Perpetuating the Constitutional Uncertainty of Lethal Injection Protocols: A Comment on Baze v. Rees

Ryan Ellersick, Perpetuating the Constitutional Uncertainty of Lethal Injection Protocols: A Comment on Baze v. Rees, 44 Gonz. L. Rev. 553 (2009).

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I. Introduction

In the thirty years since the United States Supreme Court ended the moratorium on capital punishment, the federal government and the states have put over 1000 people to death.[1] Many of those individuals were executed by lethal injection, the current method of choice for the federal government and thirty-six of the thirty-seven states that authorize the death penalty.[2] While lethal injection as a method of execution is presumptively humane,[3] the manner in which it is performed has raised strong objections.[4] Most lethal injection protocols employ a three-drug combination designed to put the inmate into a state of unconsciousness and paralysis prior to administration of the drug that ultimately causes death.[5] However, many inmates and death penalty opponents claim that the inherent risk in these protocols—namely, that the first drug will not induce adequate unconsciousness, thereby allowing the inmate to languish in a paralyzed state of excruciating pain resulting from administration of the final drugs—violates the Eighth Amendment’s prohibition against “cruel and unusual punishments.”[6] Unfortunately, the Supreme Court “has not directly addressed the constitutionality of a method of execution since 1878,”[7] leaving the lower courts in a state of confusion regarding the proper standard for reviewing inmates’ claims.[8]

In Baze v. Rees, the Supreme Court sought to dispel uncertainty among the lower courts by articulating a standard for assessing the constitutionality of a lethal injection protocol.[9] In a 7-2 decision, the Supreme Court upheld Kentucky’s lethal injection protocol[10] against the challenge of two death row inmates who argued the protocol presented an “unnecessary risk” of inflicting excruciating pain.[11] Despite the nearly unanimous decision of the Court, only three Justices supported the standard that ultimately emerged in the plurality opinion.[12] The proper standard for reviewing the constitutionality of execution procedures, according to the plurality, turned on whether the protocol posed a “substantial risk of serious harm” that could be “significantly reduce[d]” by “alternative procedure[s]” that were “feasible” and “readily implemented.”[13] “If a State refuse[d] to adopt such an alternative . . . without a legitimate penological justification . . . then a State’s refusal to change its method [could] be viewed as ‘cruel and unusual’ under the Eighth Amendment.”[14] %CODE2%
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The plurality opinion was flawed in two ways. First, internal inconsistencies and undefined key language left the substance of the plurality’s standard open to divergent interpretations in the lower courts.[15] Second, because the plurality’s standard only won support from three of the nine Justices on the Court, the precedential value of the standard itself remains questionable.[16] As a result, the opinion provides inadequate guidance for the lower courts, thereby undermining the very purpose for which the Supreme Court granted certiorari.[17]

This comment begins by providing a brief history of the Supreme Court’s Eighth Amendment jurisprudence, along with a short discussion of the state of the law directly prior to the Court’s decision in Baze. It then provides context for the plurality’s standard by discussing the litigants’ proposed standards and the various other standards advocated by the Justices on the Court. Finally, this comment analyzes the weaknesses in the plurality opinion in light of the Court’s intention of providing a clear standard for the lower courts and the potential effects of the Court’s failure to deliver on its intentions.

II. Historical Background

The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[18] The prohibition against “cruel and unusual punishments” is “applicable to the States through the Due Process clause of the Fourteenth Amendment.”[19] As Eighth Amendment jurisprudence developed in the courts, it splintered into two distinct paths: one line of cases focused on methods of execution and the death penalty generally, and the other dealt with conditions of confinement.[20] While the Court’s conditions-of-confinement jurisprudence was fleshed out over time through in-depth treatment,[21] the method-of-execution jurisprudence failed to evince a coherent, workable test.[22]

The Supreme Court’s first encounter with a method-of-execution challenge came in 1878 in Wilkerson v. Utah.[23] The Wilkerson Court rejected the argument that death by firing squad “constituted cruel and unusual punishment.”[24] However, rather than articulate a clear standard for assessing the merits of future method-of-execution challenges, the Court simply stated, “it is safe to affirm that punishments of torture,
. . . and all others in the same line of unnecessary cruelty, are forbidden.”[25]

Twelve years later, in In re Kemmler, the Court was presented with an Eighth Amendment challenge stemming from New York’s attempt to carry out the nation’s first electrocution.[26] The Kemmler Court dismissed the challenge and refused to incorporate and apply the Eighth Amendment to the states.[27] In dicta, however, the Court observed that “[p]unishments are cruel when they involve torture or a lingering death”[28] and the Eighth Amendment concept of cruelty “implies . . . something more than the mere extinguishment of life.”[29]

The Court did not directly encounter another method-of-execution case until 1947 in Louisiana ex rel. Francis v. Resweber.[30] In Resweber the State sought to re-administer an electrocution after the first electrocution did not result in the inmate’s death.[31] The inmate argued that a second attempt at execution would violate the Eighth Amendment.[32] In a plurality opinion,[33] the Court rejected the inmate’s argument stating that the Constitution’s prohibition against cruel punishments did not protect against “the necessary suffering involved in any method employed to extinguish life humanely.”[34] The plurality stated that an “unforeseeable accident,” such as the failed electrocution, did not implicate the Eighth Amendment’s prohibition on cruelty, especially where there was no “purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution.”[35] While the plurality’s statement built on what was becoming a common theme—that the Constitutional prohibition on cruelty was only implicated where a method of execution resulted in the intentional infliction of pain beyond that necessary to cause death[36]—the opinion’s precedential value was capped because of the case’s “unique” facts and the Court’s 4-1-4 split.[37]

In 1972, the Supreme Court heard Furman v. Georgia, which presented a different kind of challenge that went directly to the constitutionality of the death penalty itself.[38] While the Court did not hold the death penalty to be unconstitutional per se, it rejected Georgia’s death penalty statute as written,[39] thereby perpetuating the nationwide moratorium on executions that had begun a few years earlier in 1968.[40] However, just four years after Furman, a plurality of the Court, in Gregg v. Georgia, rejected the notion that the death penalty itself constituted cruel and unusual punishment.[41] The plurality stated that punishment violated the Eighth Amendment when it was “excessive.”[42] Punishment was not “excessive” if there was no “unnecessary and wanton infliction of pain” and if the punishment inflicted was not “grossly out of proportion to the severity of the crime.”[43]

Because the plurality opinion in Gregg was limited to resolving the constitutionality of the death penalty itself, the Court’s specific method-of-execution jurisprudence remained undeveloped.[44] Indeed, in the nearly one hundred years since Wilkerson, the Court had addressed the method-of-execution issue just a handful of times,[45] and often only in a plurality[46] or in dicta.[47]

