Baze v. Rees: what will the justices do?

Today’s oral argument in Baze v. Rees, which promised to consider the constitutionality of a three-drug cocktail used in executions in Kentucky and nearly every other death penalty state, left court watchers not only unsure as to which way the Court would rule.

It left them wondering if the Court would even get to the broad constitutional question at all, or would it simply – or not so simply – hand down a limited ruling that would leave the door open for future challenges.

The justices themselves seemed to openly struggle with what to do from the bench today:

Do they hand down a ruling deciding once and for all whether the method amounts to cruel and unusual punishment after a careful comparative analysis with alternative methods, as Justice David Souter seemed to recommend?

Do they decide that since, as the petitioner conceded, the three-drug method can be administered constitutionally, that there is no problem if the record shows that Kentucky uses adequate safeguards, as Justice John Paul Stevens pointed out?

Or should they reject the challenge altogether to stave off the limitless challenges that death penalty opponents will launch if the Court opens the door even an inch on the issue, as Justice Antonin Scalia suggested?

[More after the jump]

Souter, speaking first to attorney Donald Verrilli, Jr., who argued on behalf of two Kentucky death row inmates that Kentucky’s method left more open to human error that could lead to long, painful death than a single-drug method would, said the record lacked crucial findings of fact.

“We’re being asked to make findings of fact about the availability of medical personnel and the feasibility of training and so on that the trial court never made because it didn’t think it had to make a comparative analysis here,” Souter said. “So that if, in fact, the comparative analysis is crucial to the case, we should send the thing back for factfinding by a trial judge rather than trying to do it here.”

Then speaking to Deputy Solicitor General Gregory Garre, who argued in support of Kentucky as amicus curiae, Souter made the point again.

“If we don’t do something like that [send it to the lower court for fact finding] in this case, Mr. Garre, another case is going to come along and we are going to be right back here a year from now or 18 months from now,” Souter said. “And wouldn’t it be better to get one case litigated thoroughly and get the issue decided rather than simply wait here for another one to wind its way?”

“We think that this court should decide the issue,” Garre answered. “We think it should decide it by saying Petitioners have not established a constitutionally significant.”

Souter disagreed. “If we decide it on this basis, the next Petitioner is going to say ‘I’m coming into court with evidence these people did not present.’ And we are going to have a new case and new round of litigation,” Souter said. “I think what’s disturbing Justice (Stephen) Breyer, what’s disturbing me and others, is we want some kind of a decision here. And it seems to me that the most expeditious way of getting it if comparison analysis is appropriate — and I will be candid to say I think it is — is to send this case back and say, okay, do a comparative analysis. Make the findings and we will then have a case that will in effect resolve the issue as much as one case can ever do.”

Justice John Paul Stevens, on the other hand, worried that the Court’s hands might be tied in terms of answering the broad constitutional question because only a very narrow procedural question was put before it. Because the attorney for the inmates conceded that there was a constitutional way of administering the three-drug combination, if the Court finds Kentucky used proper safeguards, the case is over – with the broader question of the inherent constitutionality of the three-drug method left unanswered.

“I’m terribly troubled by the fact that the second drug is what seems to cause all the risk of excruciating pain, and seems to be almost totally unnecessary in terms of any rational basis for a requirement,” Stevens said. And since the petitioner conceded that the three-drug cocktail could be implemented constitutionally, “we’re not going to be able to decide [that issue] today [and] that leaves open a whole ‘nother area of litigation, which is what troubles me.”

Scalia, on the other hand, seemed concerned that allowing any comparative analysis would just give anti-death penalty activists the tool to launch endless challenges.

“Those who oppose capital punishment entirely across the board are quite willing to take a careful look at everything,” Scalia said. “They are quite willing to take a look at other alternatives. That’s the problem we come up with a decision that requires a careful look in every case whenever there is a newly developed method of execution the problem will always be before us and executions will always be impermissible.”

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