The Interesting Case of Baze v. Rees:
On Monday, January 7, the Supreme Court will hear argument in Baze v. Rees, a case on the constitutionality of the current method of lethal injection that 35 states use to carry out the death penalty. The question: Does use of the three-drug cocktail of chemicals that states use to carry out executions amount to cruel and unusual punishment because of the risk that state officials could make an error and inadvertently cause the individual to suffer pain before he dies? The briefs of the parties and the various amici are available here.

  Baze is a very interesting case, and I wanted to offer some thoughts on it. (Full disclosure before I begin: I have discussed the case with counsel for the Respondents, although of course this post only reflects my own views.) I think that Baze is an unusual Supreme Court case for three different but related reasons: legal, factual, and strategic.

  First, as a matter of law, there is relatively little legal precedent on point, and the precedent that exists can be interpreted in different ways. The Court has said that the Eighth Amendment prohibits "the unnecessary and wanton infliction of pain," Whitley v. Albers, 475 U.S. 312, 319 (1986). But how do you measure what is necessary — necessary compared to what alternative?

  Second, because everyone agrees that the current method of execution is painless if the procedure is carried out without error, the litigation is largely over the somewhat novel question of risk of error — how much of a risk of error is too much for the Constitution, and how can judges tell how risky a particular proceeding may be?

  Third, strategically, I think it's fair to assume that counsel for the petitioners have goals pretty different from what they're forced to argue. Presumably counsel's the goal is to end executions, not minimize the chances of pain during them.

  How will these factors play out?

  I gather the case will be trivially easy for the four more conservative Justices. For the four on the right, the notion that the Eighth Amendment's prohibition on cruel and unusual punishment could bar a painless procedure on the ground that there is some chance things could go wrong and inadvertently cause pain is likely to seem rather silly. And you don't need to be an originalist to get there: In Estelle v. Gamble, 429 U.S. 97 (1976), the Court held that deliberate indifference to medical needs could violate the Eighth Amendment but that the accidental infliction of pain — pain caused by "[i]nadvertent failure to provide adequate medical care" — did not. Justice Marshall's opinion in Estelle favorably discussed Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947), a method of execution case decided on Due Process grounds, and suggested that it was "similar" to the Eighth Amendment issues raised in medical care cases. If you apply the same standard to methods of execution (which seems sensible, given Estelle's favorable discussion of Resweber and suggestion that it was "similar"), this issue should be easy.

  For the other five Justices, though, I think this is likely to be a more difficult case. My sense is that these five Justices will want to push the states to adopt better procedures. But it's really quite hard to know how to do that; the Justices are not doctors, and they have no particular knowledge of how to regulate what amount to medical procedures. Plus, my sense is that there is very little experimental knowledge among experts as to which means of execution are actually the most reliable in ending life without pain. (Medical associations bar doctors from participating in executions.) And it's not like the Supreme Court can order the creation of a commission to study the reliability of different drug cocktails. Given that, a Justice wanting to push states to improve their methods of execution won't have a lot of obvious specific recommendations to make.

  The brief for the defendant (the one making the constitutional claim) tries to deal with these issues by making two moves. The first move is to aggregate risks: the brief argues that when determining the risk of pain, the Court should aggregate all of the executions that use a particular protocol: the question shouldn't be whether a particular execution is likely to involve inadvertent pain, but rather the chances that someone will suffer terrible pain if the protocol is allowed given the hundreds of people who may be executed using that protocol. (Brief at 42). The aggregation move magnifies the risk; it's not just one person's isolated risk that matters, but rather the cumulative risk of everyone in the future or in the past subject to that protocol.

  The second move is to suggest that the Eighth Amendment requires a factual hearing to hash out all the probabilities. The brief argues that an execution protocol is unconstitutional if, "taken as a whole" — that is, looking at all of the executions that use this particular protocol — [it] presents a significant risk of causing [someone] severe pain that could be avoided through the use of a reasonably available alternative or safeguard." (Brief at 38). The defendant's brief stresses that this is an evolving standard: the idea, as I understand it, is that the constitutionality of a particular protocol requires a factual hearing on (a) the risks and quantity of pain inherent that protocol, (b) the number of executions that will share that protocol, and (c) the latest state of technology and science on reasonably available alternatives and safeguards. It's sort of Learned Hand's Carroll Towing formula as an Eighth Amendment standard.

  I highly doubt the Supreme Court will adopt this test, as it seems too obviously to be a recipe for endless litigation. That's certainly understandable; if you're counsel for the defendant, a day of litigation means a day without an execution. But it's not a very workable test, for lots of reasons; most obviously, it hinges on how courts characterize protocols and whether they group them together or see each slightly different practices as defining distinct protocols. And the idea of measuring risk by aggregating risks of all the other people who have or might be executed under a particular protocol strikes me as rather strange. Why is it relevant what other states do? And how can you sum up all the risks given that the frequency of a protocol being used presumably must be based on a prediction about future choices of the many different states — and the condemned, in states that offer individuals the choice of method of execution — in future decades?

  Anyway, that's my sense of the case. What's going to happen in the case is anyone's guess. If I had to guess — and this is really just a wild guess — I would guess that (a) there will be no one majority opinion, but (b) the controlling opinion will allow this particular execution based on the details of the record and give lots of guidance to push other states to improve their practices. That won't really answer the constitutional question, but it will kick the ball down the road for a few years.

  Finally, I realize the death penalty is a controversial topic, but please keep comments civil and presume good faith in your fellow discussants (and in your blogger, for that matter).