Petitioner’s brief in Baze lethal injection case

Now available at lethalinjection.org, the great web project of the Berkeley Law Death Penalty Clinic, is the Petitioner’s brief on the merits in Baze v. Rees, which was filed in the Supreme Court yesterday.  Karl Keys seems impressed by the effort, and here is the start of the summary of argument:

The Eighth Amendment prohibits the “unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976).  In the capital punishment context, the Eighth Amendment’s prohibition on the “gratuitous infliction of suffering,” id. at 183, requires States to avoid inflicting more pain than is necessary to cause death.

This prohibition applies fully to the manner in which a government carries out executions, not merely to its choice of particular execution methods.  Even an execution method such as lethal injection that is humane in theory can be carried out by means of flawed or haphazard procedures that create a foreseeable danger of inflicting severe pain in actual practice. Performed repeatedly over time in the absence of adequate safeguards, such a method of execution will inevitably involve the infliction of gratuitous pain in some executions. Inflicting gratuitous pain on a subset of condemned prisoners is no more tolerable than inflicting gratuitous pain on all condemned prisoners.  A State therefore violates the Eighth Amendment when its execution procedures create a significant and unnecessary risk of inflicting severe pain that could be prevented by the adoption of reasonable safeguards.

Kentucky’s three-drug lethal injection protocol violates this bedrock Eighth Amendment requirement.  It is undisputed that a condemned prisoner injected with pancuronium and potassium will suffer torturous pain and agonizing death if the prisoner has not been properly anesthetized — but will be unable to alert anyone to this suffering, and will appear serene and comfortable to the executioners and other observers while enduring an excruciating death. It is also undisputed that Kentucky could easily eliminate the risk of such suffering by forgoing the use of pancuronium and potassium, and relying instead on a lethal dose of an anesthetic such as thiopental or pentobarbital — which will produce death in a matter of minutes.  The Commonwealth was unable to identify any legitimate penological justification for persisting in the use of the three-drug formula — or even for its refusal to take the alternative step of monitoring the anesthetic depth of executed prisoners.