Why Baze v. Rees Should Not Lead to Endless Litigation:
I was interested to see over at Capital Defense Weekly that Deborah Denno and other death penalty critics expect Baze v. Rees to lead to lots of additional capital litigation. I tend to disagree. To see why, let's take a look at the key passage of Baze in Chief Justice Roberts' plurality opinion:
The alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State's refusal to change its method can be viewed as "cruel and unusual" under the Eighth Amendment. . . . A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.
  As I read this passage, the existing three-drug protocol is constitutional unless the defendant both demonstrates a substantial risk of pain in his own case and also proves that there is a "feasible, readily implemented" alternative that "in fact significantly reduce[s] a substantial risk of severe pain." That means that if a court holds a protocol unconstitutional, it can't do so in the abstract: It has to say exactly what procedure can replace it.

  The requirement that the defendant prove a specific alternative should effectively keep Baze from generating endless litigation. It will force defendants to argue a very specific alternative: Don't kill me like that, kill me like this. If a state wants to litigate the issue and loses, the court will not enjoin the execution but rather will just order the state to execute the person in the different but also "feasible" and "readily implemented" way the defendant has proposed. And the state always has the option of eliminating the issue as a delay tactic: It can always cut off the litigation by just agreeing to the defendant's alternative method of execution.

  This is quite different from method-of-execution claims brought before Baze. In the past, the idea was that the three-drug protocol was unconstitutional but what should replace it was left open. Instead of having a specific alternative, the court was supposed to spend months or even years of study and hearings to determine what should replace it (during which there would be a moratorium on executions). This made states dig in their heels: They had no incentive to change their protocols because the defendants would just claim that the new standard was also unconstitutional.

  That's no longer true post-Baze. Win or lose, the states will have a specific protocol to follow and the executions will go forward.
PatHMV (mail) (www):
I hope you're right, Orin, but I'm not yet convinced.

What does "known and available" mean? If the protocol is the only protocol prescribed by statute, can a different protocol ever be considered "available"? If one proves that a vastly less risky alternative is "known," but such protocol is not a legal method of execution in that state, can an injunction be granted pending adoption by the state of that new, known method of execution?

Beyond that, has the ex post facto issue involving changing methods of execution ever been resolved? I recall that several states, in order to reduce the risk of litigation, didn't get rid of electrocution entirely, but instead gave the option to the prisoner to be executed under the law in effect at the time of the crime or under the new law. If the law is changed to make available a new method of execution, and we determine that the old method (whether electrocution or the current protocol) is unconstitutional because another one is somehow both known and "available," must we then relitigate that ex post facto issue?
4.17.2008 7:07pm
Rod Blaine (mail):
Can't they simply get Dr Jack Kevorkian to perform the executions? We hear all the time about how humane, dignified and peaceful the process it is when it's he who performs the honours. Granted, his patients are willing (or at least unable to protest), whereas Death Row inmates would be struggling against the needle, but if that's the problem with the process, then volenti non fit injuria.

The idea of making a complainant suggest a workable, demonstrably better alternative to the legislature's Authorized Version is a good idea. It would have avoided a hell of a lot of trouble during the Reapportionment Cases of the 1960s and '70s, for example. ("So the Legislature's proposed electoral boundaries depart by 1% from strict mathematical equality? Fine - go away and draw your own set of districts that vary by less than 1%. Your deadline is 28 days.") It would help screen out the nuisances and special-pleaders from those who have identified a genuine constitutional shortfall in the law.
4.17.2008 7:17pm

Known and available presumably means specific and easy to implement; nothing that courts would have to struggle to implement or understand. (Available couldn't mean "offered under state law," or else the standard would be pretty meaningless.) And that eliminates any ex post facto issue, at least if I understand your concern,
4.17.2008 7:20pm
What are the pleading requirements for these claims?

As a lawyer, you should know that any opinion that even slightly opens the door, which these does, will generate claims.

What's to stop death row inmates from filing frivilous claims anyway, Rule 11?
4.17.2008 7:32pm
George Weiss (mail) (www):
since nearly 30 states use the exact method described in baze, and the justices have clearly said that that particular method passes the standard-what more could there be to litigate about the procedure 8th amendment wise unless the states are silly enough to change procedures now?

Of course, there are a few states that use other procedures, and those procedures will now be litigated under Baze.

on the other hand-i cant really agree with orin's interpretation of a "known and available alternative" that clearly is substantially less painful etc.. etc.. as meaning "not a struggle to implement"

isn't any new standard of execution, in our day in age a "struggle to implement."