Meanwhile, the Supreme Court’s Eighth Amendment conditions-of-confinement jurisprudence had taken shape through frequent, in-depth treatment in the Court’s opinions.[48] In particular, the confinement cases provided a framework for assessing the constitutionality of risks of cruel and unusual punishment, as opposed to the actual infliction of such punishment.[49] For example, in Helling v. McKinney, an inmate argued that the risk of health problems resulting from exposure to his cell-mate’s excessive cigarette smoke violated the Constitution’s prohibition against cruel and unusual punishment.[50] The Court determined that the inmate had a cognizable claim under the Eighth Amendment if the conditions of confinement presented “an unreasonable risk of serious damage to his future health.”[51] In another confinement case, Farmer v. Brennan, the Court further clarified the standard for assessing future risks of harm, stating that an inmate must show a “substantial risk of serious harm” or an “objectively intolerable risk” in order to obtain relief.[52] While not directly related to the method-of-execution cases, the language derived from the confinement opinions would eventually prove helpful in analyzing the risks of harm associated with specific execution procedures.[53]

Following the Supreme Court’s 2006 ruling in Hill v. McDonough, which provided death row inmates an avenue for challenging their executions under 42 U.S.C. § 1983 (2008), [54] lethal injection litigation began to inundate the courts.[55] Inmates based their Eighth Amendment challenges on the risk involved in the widely used three-drug execution protocol.[56] Each three-drug protocol began with a dose of “sodium thiopental[,] . . . a fast-acting barbiturate sedative that induce[d] a deep, comalike unconsciousness . . . .”[57] The second drug, pancuronium bromide, was administered to induce a state of paralysis and terminate respiration.[58] Finally, potassium chloride was injected, causing cardiac arrest.[59] So long as the first drug was administered properly, an inmate would not experience any pain from administration of the second and third drugs.[60] However, if some error occurred during the administration of the first drug that prevented the inmate from attaining sufficient unconsciousness, he or she would experience “excruciating pain” that would be “effectively undetectable” due to the paralysis caused by the second drug.[61] With the risk of such maladministration in mind, inmates quickly took advantage of the new path to the court system carved out by Hill.[62]

In the wake of these challenges, lower courts struggled to articulate the applicable method-of-execution standard from Supreme Court precedents.[63] As a result, disparate standards emerged, and inmates found their fate depending largely on a jurisdiction’s interpretation of the law rather than the merits of their cases.[64] The Ninth Circuit adopted a standard which provided that a lethal injection protocol was cruel and unusual when it posed “an unnecessary risk of unconstitutional pain or suffering.”[65] The Eighth Circuit asked whether there was a “substantial foreseeable risk that the inmate [would] suffer the unnecessary or wanton infliction of pain.”[66] The Tenth Circuit’s standard disregarded the risk analysis altogether and merely asked whether the procedures “‘involve[d] the unnecessary and wanton infliction of pain.’”[67] Similar disparities plagued state supreme courts as well, as they also struggled to extract the appropriate standard from outdated and obscure method-of-execution precedents.[68] As challenges to lethal injection protocols continued to overwhelm the lower courts with no sign of abating, the time became ripe for the United States Supreme Court to articulate a clear standard.[69]

III. Competing Standards

Because the Supreme Court precedents did not lend themselves to any clear standard,[70] it was open season for both the parties and the Justices in Baze to propose their own views of the law. While some of the proposed standards closely resembled each other, distinguished only by subtle nuances,[71] others were diametrically opposed.[72] However, what they all had in common was the underlying purpose of infusing desperately needed clarity into the process of reviewing inmates’ Eighth Amendment challenges.[73]

A. Inmate-Petitioners

Under the petitioners’ proposed standard, a lethal injection protocol violated the Constitution if it created an “‘unnecessary risk’” of pain.[74] To determine if the risk was unnecessary, a court would balance three factors: (1) “‘the severity of pain risked’”; (2) “‘the likelihood of that pain occurring’”; and (3) “‘the extent to which alternative means [were] feasible, either by modifying existing execution procedures or adopting alternative procedures.’”[75] Because the factors were weighed against each other, the “quantum of risk necessary to make out [a] . . . claim [would] vary according to the severity of the pain and availability of alternatives.”[76] However, in order to “trigger Eighth Amendment scrutiny” the risk would have to be at least “‘significant.’”[77] In short, “[a]n execution procedure create[d] unnecessary risk where, taken as a whole, it present[ed] a significant risk of causing severe pain that could be avoided through the use of a reasonably available alternative or safeguard.”[78]

B. Respondents, the State of Kentucky

Under the respondents’ standard, a lethal injection protocol violated the Constitution only if it presented a “‘substantial risk’” of pain.[79] This standard differed from that of petitioners in that it only took into account the quantum of risk that pain would occur, without regard to the severity of pain or whether alternative procedures were available.[80] Under this standard, the Kentucky Supreme Court had rejected the petitioners’ claims finding that the risk inherent in the lethal injection protocol was not “substantial.”[81] Respondents argued that such a standard promoted certainty by filtering out frivolous claims while still providing a mechanism for challenging truly deficient protocols that raised “substantial risk[s].”[82]

C. Justice Ginsburg and Justice Souter’s Dissent

Justice Ginsburg, joined by Justice Souter, argued in the dissent that a lethal injection protocol would violate the Constitution if it “create[d] an untoward, readily avoidable risk of inflicting severe and unnecessary pain.”[83] To determine if an “untoward risk” existed, a court would have to balance the three factors presented in the petitioners’ standard.[84] However, the dissent’s approach was different from petitioners’ standard because, instead of imposing a threshold requirement that the risk of pain be at least “significant,” [85] the dissent’s standard had no threshold concerning degree of risk.[86] As such, under the dissent’s standard, an inmate could trigger Eighth Amendment review by simply showing that readily available alternative procedures would materially decrease the risk of pain, regardless of whether the risk was significant or not.[87]

D. Justice Thomas and Justice Scalia’s Concurrence

According to Justice Thomas, joined by Justice Scalia, “a method of execution violate[d] the Eighth Amendment only if it [was] deliberately designed to inflict pain.”[88] In classic Thomas rhetoric, he resolved that “[w]e have neither the authority nor the expertise to micromanage the States’ administration of the death penalty . . . .”[89] Pursuant to these principles, a challenge to lethal injection protocols became an “easy case,” for the simple reason that lethal injections were “designed to eliminate pain rather than to inflict it.”[90]

E. Chief Justice Roberts’s Plurality Opinion

Chief Justice Roberts, writing for the plurality, determined that the proper standard turned on whether a claim demonstrated a “‘substantial risk of serious harm’” that could be “significantly reduced” by readily available alternatives.[91] At first blush, the plurality’s standard strongly resembled that of petitioners; indeed, the same three factors—the risk of harm, the severity of pain, and the availability of alternatives—were present in both standards.[92] Also as in the petitioners’ standard, the plurality set a threshold requirement that the risk of pain be at least “substantial” before triggering Eighth Amendment scrutiny.[93]

However, the plurality’s standard was different from petitioners’ standard in at least two ways. First, a “substantial” risk purportedly created a higher threshold requirement than a “significant” risk because a “substantial” risk would be “‘considerable,’” while a “significant” risk would be merely “‘important.’”[94] Second, unlike with petitioner’s standard, not just any alternative was sufficient to compel a State to change its protocol; the plurality required the alternative to “significantly reduce a substantial risk.”[95] Furthermore, even if the risk was substantial and an alternative was available to significantly reduce that risk, under the plurality’s standard, a State could still avoid changing its protocol if it had “a legitimate penological justification.”[96] The plurality concluded that “[a] State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that” violates the Eighth Amendment.[97]

