Some parting(?) thoughts on Baze and the lethal injection debate
Though I doubt I will be able to resist posting on the Baze case in the weeks and months ahead, I am eager to stop blogging about lethal injection litigation and to focus on all the other great (mostly non-capital) sentencing issues that now abound. I have come to realize that this feeling results largely for my sense that the petitioners in Baze are making great policy arguments and terrible constitutional claims.
As I have said for quite some time and in various scholarly venues (see here and here and here), refining lethal injection protocols seems most properly a job for legislatures, not for courts. To their discredit, some states have been awfully cavalier and secretive about modern lethal injection protocols. But, as I said in this recent PENNumbra debate, even if everyone agrees as a policy matter that states should be more careful and conscientious in their execution methods, I find troubling the argument that all death penalty states, after having adopted an improved, but still perhaps imperfect execution method, now have a constitutional obligation to make their lethal injection protocols even more perfect in order to minimize any possible risk of pain to the murderer being executed.
I make this point and others with a lot words in this short podcast about the Baze oral argument that I did earlier this afternoon. And, for anyone interested in a review of the day in Baze posts and my prior scholarly writings on lethal injection protocols, here is a recap:
- The secret story behind the Baze case
- A great animal irony in the Baze oral argument
- Early reflections on the Baze oral argument
- Putting Baze et al. in perspective
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Finding Bickel Gold in a Hill of Beans (my article about last SCOTUS lethal injection case)