The Magazine

The Supreme Penalty

Arguing about the death penalty yet again.

Mar 31, 2008, Vol. 13, No. 28 • By ERIN SHELEY
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In Baze, two Kentucky death row inmates--one convicted of murdering two police officers, the other of wounding a two-year-old boy and shooting his parents to death in a parking lot--challenge the three-chemical formula used by 35 states to perform lethal injection. While the defendants do not challenge the practice of lethal injection itself, they argue that the particular cocktail in use is "highly vulnerable to multiple errors, any one of which will result in the infliction of agonizing pain." They argue that any death penalty procedure creating "unnecessary risk" of suffering should be deemed cruel and unusual, and urge that "an execution procedure creates unnecessary risk where, taken as a whole, it presents a significant risk of causing severe pain that could be avoided through the use of a reasonably available alternative or safeguard."

Should this claim be accepted by the Court, the ramifications for states' administration of capital punishment would be dramatic. The Baze defendants do not assert that the risk of pain need be great, only that it be unnecessary because an alternative means of execution is available. As long as medical science continued to generate arguably less painful alternatives for the anti-death penalty movement to champion, any method in use could be deemed unconstitutional. Because a legal challenge to a procedure can result in a moratorium on its use (indeed, a three-month nationwide moratorium on lethal injection has been in effect since the Court agreed to hear Baze), the proposed standard could indefinitely prevent states from enforcing the sentences of their courts.

By the terms of the Court's Eighth Amendment precedent, the challenge to the lethal injection cocktail should fail: At the very least, it is difficult to argue that a method used by 35 states (of the 36 that have the death penalty) fails the Roper test for a national consensus in favor of a practice. However, four justices (Stevens, Breyer, Ginsburg, and Souter) voted in 2005 to grant a stay of execution in a case concerning the same cocktail at issue in Baze. If they are joined by Kennedy, whose willingness to read heightened restrictions on capital punishment into the Eighth Amendment made him the deciding vote in Roper--and for whom the weight of international sentiment against all use of the death penalty could be relevant--the challenge will succeed.

As for Kennedy v. Louisiana, it is the case of Patrick Kennedy, sentenced to death for raping his eight-year-old stepdaughter (a crime for which he attempted to frame neighborhood youths) under a Louisiana statute making aggravated rape of children a capital crime. In his petition, the defendant relies on Supreme Court precedent holding that capital punishment for rape was unconstitutionally cruel and unusual because the finality of the sentence was disproportionate to the harm done to the victim, which fell short of death. The Court must now decide whether the unique susceptibility of a child to "negative influences"--which in Roper it deemed sufficient to spare a 17-year-old murderer--increases the harm done to an eight-year-old rape victim sufficiently to justify capital punishment for her protection.

Structurally, this case resembles Roper, insofar as it considers whether the nature of a particular crime can ever warrant capital punishment. As only six states make rape a capital crime, the defendant will argue that there is no national consensus in favor of the death penalty for rape (though a number of states, such as Colorado, have child-rape bills moving through their legislatures in reaction to the Kennedy case).

And should the Roper majority reconstitute itself, the similarities between the two cases would present an opportunity for yet another exploration of foreign opinions on the subject. According to Amnesty International, fewer than half of the nations with a death penalty on the books allow it for child rape. In its petition to the Court, the defense did not cite international law (though it did urge the Court to "pause" before condoning the execution of child rapists, as the practice, it argued, is "heavily tinged with the scourge of racism").

Should the Court strike down the Louisiana statute, the repercussions for criminal justice could go far beyond the realm of rape, depending on how broadly the decision is couched. As Louisiana argues in its brief, 15 out of 38 states and the federal government authorize capital punishment for crimes other than murder, including treason, espionage, aircraft piracy, and aggravated kidnapping. If the Court holds against the state on the grounds that death is always "grossly out of proportion" for a crime not resulting in death, one of the federal government's strongest defenses against double agents could be jeopardized.