IV. Analysis

When the Supreme Court heard Baze, the objective was to articulate a clear Eighth Amendment standard for resolving method-of-execution claims.[98] Challenges to lethal injection protocols had become one of the most frequently litigated issues, and there was significant confusion among the lower courts on the appropriate standard to be applied.[99] Indeed, a much more significant dilemma than the typical circuit split existed in the lower courts; multiple standards that were materially different had emerged, subjecting death row inmates to a deadly luck of the draw on their Eighth Amendment challenges.[100]

In light of these concerns, the Court’s attempt to generally homogenize the divergent standards was certainly appropriate. In addition to stabilizing the semi-chaotic situation, however, the Court also had an interest in providing a clear and workable Eighth Amendment standard so that lower courts would not become “embroil[ed]”[101] in the minutiae of comparing alternative lethal injection procedures.[102] The standard had to be one that not only avoided stimulating “litigation gridlock,”[103] but also prevented the courts from becoming “boards of inquiry charged with determining ‘best practices’ for executions.”[104]

Nevertheless, the plurality failed in its objective to provide a clear standard for two related reasons. First, internal inconsistencies and undefined key language obscured the substance of the plurality’s standard, leaving it open to divergent interpretations.[105] Second, because the plurality standard only won support from three of the nine Justices, the precedential value of the standard itself remains questionable.[106]

A. An Obscure Standard

The plurality opinion failed in its attempt to provide clarity to Eighth Amendment death penalty jurisprudence, in part, because the opinion contained internal inconsistencies and undefined language. To be sure, lower courts are equipped to resolve inconsistencies and define terms in a Supreme Court opinion.[107] That the plurality failed to provide a clear standard of review in Baze does not presuppose that lower courts are unable to fill in the gaps. However, this critique rests on the assumption that because of the inconsistencies and undefined terms, lower courts will fill in the gaps in disparate ways, which will lead to divergent results. This assumption, while debatable, finds its basis in the history of the lower courts’ struggle to adopt a consistent Eighth Amendment standard concerning methods of execution.[108]

Further, this critique has considerable merit when viewed in light of the Court’s expressed intention of providing, what one Justice called, “a bright-line rule”[109] for the lower courts.[110] Indeed, that a Supreme Court opinion contains minor inconsistencies or undefined language does not necessarily mean that the opinion is flawed. However, where “a bright-line rule” is intended and within reach, anything that falls short of that aspiration suggests serious deficiencies.

1. Internal Inconsistencies

While the plurality could be criticized for relying on cases with questionable precedential value[111] or cases that only tangentially supported the construction of its standard,[112] such reliance was likely justified in light of the dearth of controlling precedent.[113] As noted previously, it was necessary to adopt language from the Court’s conditions-of-confinement jurisprudence in order to supplement the Court’s outdated and obscure method-of-execution jurisprudence.[114] In doing so, the plurality adopted key language from the confinement cases to help evaluate the risk of future pain.[115]

The plurality’s use of the language, however, was inconsistent throughout the opinion, leaving lower courts to guess at the appropriate threshold requirement for triggering Eighth Amendment review. For example, at the outset, the plurality indicated that there must be “a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm.’”[116] Under this standard, either a “substantial risk of serious harm” or an “objectively intolerable risk” would apparently suffice to tip the “risk of harm” factor in an inmate’s favor even though the plurality did not expressly indicate this to be the case.[117] The plurality later indicated, however, that a lethal injection protocol must create “a demonstrated risk of severe pain.”[118] Additionally, the plurality stated that in order to be actionable, “the conditions presenting the risk must be ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’”[119]

In its conclusion, the plurality hinted at an additional component of the standard, stating that “what the [Eighth] Amendment prohibits is wanton exposure to ‘objectively intolerable risk.’”[120] According to the plurality, if a state “adopt[ed] safeguards to protect against [risks],” the state’s protocol could not “be viewed as probative of the wanton infliction of pain under the Eighth Amendment.”[121] The reference to “wanton,” while not defined by the plurality, suggested that the Court was retaining a semblance of the intent requirement that had been expressed in the Court’s earliest method-of-execution cases.[122] Indeed, an intent requirement would comport with the plurality’s statement indicating that an inmate must also demonstrate that the challenged protocol is “‘cruelly inhumane.’”[123]

Accordingly, the plurality’s inconsistent reference to various standards left important questions unanswered.[124] Specifically, it is unclear whether inmates must show only a substantial or objectively intolerable risk or whether they also must prove a demonstrated risk of pain that gives rise to “sufficiently imminent dangers” in order to meet the threshold requirement.[125] Furthermore, even if the requisite quantum of risk is present, it is also unclear whether inmates must present evidence of a risk of the wanton infliction of pain to the point where a protocol could be considered “cruelly inhumane.”[126]

Additional inconsistencies emerged from the plurality’s discussion concerning how courts should analyze competing execution procedures to determine if a particular method of execution is unconstitutionally cruel. The plurality highlighted the complications involved in having courts participate in a comparative analysis each time a new alternative procedure came to light.[127] For one thing, having lower courts engage in this type of quasi-legislative analysis would force courts to go “beyond their expertise” and “would substantially intrude on the role of state legislatures.”[128] Moreover, as noted in Justice Alito’s concurrence, requiring courts to assume that role presents a threat of clogging the judicial system with inmates’ claims.[129]

In spite of these concerns, the plurality adopted a form of comparative analysis as part of its standard.[130] Apparently cognizant of this inconsistency, the plurality clarified that any comparative analysis would be appropriate only after a claim reached the threshold requirement, thereby ensuring that such instances would be infrequent.[131] However, the plurality’s assurances stood in contradiction to its subsequent statement that an inmate “must show that [a] risk [of pain] is substantial when compared to the known and available alternatives.”[132] This statement indicated that in assessing the quantum of risk attendant to a particular method of execution as a threshold matter, courts should compare the risks of one procedure with those of alternative procedures.[133] In other words, courts would be forced to become “boards of inquiry”[134] in the first instance, rather than only in the final analysis.

2. Undefined Key Terms

In addition to lacking consistency in its attempts to articulate a standard for resolving inmates’ method-of-execution challenges, the plurality also failed to adequately define the operative language of its adopted standard. As first-year law students approach the final days of a semester, madly preparing for exams, professors often remind them to define key terms when discussing rules of law in their answers. Indeed, this fundamental step in legal writing is drilled into law students’ minds from the very beginning. It is unclear, then, why the plurality would attempt to articulate a standard consisting of multiple vague terms, without offering guidance on how those terms ought to be defined. Justice Thomas observed this shortcoming. Like a diligent law professor looking over the exams of first-year students, he inquired of the plurality’s standard: “At what point does a risk become ‘substantial’? Which alternative procedures are ‘feasible’ and ‘readily implemented’? When is a reduction in risk ‘significant’? What penological justifications are ‘legitimate’?”[135] An outside commentator offered the further query: what is “‘[s]ubstantially similar’” for purposes of determining whether another state’s protocol is close enough to Kentucky’s protocol to avoid Eighth Amendment scrutiny?[136]

