Maryland Law Review
Volume 68, Issue 2
Baze v. Rees: Merging Eighth Amendment Precedents into a New Standard for Method of Execution Challenges
By Molly E. Grace [Full Text]
In Baze v. Rees, the Supreme Court of the United States considered whether Kentucky’s three-drug lethal injection protocol violated the Eighth Amendment to the United States Constitution. The Court upheld the protocol as constitutional, holding that the risk of pain from improper administration of the protocol and Kentucky’s failure to implement proposed alternatives did not constitute cruel and unusual punishment. Led by Chief Justice Roberts, a plurality of the Court concluded that a method of execution is unconstitutional if (1) it presents a “substantial risk of serious harm” or an “objectively intolerable risk of harm”; or (2) a state refuses to adopt alternative procedures that are “feasible, readily implemented,” and will “significantly reduce a substantial risk of severe pain.” In separate opinions, Justice Thomas and Justice Ginsburg proposed alternative tests, while Justice Stevens advocated an end to the death penalty.
In creating its test, the plurality merged three lines of the Court’s Eighth Amendment jurisprudence by adopting part of its conditions of confinement test, reinterpreting language from its method of execution cases, and implicitly invoking its evolving standards of decency doctrine. While the Court’s decision to uphold Kentucky’s protocol will promote more uniformity among lower courts, the plurality’s standard will also help guide the judiciary to ensure that the executive and legislative branches of state governments continue to create more humane lethal injection protocols in the future.
Citation: Molly E. Grace, Note, Baze v. Rees: Merging Eighth Amendment Precedents into a New Standard for Method of Execution Challenges, 68 Md. Law Rev. 430 (2009).
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