Wednesday, April 16, 2008

Executions and Abortions

The Supreme Court today handed down Baze v. Rees, holding that the three-drug "cocktail" used by Kentucky and the vast majority of other lethal injection states to perform executions, does not pose a sufficiently "substantial risk of serious harm." If a method of execution, when properly carried out, is humane, then it does not become categorically inhumane, the plurality opinion (by CJ Roberts joined by Kennedy and Alito) said, merely because there exists "a slightly or marginally safer alternative."

There are numerous interesting aspects to this case (and I'll be talking about some of them with Nina Totenberg on NPR later today), but here I'll just flag one---the connection with a case the Court does not cite: Gonzales v. Carhart, last year's decision upholding the federal Partial Birth Abortion Ban Act. There, recall, the argument was made by the plaintiffs that the Act was unconstitutional for its failure to include a health exception, and that in some circumstances an "intact D & E" (the method of abortion banned by the Act) was the safest. The Court's opinion---as well as Justice Kennedy's dissent in the earlier partial-birth abortion case, Stenberg v. Carhart, which effectively became the law in Gonzales v. Carhart---indicates that an abortion is not medically necessary simply because it is the safest method, so long as the alternative methods are not, objectively, unsafe.

Taken together, Gonzales v. Carhart and Baze v. Rees thus appear to stand for the proposition that the Court---or at least the conservative majority---will give substantial deference to government decisions about what constitutes a risk to health or a risk of terrible pain, even when those decisions are not made on strictly medical grounds.

Posted by Mike Dorf

17 comments:

egarber said...

If a method of execution, when properly carried out, is humane, then it does not become categorically inhumane, the plurality opinion (by CJ Roberts joined by Kennedy and Alito) said, merely because there exists "a slightly or marginally safer alternative."

Not having read the ruling, suppose it turns out that procedure X is so difficult to carry out properly that "as applied", half of applications cause undue suffering? Would that create grounds for a ban, or would any review only come on a case-by- case due process basis? Of course, case-by-case, it would be too late for the sufferer.

Sobek said...

egarber, I'm still working through the opinion, but the plurality allows for a challenge to an execution method where the proposed alternative is 1) feasible, 2) readily implemented, and 3) significantly reduces a substantial risk of severe pain.

If a state's method involves a fifty percent fail rate, I believe it would fail under the Baze standard because we have methods with much better rates.

Perhaps more importantly, in upholding Kentucky's law, the Court stressed all of the safeguards against failure (while conceding that failures may and sometimes do happen), including trained phlebotomists, detailed dosage instructions, and the presence of observers.

egarber said...

Good info Sobek -- thanks a bunch!

Sobek said...

Prof. Dorf said: "...even when those decisions are not made on strictly medical grounds."

That may be the case with Carhart (I say "may," because the case is not completely clear), but I disagree as to Baze. The plurality relied heavily on expert medical testimony to the effect that Kentucky's procedure is as good as it gets. Roberts acknowledged some split of authority (as did Breyer, in his surprisingly candid concurrence). But the existence of dissenting medical opinions does not suggest that a decision is not made on medical grounds.

egarber, as a follow-up to my previous, I just commented elsewhere that Roberts' formulation is probably the best avenue for new challenges by death penalty opponents, although perversely so. If a petitioner can think up a new execution method which satisfies all three criteria, it will force legislatures back to the drawing board, but in the long run it makes pro-penalty arguments more air tight.

Still, a short term victory might be desireable to penalty opponents simply on a "running out the clock" theory. The Dems have a reasonable shot at winning the White House this year, are virtually guaranteed to keep the Senate, and could replace as many as four Justices over the next eight years. During that time, litigators could conceivable strike down the death penalty altogether.

Michael C. Dorf said...

What I meant by "medical grounds:" It's true that CJ Roberts credits the district court's findings re medical risks, etc., but, as Stevens notes in his concurrence in the judgment and as Roberts essentially concedes as well, the inclusion of the paralytic as the middle step in the cocktail is primarily there for aesthetic reasons. The only wrinkle here is the fact that the Dutch include it in their physician-assisted-suicide protocol, but neither Roberts nor Alito (who also relies on this fact in his concurrence) quite figures out why.

Sobek said...

Breyer also mentions the Dutch protocol, and argues (persuasively, I think) that it's hard to argue a drug is cruel or unusual when it is taken voluntarily who want to end their lives (and who, one might presume, don't want to do so agonizingly).

Question: Breyer mentions his consultation of medical journals (a Lancet study and various refutations thereof) that are not in the record. To what extent should judges go outside of the record to conduct their own, independent research? We don't allow juries to do that.

andy said...

"it's hard to argue a drug is cruel or unusual when it is taken voluntarily who want to end their lives (and who, one might presume, don't want to do so agonizingly)."

just for the sake of being difficult...since a lot of people jump off of building to kill themselves, would it not be cruel and unusual to execute prisoners by throwing them off of skyscrapers?

Sobek said...

"...since a lot of people jump off of building to kill themselves..."

But it's not state-sanctioned euthenasia when someone jumps off a building. Still, point taken.

Michael C. Dorf said...

On the Dutch point: I've been doing some digging with medical professionals and found that the Dutch use of pancuronium bromide is so different as to be practically irrelevant. I'll explain why in my FindLaw column for Monday.

Garth Sullivan said...

why not the guillotine?

fast, efficient and presumably painless?

egarber said...

Moving over to the rape case -- where two men face the death penalty in LA, I'm curious:

How would an originalist decide that case? Supposedly, it could turn on whether raping a child rather than an adult crosses some bright line. Does that moral test mean anything to an originalist? Or would he/she simply look to see if rape was a qualifying offense in 1790? Hmmm. I guess in a way I'm simply asking how originalists view the eighth amendment generally.

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