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Justice Stevens concurred in the judgment because he agreed that petitioners have not carried their burden of proving that Kentucky's protocol violates the Eighth Amendment.42 He continues to believe that the death penalty is unconstitutional.43 He expressed concern that pancuronium bromide serves no therapeutic purpose and creates a risk that the inmate will suffer excruciating pain before death occurs.44
Stevens noted that the drug is prohibited in animal euthanasia in several states including Kentucky.45 He argued that its use is unseemly when the state would not permit it to be used on pets.46 He observed that the states simply fell in line behind Oklahoma in adopting the three-drug protocol without critical analysis.47
Stevens suggested that states wishing to decrease the risk of future litigation would do well to reconsider their continued use of pancuronium bromide.48
Joined by Justice Thomas
Justice Scalia joined the opinion of Justice Thomas concurring in the judgment and wrote separately to respond to Justice Stevens.49 He argued that Justice Stevens' conclusion that the death penalty is unconstitutional is insupportable as an interpretation of the Constitution.50 The Constitution expressly permits capital punishment in the Fifth Amendment.51
Scalia contended that the value of capital punishment as a deterrent is a complex factual issue that properly rests with legislatures.52 Justice Stevens' policy analysis fails on its own terms.53 He rejected the notion that the risk of executing an innocent person renders the death penalty unconstitutional.54
The same risk exists for any criminal penalty.55 Justice Stevens provided no example of a person executed for a crime he did not commit in the current American system.56
Whether Kentucky must adopt petitioners' proposed one-drug protocol using only sodium thiopental?57
A condemned prisoner cannot successfully challenge a state's method of execution merely by showing a slightly or marginally safer alternative.58 The proffered alternative must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.59 A state is not required to adopt an alternative method simply because a challenger can point to a slightly safer alternative.60
No. Petitioners' proposed one-drug protocol using only sodium thiopental has not been adopted by any state.61 It has never been tried.62 The record contains conflicting evidence regarding the one-drug protocol.63 Some experts testified that it is not used in any state and has not been adequately studied.64
Others expressed concerns about the time required for death to occur.65 The state trial court specifically found that pancuronium bromide serves two purposes.66 It prevents involuntary physical movements during unconsciousness that may accompany the injection of potassium chloride.67 It stops respiration to hasten death.68
Kentucky's decision to include the drug does not offend the Eighth Amendment.69 These facts establish that the alternative has not been shown to be feasible or significantly safer.70
Kentucky is not required to adopt petitioners' proposed one-drug protocol using only sodium thiopental.71
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Joined by Justice Souter
Justice Ginsburg dissented.72 She would have vacated and remanded with instructions to consider whether Kentucky's omission of basic safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.73 The record demonstrates that Kentucky's protocol poses an undue risk of inflicting severe pain.74
The state has not adequately justified its refusal to adopt the one-drug protocol.75 The use of pancuronium bromide masks the inmate's suffering and creates an unacceptable risk that the execution will be botched without detection.76 Other states have adopted safeguards such as pausing between the first and second drugs to confirm unconsciousness by touching the inmate's eyelashes, calling his name, and shaking him.77
Kentucky does little to ensure that the inmate receives an effective dose of sodium thiopental beyond using qualified personnel to establish IV access.78