Baze: reactions elsewhere
Adam Liptak’s views on Baze in the NYT, private emails, & CJLF’s initial reactions (who, without my reading our post & their reading our’s, agreed with on what quotes were the heart of the opinion) indicate a near uniform reaction to Baze — we haven’t seen the last of lethal injection challenges. Wednesday’s opinion merely stands for the proposition that on the record before Court a successful challenge to lethal injection can not be had and, lethal injection challenges that are not better developed than the Kentucky protocol challenge in other jurisdictions must fail as well. The Court intentionally left open, however, the ability to bring lethal injection challenges in other jurisdictions and to other lethal injection protocols where the record was better developed than the record in Baze. [more]
Grits curiously asks, will there be more executions in Texas this year than exonerations, the exonerations right now are winning by a landslide.
DPOARCAM draws our attention to Berry, Melissa M., Kochan, Donald J. and Parlow, Matthew J., “Much Ado about Pluralities: Pride and Precedent Amidst the Cacophony of Concurrences, and Re-Percolation after Rapanos” . Chapman University Law Research Paper Available at SSRN: http://ssrn.com/abstract=1017992.
Dahlia Lithwick notes dryly:
If you’re looking for some light reading tonight, check out John Paul Stevens’ concurrence in the lethal-injection case. For the first time in years, a sitting justice is taking the position that capital punishment “[is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment,” just as Harry Blackmun wrote near the end of his life that “the death-penalty experiment has failed. I no longer shall tinker with the machinery of death.” You can spend tonight weighing the competing trends in favor of executing rapists against the trends away from it, or—for the ambitious among you—trying to count five justices who can agree on which of these trends counts for more.
Me, I am going to pour myself a big old drink and try to count the number of jurists who, after a lifetime on the court, have concluded that the death penalty in America simply cannot be fixed. Then I’ll weigh them against the number who started off opposing capital punishment and became increasingly certain that the system works. Maybe this is yet another trend that doesn’t matter. And Justice Scalia would tell me that the death penalty needn’t be perfect to be constitutional. But it’s probably not an accident that judges who have stood watch over hundreds of executions eventually need to believe that they are evolving toward a system that’s at least better than what came before.
AI & INCase had two of my other favorite reactions. Of the two I’ll just steal from Will’s post INCase :
Unlike the quixotic battle against the flaws of the death penalty that was hoped for by some, the narrow scope of the questions placed in front of the Justices made it clear that this case would rule on thiopental, pancuronium bromide, and potassium chloride not racial disparities, an undue cost burden on taxpayers, and the lack of a conclusively demonstrated deterrent effect. In fact, as the chemistry of executions was hashed out throughout the case, a different chemical-the one used to put animals to sleep-emerged as a seemingly acceptable alternative as it mitigated the risks involved with the current three-drug “cocktail”.
And so, while the highest court in the land discussed the Eighth Amendment in differing terms like “substantial” or “objectively intolerable” pain, and “unnecessary risk” of pain vs. “substantial risk” of pain, I simply had to shake my head with the full knowledge that this was not the debate society needs to be having. While the facts of the case may be appropriate for Supreme Court Justices, we the people need to be talking about what a fair and effective justice system means to us.
Does a fair justice system sentence those who kill whites to death three times as often as those who kill blacks, as Indiana’s does?
Does an effective justice system spend almost 40% more on a capital case than the cost of imprisoning a defendant for their entire life? Indiana’s does.
Is it acceptable to have innocent men come within 3 days or 2 weeks of their executions, only to later be acquitted of their crimes? It happened here in Indiana.
This is just the beginning of this long overdue conversation and it doesn’t involve chemistry.
[edited for readability]