At the outset, the plurality’s failure to expound on the meaning of a “substantial risk” creates particular difficulties because the petitioners proposed a nearly identical “significant risk” threshold requirement.[137] Both standards served to quantify the risk of pain occurring in executions as an initial threshold matter.[138] However, only the petitioners made an effort to distinguish the two terms, arguing that “significant” implied a lower degree of risk than “substantial.”[139] Thus, further guidance is needed from the Court on what separates a “significant risk”—which does not trigger Eighth Amendment review—from a “substantial risk”—which may trigger review; otherwise, lower courts will be left to wade through such semantics blindfolded.[140]

Even assuming a court was able to make such a fine distinction for purposes of practical application, the plurality did not indicate “[a]t what point . . . a risk become[s] ‘substantial’” for purposes of Eighth Amendment scrutiny.[141] The plurality also failed to specify whether the risks posed by a given protocol should be assessed individually, or whether a substantial risk could be found in the cumulative impact of risks inherent in a given protocol.[142] The plurality’s only explanation of substantial risk suggested that the risk of “an isolated mishap alone” was not substantial.[143] Therefore, based on the language of the plurality’s opinion, a lower court could determine that “substantial” implies a higher degree of risk than “significant” and still not have an answer as to how substantial a risk must be to trigger Eighth Amendment scrutiny.[144] Also, even if the precise quantum of evidence were susceptible to definition, it is unclear whether the substantial risk can derive from the execution protocol in its totality or whether each isolated step of the protocol must rise to the level of a substantial risk.

Accordingly, to answer the question of how substantial a risk must be to trigger review, courts will be forced to engage in a detailed comparison between the Kentucky protocol, which the plurality determined did not present a sufficiently substantial risk,[145] and the state execution protocol being contested.[146] One of the plurality’s goals in articulating its standard, however, was to avoid laborious comparisons because of the likelihood that such a task would clog the court system and stretch the judiciary beyond its expertise.[147] In attempting to reach this goal, the plurality failed.

Another difficulty exists in attempting to determine which alternative procedures are sufficiently “feasible” and “readily implemented”[148] to compel states to assimilate such procedures into their execution protocols. The petitioners proposed, as an alternative, that the state abandon its three-drug protocol in favor of a single-drug protocol consisting of a barbiturate only.[149] They proposed the additional alternative of abandoning the second drug in the protocol, which served to paralyze an inmate, so that maladministration of the first drug could be more readily detected.[150] Finally, the petitioners proposed the use of monitoring equipment, such as a blood pressure cuff, to more effectively “monitor the ‘anesthetic depth’ of the prisoner.”[151] Ultimately, the plurality determined that petitioners’ proposed alternatives failed to compel Kentucky to adopt the procedures.[152] However, while the plurality noted deficiencies in each proposed alternative, it did not articulate whether the alternatives failed because they were not feasible, not readily implemented, or simply because the procedures did not significantly reduce the risk of harm.[153] Accordingly, a meaningful definition of these terms can only be ascertained through the type of detailed comparisons that the plurality intended to avoid.[154]

The plurality also neglected to provide necessary clarification on the meaning of “substantially similar”[155] following its conclusion that “[a] State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.”[156] Not only did this phrase raise questions similar to those addressed above with regard to giving practical meaning to the term “substantial,” it also implicated a much more in depth comparative analysis between states’ lethal injection protocols.[157] Kentucky’s execution protocol, for example, was equipped with a number of safeguards and formal, detailed procedures.[158] Exactly how closely would another state’s protocol have to resemble Kentucky’s in order to be deemed “substantially similar”? And, perhaps more importantly in terms of judicial economy, how is a court to make that determination? Invariably, the lower courts will be forced to assume a role that the plurality did not intend in order to answer these questions.[159]

A recent Fourth Circuit case, Emmett v. Johnson,[160] illustrates the difficulties lower courts may face in determining whether an execution protocol is “substantially similar” to the one upheld in Baze. The inmate in Emmett challenged Virginia’s lethal injection protocol, making many of the same arguments that the petitioners in Baze had raised.[161] Virginia, like Kentucky, employed a three-drug protocol consisting of the exact same drugs and many of the same safeguards.[162] However, Virginia’s protocol was different in at least three ways: first, Virginia administered only two grams of the barbiturate, while Kentucky used three grams; second, Virginia administered all three drugs one after another, while Kentucky briefly waited to inject the second drug to ensure adequate injection of the barbiturate; and third, Virginia had no backup-line for injection of additional barbiturate in case the first two grams were insufficient, while Kentucky’s protocol required a backup-line.[163] After assessing the similarities and differences between the two protocols, the judges on the panel arrived at different results.[164] The two-judge majority found the differences little more than “minor variations,” insufficient to preclude a finding of substantial similarity between Virginia’s and Kentucky’s protocols.[165] The dissenting judge, on the other hand, saw Virginia’s lethal injection scheme as presenting “glaring differences” which raised doubts about the protocol’s constitutionality.[166] With nothing more than the single, undefined phrase from Baze—“substantially similar”—to guide the Fourth Circuit judges,[167] it was not surprising that the same detailed, comparative analysis yielded different results.[168]

Asking the Court to define its key terms and phrases does not imply a need for the Court to be overly paternalistic. In fact, the Court has taken upon itself the duty of clarifying key language in prior Eighth Amendment case law.[169] For example, in Farmer, the confinement case from which the plurality adopted its “substantial risk” and “objectively intolerable risk” language,[170] the Court’s actual holding pertained to resolving a circuit split over the meaning of “deliberate indifference.”[171] Because that phrase functioned as an essential component of the standard employed by lower courts in addressing conditions-of-confinement challenges, the Court saw the need to clarify the phrase’s meaning.[172] After analyzing its own precedents and the holdings of various circuit courts, the Court concluded that the test for deliberate indifference was the same as that for recklessness.[173] However, the Court further instructed that recklessness was not “self-defining” and that the phrase had different meanings in the civil and criminal contexts.[174] Ultimately the Court equated the test for deliberate indifference with that of recklessness under the criminal law, noting that its conclusion was “based on the Constitution and [the Supreme Court’s] cases, not merely on a parsing of the phrase ‘deliberate indifference.’”[175]

Unfortunately, no such clarifications accompanied the plurality’s opinion in Baze. Because the plurality “left the States with nothing resembling a bright-line rule,”[176] clarifications of the type provided in Farmer will likely become necessary as lower courts move in different directions. In the meantime, lower courts will be forced to parse the various undefined phrases in the plurality’s opinion in order to avoid the detailed comparisons of execution protocols that are sure to invite “litigation gridlock.”[177]

B. The Precedential Value of the Plurality Opinion

While the substance of the plurality’s standard was unnecessarily left open to disparate interpretations,[178] the precedential value of the plurality opinion itself also remains questionable. Plurality opinions, by their very nature, lend themselves to confusion since, as defined, “[p]lurality decisions . . . are those in which a majority of the Court agrees upon the judgment but not upon a single rationale to support the result.”[179] With no clear consensus in reasoning, lower courts are faced with the difficult task of determining which opinion, if any, commands controlling authority.[180]

The Supreme Court offered some limited assistance in resolving this dilemma with its decision in Marks v. United States,[181] which articulated a standard to help the lower courts “glean the precedents from plurality decisions.”[182] Under the so-called Marks doctrine, “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .’”[183] The Marks doctrine has not, however, received a ringing endorsement from the Court itself,[184] let alone the lower courts charged with interpreting plurality decisions.[185] This lack of acceptance provokes further confusion as courts not only struggle to ascertain the precedential value of plurality opinions, but also dispute the application of the Marks doctrine in making that determination.[186]