In order to change a method of execution in our day and age, even if the method would be offered under state law, your going to have to get the executive to change the method. Their not going to change anything until there have been million dollar commissions, studies, and public debate. They arn't going to change anything until every public interest group has been able to loudly protest or support the method.

I cant think of anything that more politically financially and administratively difficult to implement than an execution method in the united states.
4.17.2008 7:47pm

Of course claims will be filed! As a lawyer, you should obviously know that there was no way of stopping claims no matter what standard the court adopted. The question is how quickly courts will dispense of them. I am assuming you knew this much; my apologies if I was ahead of you here.
4.17.2008 7:48pm
Orin, can an inmate request execution via the state-prescribed method for euthanizing pets by animal control? Such a method can be implemented trivially (just call the vet up and ask him) and has a demonstrably lower risk of unnecessarily pain.

The only hard part is the "demonstrated risk" of serious pain, which, IMO, has been established by the use of paralytics. A proper execution cocktail should not require paralytics.
4.17.2008 7:48pm
Soronel Haetir (mail):
My problem with this argument is the cases I've already seen. There was one a couple years ago where an inmate was challenging the specifics of the IV insertion method. I would say he met the requirements for being known, available and substaintially less prone to causing undo pain. I don't recall whether he prevailed or not, but even on that issue the state fought long and hard.

Another issue I see that was demonstrated in this case, states are extremely reluctant to provide the details of their execution protocols. Beyond just the drugs used there are many details.

Would be nice if the state could just divert some siezed heroin and give the condemned a hot shot.
4.17.2008 7:48pm
PatHMV (mail) (www):
Orin, that's my point. I think what you say is probably what Justice Roberts intended, but I think it will take a fair amount of litigation to decide that "available" does not have any reference to what state law allows.

And it still leaves the problem I raised. For the sake of the hypothetical, let's say a state says that "the sole method of execution shall be by electrocution." The defense, relying on CJ Robert's opinion, alleges that lethal injection poses a substantially reduced risk of causing unnecessary pain to the condemned man, that it is known and clearly available. Let us assume for the sake of argument that the Chief's standard is thereby met; the prisoner has shown an available, easy to implement alternative. But, state law does not allow for execution by lethal injection. What result? A temporary delay of execution until the state amends its statute (and does that raise ex post facto concerns)? An order that effectively amends the word "electrocution" out of the state's statute and replaces it with "lethal injection"?
4.17.2008 7:50pm
PatHMV (mail) (www):
I use the electrocution example so as to avoid coming up with some hypothetical new method of execution which would cause less risk of unnecessary pain than lethal injection. The point is the same.
4.17.2008 7:53pm
Soronel Haetir (mail):
My other problem here is not so much with the written protocol but its implementation. How many preceeding deviations must the challenger show before the risk moves from incidental to substantial?

Just because the words look good on paper doesn't mean that a particular state does a good job in following through on them. I understand that this is a factor that actually worked in Ky's favor, but I could see it cutting the other way in some other state.
4.17.2008 7:56pm
c.f.w. (mail):
"Orin, can an inmate request execution via the state-prescribed method for euthanizing pets by animal control? Such a method can be implemented trivially (just call the vet up and ask him) and has a demonstrably lower risk of unnecessarily pain."

From what I have heard, this "use the vet procedure" is what the Morales folks put on the table before Fogel. CA declined.

Another issue air-brushed out as far as I can tell is who does the killing? AMA says not our folks. PA's and nurses in CA are barred by their professional groups, I believe.

KY procedure is what in terms of using ethically un-conflicted and competent folks? If KY can free up an MD for the work, but CA cannot, does that make the CA procedure non-conforming with the KY procedure?

And what makes the 3-judge Roberts opinion the most persuasive word, or the only word we should consider, on this "what might we allow or disallow in a future case" point?

Kennedy/Breyer/Ginsburg/Souter/Stevens might not be on board if KY used an MD plus 3-drug cocktail and CA rejected the vet procedure plus expert administrator (versus CA 3-drug cocktail and non-MD administrator). Horror stories to date have been connected to bad administration, as often as not, I gather.

The Roberts "reach out" to hypothetical next cases seems to border on dicta, given the flaky KY record versus the more elaborate record available in other LI cases (such as Morales).
4.17.2008 8:32pm
Also, for Roberts supposedly being a minimalist and wanting the law to be clear, has there even a more vague holding?

He manages to use 3 modifiers in one sentence: significantly, substanial and severe and goes on to say that even if those aren't met, the state can still go ahead as long as it has a "legitimate" penological justification.

