Lethal Injections And The Supreme Court

Lawyer Andrew Cohen analyzes legal affairs for CBS News and CBSNews.com.
I make predictions about Supreme Court decisions about as often as the Justices agree unanimously on contentious issues, which is say, almost never. But I am prepared to go out on the legal limb in the lethal injection case out of Kentucky which the High Court yesterday agreed to consider and decide during the looming term.

By a 5-4 vote, I predict, with Justice Anthony Kennedy writing the majority opinion, the Court next spring will declare invalid the lethal injection procedures Kentucky and certain other states employ when they execute capital defendants. The decision will then force all "lethal injection" states to do what some already are doing, which is to revamp their execution protocols to ensure that the condemned are given the proper amount of the proper medications in the proper order so they don't endure "cruel and unusual punishment" before they die.

The Court's most conservative quartet—Chief Justice John Roberts and Associate Justices Scalia, Thomas and Alito—will offer a stinging dissent that focuses upon the rights of states to determine for themselves their own execution protocols. And if Justice Scalia gets to write that dissent I'm fairly confident that we'll see a line or two about what he considers the "absurdity" of spending so much time and effort ensuring that a death row inmate about to be killed in the name of the people is treated like a patient in the finest hospital in the world.

Okay, I'm done with my predictions. The case is titled Baze v. Rees and here is the Kentucky court ruling which now goes up on appeal. No one who follows the Court should be surprised that the Justices have agreed to resolve this issue. The Justices in recent years have been consistently willing to limit the contours of capital punishment in America—they abolished, for example, a state's right to execute mentally retarded murders and also those who killed when they were younger than 18 years old. The trend, then, favors the condemned.

Moreover, literally from sea to sea, from California to Florida and many points in between, lower-court judges and state officials with increasing frequency have themselves stopped executions over concerns about lethal injections. Florida Governor Jeb Bush, for example, suspended all executions in the Sunshine State late last year after prison officials botched the execution of a man named Angel Diaz. Lethal injections also have been halted by decree or court order in Maryland, New Jersey, Delaware, and Tennessee. Other states, like Oklahoma, already have tried to change their injection protocols.

No matter which side of the capital punishment debate you find yourself on it's clear that prison officials and state legislators could use some guidance and certainty in this tussled area of the law. A uniform rule that increases the effectiveness of injection procedures—more drugs, more often, administered by people with more professional experience—would go a long way in making this so. You heard it here first.