The Marks doctrine would seem to indicate that Justice Roberts’s plurality opinion represents the holding of the Court in Baze because Justice Thomas and Justice Scalia “concurred [in the judgment] on broader grounds.”[187] But Justice Thomas’s concurrence evinced particular disdain for the plurality’s standard, rejecting it “both as unprecedented and unworkable.”[188] This deeply rooted disagreement may bring Baze within the class of cases in which there is no “lowest common denominator” upon which the Court can agree, rendering the Marks doctrine “more easily stated than applied.”[189] Indeed, when confusion persists in the lower courts, even as aided by Marks, the Supreme Court may “bypass the Marks doctrine” and “reconsider the issue” in order to provide “better guidance.”[190] One option in that situation provides that “[w]hen the current members of the Court are not convinced that the plurality precedent is desirable substantive law, they discard it.”[191]

If the Marks doctrine proves unhelpful to the lower courts and the issue in Baze is reconsidered, there is some risk that the plurality’s standard will be discarded because only three of the nine Justices believe it to be desirable substantive law. Only Justice Roberts, Justice Kennedy, and Justice Alito agreed on the standard which became the plurality opinion.[192] Justice Thomas and Justice Scalia adopted the “deliberate infliction of pain” standard.[193] Justice Ginsburg and Justice Souter, writing in the dissent, formed their own test.[194] Justice Breyer, who concurred in the judgment, actually adopted the dissent’s standard.[195] Justice Stevens adopted no standard but instead argued that the Court should reconsider the constitutionality of the death penalty itself.[196]

Accordingly, the Court’s breakdown was as follows: three Justices for the plurality’s standard; three Justices for the dissent’s standard; two Justices for the “deliberate infliction of pain” standard; and Justice Stevens, who was not persuaded one way or the other.[197] Assuming the same makeup of the Court in subsequent cases, a dead tie would result between the proponents of the dissent’s standard and the proponents of the plurality’s standard.[198] Justice Thomas and Justice Scalia’s strong objections to both approaches would likely preclude either side from co-opting the two Justices.[199] Justice Stevens, on the other hand, may prove more susceptible to the dissent’s approach, considering the allegations that the dissent’s standard would “bring[] about the end of the death penalty as a practical matter”[200]—a result which Stevens may find preferable to the status quo.[201] Of course, a shift by Justice Stevens to the dissent’s standard would still not produce a majority opinion, though it would at least weigh in favor of discarding the plurality’s standard. In any case, the insecurity surrounding the plurality opinion runs the risk of promoting greater confusion among the lower courts as they struggle to ascertain the precedential value of Baze.

V. Conclusion

Prior to the Court’s decision in Baze, the law was in a state of disarray regarding the proper standard of review to be applied in method-of-execution cases.[202] The Supreme Court precedents were obscure, outdated, and of questionable precedential value.[203] In an effort to clarify the appropriate standard, the Court accepted Baze for review[204] but only managed to issue a plurality opinion.[205] This opinion was fraught with internal inconsistencies and vague terms that shined little light on how the new standard was to be applied in the lower courts.[206] Additionally, because the opinion only won support from three Justices, the stability and future value of the opinion itself is left open for debate.[207]

As one commentator suggested in the wake of the Court’s opinion, “[w]e will end up largely where we were before Baze.”[208] Indeed, although the Court had the opportunity to take a large stride by adopting a coherent and workable standard, it seems to have taken only a baby step. And for inmates on death row, smaller steps toward a clear death penalty standard mean a longer walk to the execution chamber.

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* J.D. candidate, Gonzaga University School of Law, expected matriculation May 2010. I would like to thank the editors and staff of Gonzaga Law Review for their excellent feedback and editorial contributions in preparing this comment for publication. I would also like to thank my wife Stephanie for her continued love and support.

[1]. See Tracy L. Snell, Bureau of Justice Statistics, Prisoners Executed Under Civil Authority in the United States, by Year, Region, and Jurisdiction, 1977-2008 (2008), http://www.ojp.usdoj.gov/bjs/data/exest.csv (last visited Jan. 29, 2009).

[2]. See Baze v. Rees, 128 S. Ct. 1520, 1526-27 & n.1 (2008) (plurality opinion) (noting that thirty-eight states have authorized the death penalty; that New Jersey repealed its death penalty law in 2007, reducing the total number of states that authorize the death penalty to thirty-seven states currently; and noting that Nebraska and New York effectively no longer enforce the death penalty due to state court judicial decisions declaring their death penalty laws unconstitutional).

[3]. See id. at 1530 (quoting Brief for Petitioners at 31, Baze, 128 S. Ct. 1520 (No. 07-5439), 2007 WL 3307732); see also Brief for Petitioners at 27, Baze, 128 S. Ct. 1520 (No. 07-5439).

[4]. See, Note, A New Test for Evaluating Eighth Amendment Challenges to Lethal Injections, 120 Harv. L. Rev. 1301, 1301-04 (2007) (describing the recent “explosion” of challenges to the manner in which lethal injections are performed).

[5]. Baze, 128 S. Ct. at 1527.

[6]. Compare A New Test, supra note 4, at 1302-06 (noting that there have been many Eighth Amendment challenges to this three-drug lethal injection protocol), with U.S. Const. amend. VIII (proscribing “cruel and unusual punishments”).

[7]. Petition for Writ of Certiorari at 8, Baze, 128 S. Ct. 1520 (No. 07-5439), 2007 WL 2781088.

[8]. See Petition for Writ of Certiorari, supra note 7, at 8-9; see also Workman v. Bredesen, 486 F.3d 896, 906 (6th Cir. 2007) (noting that Supreme Court cases since 1878 have not reached the merits in deciding whether a method of execution is unconstitutional).

[9]. Cf. Baze, 128 S. Ct. at 1542 (Stevens, J., concurring in the judgment) (noting that Baze was supposed to resolve the debate concerning the constitutionality of lethal injections).

[10]. Id. at 1525 (plurality opinion authored by Roberts, C.J.; joined by Kennedy and Alito, J.J.); id. at 1542 (Stevens, J., concurring in the judgment); id. at 1552 (Scalia and Thomas, J.J., concurring in the judgment); id. at 1563 (Breyer, J., concurring in the judgment); id. at 1567 (Ginsburg and Souter, J.J., dissenting).

[11]. Id. at 1529 (plurality opinion).

[12]. See id. at 1525 (plurality opinion authored by Roberts, C.J.; joined in by Kennedy and Alito, J.J.).

[13]. Id. at 1532 (quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994)).

[14]. Id.

[15]. See id. at 1562 (Thomas, J., concurring in the judgment) (opining that the plurality’s standard used many undefined and vague terms).

[16]. See Joseph M. Cacace, Plurality Decisions in the Supreme Court of the United States: A Reexamination of the Marks Doctrine After Rapanos v. United States, 41 Suffolk U. L. Rev. 97, 99 (2007) (describing the effect of plurality opinions on how lower courts and litigants interpret the issues); see also Adam Liptak, Moratorium May Be Over, But Hardly the Challenges, N.Y. Times, Apr. 17, 2008, at A26 (noting that many legal experts believe that the plurality’s opinion would result in a new round of litigation), available at http://www.nytimes.com (search Challenges Remain for Lethal Injection).

