Supreme Court Upholds Execution Protocol: The Supreme Court handed down Baze v. Rees this morning, upholding the three-drug protocol. The opinion is here. I have to hit the road, unfortunately, so I won't be able to blog more on it right away, but it looks like the vote was ultimately 7-2 to allow the protocol. At the same time, he Court was splintered as to the rationale: There was no majority opinion on exactly what the correct standard is for the constitutionality of execution protocols. My sense is that under the Marks rule, however, the Roberts plurality opinion can be treated as the Court's binding opinion. But that's just based on a quick skim. More later, when I'm back at my computer.
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Must-Read Scalia Opinion

Justice Scalia's concurring opinion in Baze v. Rees is a must-read. Responding to Justice Steven's newly-minted view that the death penalty is now somehow always a violation of the Eighth Amendment, Justice Scalia marshals the arguments in favor of retribution and deterrence (citing Sunstein & Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 Stan. L.Rev. 703, 706 (2006), among other sources). His opinion concludes powerfully:

But actually none of this really matters. As Justice STEVENS explains, “ ‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’ ” Ante, at 14 (quoting Atkins v. Virginia, 536 U.S. 304, 312, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); emphasis added; some internal quotation marks omitted). “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional. Ante, at 17 (emphasis added).

Purer expression cannot be found of the principle of rule by judicial fiat. 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.” Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. 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.” Ante, at 11. 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.

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Amen.

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Thoughts on Baze v. Rees: I finally have Internet access again, and I wanted to blog some thoughts on yesterday's fascinating opinions in Baze v. Rees.

  First, I thought the Roberts plurality opinion, which is the binding decision under the Marks rule, is a pretty sensible solution to the problem. As I read it, it basically says that as long as states are reasonably careful there is no chance of an Eighth Amendment issue. If you're a state official, you pretty much just need to copy Kentucky's version of the protocol and you'll be fine. I thought this was a fairly sensible patch of minimalist middle ground, as it pushes states to do better but shouldn't lead to endless litigation.

  On the whole, I'm not surprised with this outcome. It's pretty much where I expected the Court to be on this issue back in 2006 when I tried to predict what the Supreme Court would do when they reached it. Whether Judge Fogel in California will get the message remains to be seen.

  The Stevens concurring opinion is certainly a throwback to an earlier age. I think Scalia's response was devastating, as the Stevens opinion does seem remarkably uninterested in distinguishing good policy from what the Constitution demands. Perhaps the most puzzling line in Stevens' concurrence was his statement that the Supreme Court's decisions "retain[ing] the death penalty as a part of our law" have been "the product of habit and inattention." The Supreme Court is inattentive to the death penalty like college guys are inattentive to women and beer.

  The natural comparison to Stevens' concurrence is Justice Blackmun's "no longer tinkering with the machinery of death" opinion in Callins v. Collins in 1994. In case you're wondering, Justice Blackmun published that opinion at the age of 84 after 24 years on the Court. He resigned from the Court about four months later. Justice Stevens published his opinion at the age of 87 (a few days shy of 88), after 32 years on the Court.

  Finally, I thought Justice Thomas's concurring opinion offered a pretty powerful originalist argument. As originally understood, the Eighth Amendment really did speak to these issues, and I thought Thomas did an important service by exploring that understanding in detail. Of course, what you make of Thomas's perspective depends largely on what you think of originalism, as well as what you make of modern Eighth Amendment jurisprudence. It was interesting to compare Thomas's analysis to how Justice Ginsburg dealt with the Court's method-of-execution precedents in her dissent: "Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time."

  A final thought. Both this case and Medellin v. Texas are the kinds of cases that are tricky for a Chief Justice to write in a way that keeps Justice Kennedy on board. In both cases, Chief Justice Roberts succeeded; AMK joined JGR in full and did not write separately.
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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.
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A Judge's Right to Speak ... Versus Getting Things Right

Over at Concurring Opinions, my thoughtful colleague Alice Ristroph wonders why I was willing to criticize Justice Stevens' opinion in Baze v. Rees without mentioning that he ultimately voted to uphold the death sentence in that case. She wonders: "Is the argument that a judge musn’t even say that he thinks a practice violates the constitution, even if he is then going to recognize and follow precedents to the contrary?"

Perhaps I could have been clearer in my earlier post, but I have no problem with any judge expressing their point of view of constitutional or other issues. I did that a few times myself as a judge, as Ristroph points out. My problem with Justice Stevens' views that the death penalty is (now) unconstitutional (and I think Orin's as well) is that Stevens is simply wrong on the merits. Judges certainly have a right to speak on legal issues ... but they should be be right on those issues.

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