All 4 of those phrases could well mean 50 diffrent things to 50 different Judges nationwide. Certainly I think some judges on the 9th circuit might interpret it differently than those on the 5th.

I think he could have found a better and more clear way to gget the holding across. Although, as I read this, he's basically saying that the new standard is similar to strict scrutiny as it's used in other contexts.

IOW, the burden for the prisoner will pretty much be the same as the burden for the state in overcoming strict scrutiny in an equal protection or 1st amendment case.
4.17.2008 8:42pm
advisory opinion:
". . . can an inmate request execution via the state-prescribed method for euthanizing pets by animal control? Such a method can be implemented trivially (just call the vet up and ask him) and has a demonstrably lower risk of unnecessarily pain."

Read Alito's concurrence on why it is not "trivial".
4.17.2008 11:15pm
Dave Hardy (mail) (www):
I suppose the mess might also be a consideration. One could guarantee that a 12 gauge to tbe base of the skull would be 100% painless and instantaneous, but it would make a lot of work for the janitors.
4.17.2008 11:37pm
Read Alito's concurrence on why it is not "trivial".
Let's just say that he failed to convince me. Let's take a very simple approach: the inmate wants a huge overdose of a short-acting barbiturate. The state already has it on hand at the prison, no medical knowledge is necessary to implement it and the drug will certainly lead to rapid death. Please identify the non-trivial part.

Also, Alito's utter contempt for the medical community is not helping his case.
4.17.2008 11:38pm

Roberts' opinion answers most of your questions. Why is it the binding opinion? Because it's the binding rule under a Marks analysis. As for the existence of horror stories, that's why the Supreme Court took the case: This is their answer to the horror stories.
4.18.2008 1:04am
advisory opinion:
"Please identify the non-trivial part."

The non-trivial part is the due process requirement that only "person or persons licensed by the State of California to inject medications intravenously" for a sodium thiopenthal execution be allowed to do so. See Morales v. Tildon (ND Cal. 2006). As Alito notes, "modification of a lethal injection protocol cannot be regarded as 'feasible' or 'readily' available if the modification would require participation — either in carrying out the execution or in training those who carry out the execution - by persons whose professional ethics rules or traditions impede their participation" (emphasis added). A modification to the protocol is accordingly "non-trivial," because it is neither feasible or readily available under the existing procedural requirements.

And clearly, you haven't read the concurrence with any degree of comprehension. Alito's "contempt" for the medical community involves taking into account their ethical scruples that he "certainly do[es] not question"? And his "contempt" involves deferring to the Chief's and Breyer's view that there is no unanimity on the efficacy of a single drug protocol? Certainly, this "contempt" extends to the medical amicus for the petitioners, who states that "it's actually very difficult to kill someone with just a big dose of a barbiturate." And that euthanasia in the Netherlands (where it is legal) is routinely carried out with multiple-drug rather than single-drug protocols for that very reason.

I think the "contempt" for the medical community is your own.
4.18.2008 1:26am
PatHMV (mail) (www):
Also, what happens if the phlebotomists' professional association suddenly decides to prohibit THEM from participating in executions, too? I imagine any professional whose profession involves being able to start IVs belongs to some sort of professional association with ethical requirements. What happens if the current method of execution becomes "unfeasible" under Justice Alito's explanation?

Additionally, I'm not entirely sure I understand why the AMA's policy makes it "unfeasible" for doctors to participate. Are state medical licensing rules such that AMA membership is required in order to hold a state license to practice medicine? Or is the AMA just a voluntary membership organization? The state could easily pass a law stating that no doctor shall have his license revoked for participating in an execution. What if a defendant shows that there ARE doctors out there who would be willing to perform the procedure as long as state law protected their license. Would that then make a physician-participation requirement "feasible"?

I'm sorry, Orin, but you're far from persuading me that this solves the problem in any significant way.
4.18.2008 2:10am
Soronel Haetir (mail):
If this case is their answer to the horror stories it answers the questions by saying the stories aren't horrible enough.
4.18.2008 2:34am
ao, I thought Alito makes it quite clear that he regards the AMA as primarily responsible for the lack of a qualified medical method of execution.
4.18.2008 3:42am
advisory opinion:
No, he does not. That is your personal gloss on it, and an inaccurate one at that: the ANA and EMT associations are similarly mentioned (the AMA is therefore not "primarily" the cause of anything), and Alito explicitly says that he "certainly do[es] not question" their ethical rules, let alone foist "responsibility" on them. Your hyperbolic gloss is not a substitute for legal argument.