[17]. See Baze, 128 S. Ct. at 1542 (Stevens, J., concurring in the judgment) (noting that Baze was supposed to resolve the debate concerning the constitutionality of lethal injections).

[18]. U.S. Const. amend. VIII.

[19]. Baze, 128 S. Ct. at 1529 (plurality opinion) (citing Robinson v. California, 370 U.S. 660, 666 (1962)).

[20]. See Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L. Rev. 319, 321-22 (1997) (describing the clear split in the Supreme Court’s treatment of the two types of cases); cf. Farmer v. Brennan, 511 U.S. 825, 832-34 (1994) (describing the evolution of the Eighth Amendment in the confinement cases without reference to the execution cases).

[21]. See Denno, supra note 20, at 345-48.

[22]. See id. at 323-24.

[23]. A New Test, supra note 4, at 1306 (citing Wilkerson v. Utah, 99 U.S. 130 (1878)).

[24]. Baze, 128 S. Ct. at 1530 (citing Wilkerson, 99 U.S. at 134-35).

[25]. Id. (quoting Wilkerson, 99 U.S. at 136) (internal quotations omitted).

[26]. See Brief for the Fordham Univ. Sch. of Law, Louis Stein Ctr. for Law and Ethics as Amicus Curiae In Support of Petitioners at 7-8, Baze, 128 S. Ct. 1520 (No. 07-5439), 2007 WL 3407041 (citing In re Kemmler, 136 U.S. 436, 447 (1890)).

[27]. See In re Kemmler, 136 U.S. at 446-49; see also Denno, supra note 20, at 334.

[28]. In re Kemmler, 136 U.S. at 447; see Baze, 128 S. Ct. at 1567-68 (Ginsburg, J., dissenting); A New Test, supra note 4, at 1307.

[29]. In re Kemmler, 136 U.S. at 447.

[30]. See A New Test, supra note 4, at 1307 (citing Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 460-61 (1947) (plurality opinion)).

[31]. See Resweber, 329 U.S. at 460.

[32]. See id. at 461.

[33]. Id. at 460 (plurality opinion authored by Reed, J.; joined by Vinson, C.J., and Black and Jackson, J.J.).

[34]. Id. at 464.

[35]. See id.

[36]. See Baze v. Rees, 128 S. Ct. 1520, 1560-61 (Thomas, J., concurring in the judgment).

[37]. See A New Test, supra note 4, at 1307-08 (suggesting other factors that diminish Resweber’s precedential value, including inter alia, that it was decided prior to the Eighth Amendment’s application to the States).

[38]. See 408 U.S. 238, 239 (1972).

[39]. See Gregg v. Georgia, 428 U.S. 153, 168-69 (1976) (plurality opinion) (presenting an overview of the opinions issued in Furman, 408 U.S. 238).

[40]. See Amnesty International, United States of America: The Death Penalty 9, 13 (1987) (“By 1968, a number of key cases affecting the death penalty statutes of various states were awaiting decisions by the US Supreme Court, and this led to the unofficial moratorium on executions after 1967.”); see also Baze, 128 S. Ct. at 1526 (noting that there was a nine year moratorium on executions that ended in 1976).

[41]. Gregg, 428 U.S. at 169 (plurality opinion).

[42]. Id. at 173.

[43]. Id.

[44]. See Baze, 128 S. Ct. at 1568 (Ginsburg, J., dissenting) (noting that Gregg addressed “capital punishment in the abstract”).

[45]. See Denno, supra note 20, at 321 & n.3.

[46]. See supra note 37 and accompanying text (noting that Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), was decided in a 4-1-4 split).

[47]. See supra note 28 and accompanying text (noting that In re Kemmler, 136 U.S. 436 (1890), addressed methods of execution only in dicta).

[48]. See Denno, supra note 20, at 345-48.

[49]. See, e.g., Farmer v. Brennan, 511 U.S. 825, 834, 846-47 (1994).

[50]. See 509 U.S. 25, 28 (1993).

[51]. See id. at 35.

[52]. 511 U.S. at 834, 846-47.

[53]. See, e.g., Baze v. Rees, 217 S.W.3d 207, 211-13 (Ky. 2006) (adopting the “substantial risk” standard), aff’d, 128 S. Ct. 1520 (2008).

[54]. See Hill v. McDonough, 547 U.S. 573, 579-80 (2006).

[55]. A New Test, supra note 4, at 1301.

[56]. Id. at 1302-04.

[57]. Baze v. Rees, 128 S. Ct. 1520, 1527 (2008) (plurality opinion).

[58]. See id.

[59]. See id.

[60]. Id. at 1530.

[61]. See id. at 1567, 1569 (Ginsburg, J., dissenting).

[62]. See A New Test, supra note 4, at 1302-04.

[63]. See Petition for Writ of Certiorari at 15, Baze, 128 S. Ct. 1520 (No. 07-5439), 2007 WL 2781088.

[64]. See id. at 19-20.

[65]. See Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004).

[66]. See Taylor v. Crawford, 487 F.3d 1072, 1085 (8th Cir. 2007).

[67]. Hamilton v. Jones, 472 F.3d 814, 816 (10th Cir. 2007) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)).

[68]. See Petition for Writ of Certiorari at 15-16, Baze, 128 S. Ct. 1520 (No. 07-5439).

[69]. See id. at 15-17 (describing the different standards employed by state and federal courts, and opining that setting a clear standard was of the utmost importance).

[70]. Baze, 128 S. Ct. at 1568 (Ginsburg, J., dissenting). But see id. at 1560 (Thomas, J., concurring in the judgment) (arguing that the Supreme Court precedents evince a clear standard that only prohibits the “intentional infliction of gratuitous pain”).

[71]. Compare Baze, 128 S. Ct. at 1537 (plurality opinion) (requiring “a demonstrated risk of severe pain,” which “is substantial when compared to the known and available alternatives,” to prove that a method of execution is cruel and unusual), with id. at 1568-69, 1572 (Ginsburg, J., dissenting) (requiring “an untoward, readily avoidable risk of inflicting severe and unnecessary pain” to prove that a method of execution is cruel and unusual).

[72]. Compare Baze, 128 S. Ct. at 1537 (plurality opinion) (requiring “a demonstrated risk of severe pain,” which “is substantial when compared to the known and available alternatives,” to prove that a method of execution is cruel and unusual), with id. at 1560 (Thomas, J., concurring in the judgment) (opining that a method of execution is cruel and unusual only when it involves the “intentional infliction of gratuitous pain”).

[73]. See infra Part III.A-E.

[74]. Baze v. Rees, 128 S. Ct. 1520, 1529 (2008) (plurality opinion) (quoting Brief for Petitioners at 38, Baze, 128 S. Ct. 1520 (No. 07-5439), 2007 WL 3307732).

[75]. Baze, 128 S. Ct. at 1529 (quoting Brief for Petitioners at 38, Baze, 128 S. Ct. 1520 (No. 07-5439)).

[76]. Baze, 128 S. Ct. at 1529 (citing Reply Brief for Petitioners at 23-24, Baze, 128 S. Ct. 1520 (No. 07-5439), 2007 WL 4618321).

