Terrific Baze-ian analysis of lethal injection issues

Writing in the National Law Journal, Marcia Coyle has this very strong piece entitled “Supreme Court Asked to Set a Standard for Lethal Injection.”  The piece provides an extremely effective review of the issues and arguments facing the Justices as they consider the Baze lethal injection case (which will be argued January 7).  Here are some excerpts:

[T]he justices are being asked to give judges a standard for evaluating challenges to lethal injection protocols under the Eighth Amendment. The need for one standard is obvious from the flow of litigation throughout the country that followed the high court’s 2004 and 2006 rulings in Nelson v. Campbell and Hill v. McDonough, respectively.

Lower courts have used a variety of standards — “substantial risk of wanton and unnecessary pain,” “wanton infliction of pain,” “significant and unnecessary risk” of inflicting severe pain” — to decide whether the challenged protocols are “cruel and unusual.” Not surprisingly, then, the results in this crucial matter of death procedures have been inconsistent and frustrating to judges, death row litigators and the state defendants….

The lethal injection case, say many scholars, presents difficult questions for the justices for a number of reasons: There is very little method-of-execution case law for them to examine, standards that do exist are vague and the issue involves not just law but medical expertise. There have been essentially three separate lines of analysis under the Eighth Amendment, they say. There is the principle in Gregg and earlier cases that asks whether the punishment inflicts unnecessary and wanton pain. Second, there is the more modern formulation of “evolving standards of decency.” And finally, there is the “deliberate indifference” analysis applied only in cases challenging conditions of confinement….

But whatever the justices decide, lethal injection challenges are unlikely to end, said Berkeley’s [Elisabeth] Semel. “It all depends on how big a window the Court leaves open.”