Professor Carol Steiker ’86 is an expert in criminal law and capital punishment. She recently argued a death penalty case before the Supreme Court, winning her argument and overturning a Texas death sentence. Here, she responds to the following question:

The Supreme Court stayed the execution of a Mississippi man on October 30, likely signaling to lower courts that all executions should be put on hold until it rules on a Kentucky case, Baze v. Rees, which is on the docket to be argued in January. What’s the issue at stake in this death penalty case, and how will the court’s upcoming decision affect the death penalty in the U.S.?

The issue in Baze v. Rees is whether the lethal injection protocol in use in Kentucky and almost all of the other states that carry out executions violates the Eighth Amendment’s ban on cruel and unusual punishment. This is not a “wholesale” challenge to capital punishment; even the petitioners in the case do not seek a ruling that lethal injection in any form is always unconstitutional. Rather, the challenge is to the interaction of the 3 drugs that are currently used in the protocol: the most common lethal injection “cocktail” includes a barbiturate that anesthetizes the inmate, a paralytic agent that prevents any voluntary muscle movement, and finally potassium chloride, a drug that stops the heart and causes death. Potassium chloride is an exceptionally painful drug if administered without anesthesia, as it essentially burns up the veins on the way to the heart. The concern raised by the petitioners in Baze is that the barbiturate may not work properly in anesthetizing the inmate, but in such cases, the paralytic agent will make it impossible for the inmate to indicate in any way that he or she is still conscious. It is clear that such failures of anesthesia do occur sometimes, but there is debate about how often they occur.

In deciding this case, the Supreme Court will first have to decide what the proper Eighth Amendment standard or “test” is for unconstitutional cruelty in executions — a question that the Court has not addressed since 1947, when it upheld the second execution by electric chair of Louisiana inmate Willie Francis, after the chair malfunctioned the first time. Is the proper question whether any pain that might occur is “unnecessary,” or should the standard focus on whether the state actors involved showed “deliberate indifference” to the inmate’s possible pain? Different state courts have embraced versions of these two competing formulations. The Court will also have to address how to weigh the executing states’ interests in relative expeditious and inexpensive executions against any reductions that could be made in inmate suffering. In considering the interests of the condemned, the Court will have to consider not only the degree of pain that the current protocol causes when it malfunctions, but the degree of risk of malfunction that inheres in the protocol.

The likely outcome of this litigation — whether the Court imposes new conditions on the use of lethal injection or whether it approves the widely-used protocol currently on the books — is a resumption of executions and a quickening of the pace of them. Lethal injection litigation has been tying up state courts ever since the Supreme Court ruled in 2006 that such challenges could proceed via Section 1983, rather than by the more restricted route of habeas corpus. If one were a supporter of capital punishment and impatient with the claims of inmates that lethal injection is too painful, then one might well welcome the Court’s grant of certiorari in Baze, because it will likely establish parameters for execution protocols that will thereafter be immune from federal constitutional challenge. It would not surprise me if it was the capital punishment supporters on the Court (rather than the death penalty skeptics) who voted in favor of the grant of review. I think of this case — regardless of its outcome — as a kind of “roto-rooter” move (that is, a case that will have the inevitable effect of unclogging the pipeline to death chambers around the country).

Notwithstanding this likely effect, Baze may contribute to the abolitionist movement in an indirect way — through the wait for the decision, rather than through any doctrine that will emerge. The Supreme Court has now made clear in its most recent stay of execution that all executions will have to wait until it decides the lethal injection challenge raised in Baze. This de facto nation-wide moratorium on executions will likely last until late spring (and possibly as late as the end of June, when the Court will issue the last opinions of the Term), and it will be the longest period that this country has gone without executions in the “modern era” of capital punishment (that is, since 1976, when the Court reinstated the death penalty after having temporarily abolished it in 1972 in Furman v. Georgia). We’ve seen in the experience of most European countries that a period of de facto moratorium has generally preceded abolition. One way that such a period can contribute to the movement toward abolition is by allowing recognition to dawn that we can “live without” executions without the heavens falling. It is in this small and indirect way that Baze may most contribute to the larger, ongoing public debate about the future of the death penalty.