[77]. Baze, 128 S. Ct. at 1529 (quoting Brief for Petitioners at 40, Baze, 128 S. Ct. 1520 (No. 07-5439); Reply Brief for Petitioners at 26, Baze, 128 S. Ct. 1520 (No. 07-5439)).

[78]. Brief for Petitioners at 38, Baze, 128 S. Ct. 1520 (No. 07-5439).

[79]. See Baze, 128 S. Ct. at 1529 (quoting Brief for Respondents at 34-35, Baze, 128 S. Ct. 1520 (No. 07-5439), 2007 WL 4244686).

[80]. Brief for Petitioners at 41, Baze, 128 S. Ct. 1520 (No. 07-5439).

[81]. See Baze v. Rees, 217 S.W.3d 207, 211-13 (Ky. 2006), aff’d, 128 S. Ct. 1520 (2008).

[82]. See Brief for Respondents at 34, Baze, 128 S. Ct. 1520 (No. 07-5439).

[83]. Baze, 128 S. Ct. at 1572 (Ginsburg, J., dissenting).

[84]. See id. at 1568 (opining that these three factors must be considered in determining the constitutionality of a method of execution).

[85]. See supra note 77 and accompanying text.

[86]. See Baze, 128 S. Ct. at 1568 (Ginsburg, J., dissenting).

[87]. See id. at 1569.

[88]. Id. at 1556 (Thomas, J., concurring in the judgment).

[89]. Id. at 1562.

[90]. Id. at 1563.

[91]. See id. at 1532 (plurality opinion) (quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994)).

[92]. See id. at 1568 (Ginsburg, J., dissenting).

[93]. See id. at 1532 & n.3 (plurality opinion).

[94]. See Reply Brief for Petitioners at 23 n.9, Baze, 128 S. Ct. 1520 (No. 07-5439), 2007 WL 4618321 (quoting XV The Oxford English Dictionary 458 (2d ed. 1989); XVII The Oxford English Dictionary 66 (2d ed. 1989)) (comparing the meanings of “substantial” and “significant”).

[95]. Compare Baze, 128 S. Ct. at 1532 (requiring that an alternative procedure “significantly reduce a substantial risk”), with supra notes 74-78 and accompanying text (outlining the petitioners’ standard).

[96]. See Baze, 128 S. Ct. at 1532.

[97]. Id. at 1537.

[98]. See Baze, 128 S. Ct. at 1542 (Stevens, J., concurring in the judgment) (“When we granted certiorari in this case, I assumed that our decision would bring the debate about lethal injection as a method of execution to a close. It now seems clear that it will not.”); id. at 1562 (Thomas, J., concurring in the judgment).

[99]. See Petition for Writ of Certiorari at 8-11, Baze, 128 S. Ct. 1520 (No. 07-5439), 2007 WL 2781088.

[100]. See supra notes 63-69 and accompanying text.

[101]. Baze, 128 S. Ct. at 1531 (plurality opinion); id. at 1562 (Thomas, J., concurring in the judgment).

[102]. See id. at 1531 (plurality opinion); id. at 1542 (Alito, J., concurring) (expressing concern that plurality’s standard may be misinterpreted, thereby causing delay); id. at 1562 (Thomas, J., concurring in the judgment) (expressing similar concerns to those of Justice Alito).

[103]. See id. at 1542 (Alito, J., concurring in the judgment).

[104]. See id. at 1531 (plurality opinion).

[105]. See infra Part IV.A.

[106]. See infra Part IV.B.

[107]. See, e.g., Farmer v. Brennan, 511 U.S. 825, 833 (1994) (describing how lower courts came together in uniform agreement on a piece of Eight Amendment confinement doctrine).

[108]. See supra notes 63-69 and accompanying text.

[109]. Cf. Baze, 128 S. Ct. at 1562 (Thomas, J., concurring in the judgment) (criticizing Baze because it “left the States with nothing resembling a bright-line rule”).

[110]. See supra note 98 and accompanying text.

[111]. Compare Baze, 128 S. Ct. at 1530-31 (plurality opinion) (citing Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); In re Kemmler, 136 U.S. 436 (1890); Wilkerson v. Utah, 99 U.S. 130 (1879)), with supra notes 23-37 and accompanying text (showing how Resweber, In re Kemmler, and Wilkerson have limited precedential value).

[112]. See Baze, 128 S. Ct. at 1531 (citing Helling v. McKinney, 509 U.S. 25 (1993) (a conditions-of-confinement case); Farmer v. Brennan, 511 U.S. 825 (1994) (a conditions-of-confinement case)).

[113]. See supra Part II.

[114]. See supra Part II.

[115]. See Baze, 128 S. Ct. at 1531 (plurality opinion) (citing Helling, 509 U.S. at 33-35; Farmer, 511 U.S. at 842, 846 & n.9).

[116]. Id. (quoting Farmer, 511 U.S. at 842, 846 & n.9).

[117]. See id. at 1532 n.3 (using the two terms in the disjunctive form).

[118]. Id. at 1537.

[119]. Id. at 1530-31 (quoting Helling v. McKinney, 509 U.S. 25, 33-35 (1993)) (emphasis omitted).

[120]. Id. at 1537 (quoting Farmer, 511 U.S. at 846 & n.9) (emphasis added).

[121]. Id. at 1537-38 (emphasis added).

[122]. Compare id. at 1537-38 (finding no violation of the Eighth Amendment where there was no evidence “probative of the wanton infliction of pain”), with id. at 1560-61 (Thomas, J., concurring in the judgment) (noting that “[t]he evil the Eighth Amendment targets is intentional infliction of gratuitous pain, and that is the standard our method-of-execution cases have explicitly or implicitly invoked”).

[123]. Baze, 128 S. Ct. at 1533 (plurality opinion) (quoting Gregg v. Georgia, 428 U.S. 153, 175 (1976)).

[124]. See Liptak, supra note 16.

[125]. See supra notes 116-119 and accompanying text.

[126]. See supra notes 120-123 and accompanying text.

[127]. See Baze, 128 S. Ct. at 1531-32 & n.2.

[128]. Id. at 1531; see also id. at 1562 (Thomas, J., concurring in the judgment) (“We have neither the authority nor the expertise to micromanage the States’ administration of the death penalty in this manner.”).

[129]. See id. at 1542 (Alito, J., concurring).

[130]. See id. at 1532 (plurality opinion).

[131]. See id. at 1532 n.3.

[132]. See id. at 1537 (emphasis added).

[133]. See id.

[134]. Id. at 1531.

[135]. Id. at 1562 (Thomas, J., concurring in the judgment).

[136]. Liptak, supra note 16 (quoting Deborah W. Denno of Fordham University School of Law).

[137]. See supra Parts III.A, III.E.

[138]. See supra Parts III.A, III.E.

[139]. Reply Brief for Petitioners at 23 n. 9, Baze, 128 S. Ct. 1520 (No. 07-5439), 2007 WL 4618321 (internal quotation marks omitted).

[140]. Cf. Brief Amicus Curiae of the Criminal Justice Legal Foundation in Support of Respondents at 16, Baze, 128 S. Ct. 1520 (No. 07-5439), 2007 WL 4351594 (noting that the two standards merely constitute a “distinction without a difference”).

