Baze v. Rees

(Slip Opinion) OCTOBER TERM, 2007 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus BAZE ET AL. v. REES, COMMISSIONER, KENTUCKY DEPARTMENT OF CORRECTIONS, ET AL. CERTIORARI TO THE SUPREME COURT OF KENTUCKY No. 07–5439. Argued January 7, 2008—Decided April 16, 2008 Lethal injection is used for capital punishment by the Federal Govern- ment and 36 States, at least 30 of which (including Kentucky) use the same combination of three drugs: The first, sodium thiopental, in- duces unconsciousness when given in the specified amounts and thereby ensures that the prisoner does not experience any pain asso- ciated with the paralysis and cardiac arrest caused by the second and third drugs, pancuronium bromide and potassium chloride. Among other things, Kentucky’s lethal injection protocol reserves to qualified personnel having at least one year’s professional experience the re- sponsibility for inserting the intravenous (IV) catheters into the pris- oner, leaving it to others to mix the drugs and load them into sy- ringes; specifies that the warden and deputy warden will remain in the execution chamber to observe the prisoner and watch for any IV problems while the execution team administers the drugs from an- other room; and mandates that if, as determined by the warden and deputy, the prisoner is not unconscious within 60 seconds after the sodium thiopental’s delivery, a new dose will be given at a secondary injection site before the second and third drugs are administered. Petitioners, convicted murderers sentenced to death in Kentucky state court, filed suit asserting that the Commonwealth’s lethal injec- tion protocol violates the Eighth Amendment’s ban on “cruel and un- usual punishments.” The state trial court held extensive hearings and entered detailed factfindings and conclusions of law, ruling that there was minimal risk of various of petitioners’ claims of improper administration of the protocol, and upholding it as constitutional. The Kentucky Supreme Court affirmed, holding that the protocol does not violate the Eighth Amendment because it does not create a substantial risk of wanton and unnecessary infliction of pain, torture, 2 BAZE v. REES Syllabus or lingering death. Held: The judgment is affirmed. 217 S. W. 3d 207, affirmed. CHIEF JUSTICE ROBERTS, joined by JUSTICE KENNEDY and JUSTICE ALITO, concluded that Kentucky’s lethal injection protocol satisfies the Eighth Amendment. Pp. 8–24. 1. To constitute cruel and unusual punishment, an execution method must present a “substantial” or “objectively intolerable” risk of serious harm. A State’s refusal to adopt proffered alternative pro- cedures may violate the Eighth Amendment only where the alterna- tive procedure is feasible, readily implemented, and in fact signifi- cantly reduces a substantial risk of severe pain. Pp. 8–14. (a) This Court has upheld capital punishment as constitutional. See Gregg v. Georgia, 428 U. S. 153, 177. Because some risk of pain is inherent in even the most humane execution method, if only from the prospect of error in following the required procedure, the Consti- tution does not demand the avoidance of all risk of pain. Petitioners contend that the Eighth Amendment prohibits procedures that create an “unnecessary risk” of pain, while Kentucky urges the Court to ap- prove the “ ‘substantial risk’ ” test used below. Pp. 8–9. (b) This Court has held that the Eighth Amendment forbids “punishments of torture, . . . and all others in the same line of unnec- essary cruelty,” Wilkerson v. Utah, 99 U. S. 130, 136, such as disem- boweling, beheading, quartering, dissecting, and burning alive, all of which share the deliberate infliction of pain for the sake of pain, id., at 135. Observing also that “[p]unishments are cruel when they in- volve torture or a lingering death[,] . . . something inhuman and bar- barous [and] . . . more than the mere extinguishment of life,” the Court has emphasized that an electrocution statute it was upholding “was passed in the effort to devise a more humane method of reach- ing the result.” In re Kemmler, 136 U. S. 436, 447. Pp. 9–10. (c) Although conceding that an execution under Kentucky’s pro- cedures would be humane and constitutional if performed properly, petitioners claim that there is a significant risk that the procedures will not be properly followed—particularly, that the sodium thiopen- tal will not be properly administered to achieve its intended effect— resulting in severe pain when the other chemicals are administered. Subjecting individuals to a substantial risk of future harm can be cruel and unusual punishment if the conditions presenting the risk are “sure or very likely to cause serious illness and needless suffer- ing” and give rise to “sufficiently imminent dangers.” Helling v. McKinney, 509 U. S. 25, 33, 34–35. To prevail, such a claim must present a “substantial risk of serious harm,” an “objectively intoler- able risk of harm.” Farmer v. Brennan, 511 U. S. 825, 842, 846, and Cite as: 553 U. S. ____ (2008) 3 Syllabus n. 9. For example, the Court has held that an isolated mishap alone does not violate the Eighth Amendment, Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 463–464, because such an event, while re- grettable, does not suggest cruelty or a “substantial risk of serious harm.” Pp. 10–12. (d) Petitioners’ primary contention is that the risks they have identified can be eliminated by adopting certain alternative proce- dures. Because allowing a condemned prisoner to challenge a State’s execution method merely by showing a slightly or marginally safer alternative finds no support in this Court’s cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in im- plementing execution procedures, petitioners’ proposed “unnecessary risk” standard is rejected in favor of Farmer’s “substantial risk of se- rious harm” test. To effectively address such a substantial risk, a proffered alternative procedure must be feasible, readily imple- mented, and in fact significantly reduce a substantial risk of severe pain. A State’s refusal to adopt such an alternative in the face of these documented advantages, without a legitimate penological justi- fication for its current execution method, can be viewed as “cruel and unusual.” Pp. 12–14. 2. Petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested al- ternatives, constitute cruel and unusual punishment. Pp. 14–23. (a) It is uncontested that failing a proper dose of sodium thiopen- tal to render the prisoner unconscious, there is a substantial, consti- tutionally unacceptable risk of suffocation from the administration of pancuronium bromide and of pain from potassium chloride. It is, however, difficult to regard a practice as “objectively intolerable” when it is in fact widely tolerated. Probative but not conclusive in this regard is the consensus among the Federal Government and the States that have adopted lethal injection and the specific three-drug combination Kentucky uses. Pp. 14–15. (b) In light of the safeguards Kentucky’s protocol puts in place, the risks of administering an inadequate sodium thiopental dose identified by petitioners are not so substantial or imminent as to amount to an Eighth Amendment violation. The charge that Ken- tucky employs untrained personnel unqualified to calculate and mix an adequate dose was answered by the state trial court’s finding, substant