Since you seem more interested in the various ways of twisting what Alito said rather than engaging on the substance, there probably is not much point to continuing this discussion.
4.18.2008 4:57am
Brad Ford (mail):
1. Reading the decision, I think every state will adopt the Kentucky procedures. If challenged, they have ruling by the Sup Ct that it is fine.

2. States will never "just agree" to any means proposed by the defendants. If they did, their employees could suffer mental get involved in "botched" procedures proposed by the defendants. Heck, someone might want to die by guillitine?
4.18.2008 10:47am
Michael J.Z. Mannheimer (mail):

Since you invoke the Marks rule, I wonder what you think of an interesting exchange that, fittingly enough, took place on Wednesday during the oral argument of Kennedy v. Louisiana. This came after recognition that Justice White wrote only for a plurality in Coker v. Georgia. Justice Ginsburg was questioning Petitioner's attorney Jeffrey Fisher on Justice Powell's opinion concurring in the judgment, which she seemed to read as providing the critical fifth vote pursuant to Marks. The following exchange took place as a result:

MR. FISHER: Well, my understanding of this Court's Marks rule is that the narrowest opinion that commands a majority --so Justice Powell's opinion was actually a seventh vote. If you count the two Justices on this Court who held the death penalty was unconstitutional across the board and add the four that constituted the plurality in Coker, we think the plurality opinion becomes -


MR. FISHER: -- the controlling one.

JUSTICE SCALIA: That's strange way of making a majority, isn't it?


JUSTICE SCALIA: Two people who think even the death penalty for murder is no good, they're going to form the majority of people who consider whether a lawful death penalty can be imposed for rape. I think at least in those circumstances, you have to discount the people who would not allow the death penalty under any circumstances for any crime.

MR. FISHER: Well, I'm not aware of any wrinkle in this Court's jurisprudence that says that if a Justice is too far out of the mainstream that their vote is discounted.


MR. FISHER: But I want to try to -

JUSTICE SCALIA: He -- he is not considering
the issue that is before the Court. The issue before
the Court is whether -- whether a permissible death penalty can be imposed for this crime. These parties say there's no such thing as a permissible death penalty. I mean, it would be -- if that wrinkle isn't there, we should iron it in pretty quickly.


Justice Scalia's reasoning has some heft to it. For example, Ronald J. Allen &Kristin Mace, The Self-Incrimination Clause Explained and Its Future Predicted, 94 J. CRIM. L. &CRIMINOLOGY 243, 274-76 (2004), have suggested that the issue of whether the notorious "sixth birthday question" from Pennsylvania v. Muniz called for a testimonial response was not resolved by a majority of the Court. This is because Justice Marshall, who provided the crucial fifth vote for the judgment that the answer was inadmissible, did so on the ground that he believed that all of the evidence in that case -- even the results of Muniz's field sobriety tests, which were clearly non-testimonial under the Court's precedents -- was inadmissible because it was not preceded by Miranda warnings and waiver.

Back to Baze: isn't one valid reading of the various opinions that Justices Stevens and Breyer, insofar as they address the method-of-execution issue, provide the fourth and fifth votes? After all, by Justice Scalia's reasoning: "Two people," Justices Scalia and Thomas, "who think" recklessly or even knowingly causing pain and suffering during execution is not an Eighth Amendment violation, "they're going to form the majority of people who consider" how substantial a risk of pain and suffering during an execution violates the Eighth Amendment. "I think at least in those circumstances, you have to discount the people who would not allow" an Eighth Amendment challange regardless of the substantiality of the risk of pain and suffering. Such a Justice "is not considering
the issue that is before the Court."

Your thoughts?
4.18.2008 1:11pm
Dilan Esper (mail) (www):
By the way, am I the only one who gets the feeling reading Alito's concurrence that he agrees with Stevens that the death penalty may be unconstitutional and just thinks this is not the right case to say it?
4.18.2008 2:59pm
David M. Nieporent (www):
Dilan: yes.

He certainly doesn't sound like it here:
An "untoward" risk is presumably a risk that is "unfortunate" or "marked by or causing trouble or unhappiness." Webster's Third New International Dictionary 2513 (1971); Random House Dictionary of the English Language 1567 (1967). This vague and malleable standard would open the gates for a flood of litigation that would go a long way toward bringing about the end of the death penalty as a practical matter. While I certainly do not suggest that this is the intent of the Justices who favor this test, the likely consequences are predictable.
4.20.2008 6:09pm