[141]. See Baze, 128 S. Ct. at 1562 (Thomas, J., concurring in the judgment).

[142]. See id. at 1533-34 (plurality opinion) (failing to address whether the cumulative impact of risks affects the method-of-execution analysis).

[143]. Id. at 1531. The plurality may have attempted to define “substantial risk” as those that are “‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’” See id. at 1530-31 (quoting Helling v. McKinney, 509 U.S. 25, 33-35 (1993)) (emphasis included). This seems to be a reasonable reading of the plurality’s opinion, although the plurality did not specifically link the two concepts. See id. In any case, the lack of specificity in defining such a key phrase unnecessarily creates room for dispute among the lower courts.

[144]. See id. at 1525-38 (failing to specify the point at which a risk becomes sufficiently substantial to trigger Eighth Amendment scrutiny).

[145]. See id. at 1534.

[146]. See id. at 1537.

[147]. See id. at 1531-32 & n.2. The plurality was specifically concerned about forcing courts into a comparative analysis of alternative lethal injection protocols whenever a “new and improved methodology” for executions emerged. Id. at 1531. Accordingly, the plurality set a threshold requirement that a risk be deemed substantial prior to triggering any comparative analysis. See id. at 1532 n.3. However, to make that threshold determination (i.e. whether a risk is substantial) courts must compare the risks of the Kentucky protocol to the risks of the protocol being challenged. See id. at 1537. This type of comparison would seem to implicate the plurality’s same concerns, because in order to ascertain the risks inherent in a given execution protocol, courts must first understand the scientific and methodological underpinnings of that protocol—something that may very well exceed the courts’ expertise. See id. at 1562 (Thomas, J., concurring in the judgment).

[148]. See id. at 1532 (plurality opinion).

[149]. Id. at 1534.

[150]. See id. at 1535.

[151]. Id. at 1536.

[152]. See id.

[153]. See id. at 1534-36.

[154]. See supra note 147.

[155]. See Baze, 128 S. Ct. at 1537.

[156]. See id.

[157]. See supra note 147.

[158]. See Baze, 128 S. Ct. at 1533-34.

[159]. See supra note 147.

[160]. 532 F.3d 291 (2008).

[161]. Id. at 297-98.

[162]. Id. at 299-300.

[163]. Id. at 309 (Gregory, J., dissenting).

[164]. Compare id. at 300 (majority opinion) (concluding “that Virginia’s protocol is substantially similar to Kentucky’s protocol”), with id. at 311-12 (Gregory, J., dissenting) (noting the “glaring differences” between the two States’ protocols).

[165]. Id. at 299-300 (majority opinion).

[166]. Id. at 311-12 (Gregory, J., dissenting).

[167]. Baze v. Rees, 128 S. Ct. 1520, 1537 (2008) (plurality opinion).

[168]. See id. at 1562 (Thomas, J., concurring in the judgment) (noting that under the plurality’s standard “the difference between a lethal injection procedure that satisfies the Eighth Amendment and one that does not may well come down to one’s judgment with respect to something as hairsplitting as whether an eyelash stroke is necessary to ensure that [an] inmate is unconscious”).

[169]. See, e.g., Farmer v. Brennan, 511 U.S. 825, 832 (1994).

[170]. Baze, 128 S. Ct. at 1531 (plurality opinion) (quoting Farmer, 511 U.S. at 842, 846 & n.9).

[171]. Farmer, 511 U.S. at 832 (internal quotation marks omitted).

[172]. See id. at 832, 834.

[173]. See id. at 835-36.

[174]. Id. at 836-37.

[175]. See id. at 837, 840.

[176]. Baze v. Rees, 128 S. Ct. 1520, 1562 (2008) (Thomas, J., concurring in the judgment).

[177]. See id. at 1542 (Alito, J., concurring).

[178]. See supra Part IV.A.

[179]. Linda Novak, Note, The Precedential Value of Supreme Court Plurality Decisions, 80 Colum. L. Rev. 756, 756 n. 1 (1980).

[180]. See id. at 756.

[181]. See 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)).

[182]. W. Jesse Weins, Note, A Problematic Plurality Precedent: Why the Supreme Court Should Leave Marks Over Van Orden v. Perry, 85 Neb. L. Rev. 830, 833 (2006) (citing Marks, 430 U.S. 188).

[183]. Marks, 430 U.S. at 193 (quoting Gregg, 428 U.S. at 169 n. 15 (opinion of Stewart, Powell, and Stevens, JJ.)).

[184]. See Cacace, supra note 16, at 111 & n.117 (citing United States v. Johnson, 467 F.3d 56, 65-66 (1st Cir. 2006) (listing Supreme Court decisions in which Justices have critiqued the Marks doctrine)).

[185]. See id. at 110 & n.111 (citing King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) as one example of a lower court opinion that has not given a ringing endorsement to the Marks doctrine).

[186]. See id. at 100.

[187]. See The Supreme Court, 2007 Term – Leading Cases, Eighth Amendment – Death Penalty – Lethal Injection Drug Protocol, 122 Harv. L. Rev. 286, 293 (2008).

[188]. See Baze v. Rees, 128 S. Ct. 1520, 1563 (2008) (Thomas, J., concurring in the judgment).

[189]. See Nichols v. United States, 511 U.S. 738, 745-46 (1994) (noting that, in the aftermath of a “splintered” Supreme Court decision, the Marks doctrine is “more easily stated than applied”).

[190]. Weins, supra note 182, at 840 (citing Nichols, 511 U.S. 738).

[191]. Id. The Court has another option when Marks has proven unhelpful and it decides to reconsider an issue: if the Court finds the plurality precedent to be desirable substantive law, it can make the precedent controlling by simply re-adopting, as a majority, the plurality’s reasoning. Id. at 841-42.

[192]. Baze v. Rees, 128 S. Ct. 1520, 1525 (2008) (opinion authored by Roberts, C.J.; joined in by Kennedy and Alito, JJ.).

[193]. Id. at 1556 (Thomas, J., concurring in the judgment; joined in by Scalia, J.)

[194]. See id. at 1567 (Ginsburg, J., dissenting; joined in by Souter, J.) (adopting the “untoward, readily avoidable risk of severe and unnecessary pain standard”)

[195]. Id. at 1563 (Breyer, J., concurring in the judgment).

[196]. Id. at 1542-52 (Stevens, J., concurring in the judgment) (concurring in the judgment on stare decisis grounds, but arguing that the imposition of the death penalty violates the Eight Amendment).

[197]. See supra notes 192-196 and accompanying text.

[198]. See supra notes 192-196 and accompanying text.

[199]. See Baze, 128 S. Ct. at 1156 (Thomas, J., concurring in the judgment; joined in by Scalia, J.).

[200]. Id. at 1542 (Alito, J., concurring in the judgment).

[201]. See id. at 1551 (Stevens, J., concurring in the judgment).

[202]. See supra notes 54-69 and accompanying text.

[203]. See Baze, 128 S. Ct. at 1568 (Ginsburg, J., dissenting).

[204]. See supra note 98 and accompanying text.

[205]. See supra Part III.E.

[206]. See supra Part IV.A.

[207]. See supra Part IV.B.

[208]. Liptak, supra note 16 (quoting Professor Jordan M. Steiker of the University of Texas School of Law).

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