On the day when the President of the United States welcomes the Pope to the White House, the long-awaited decision of the US Supreme Court on the compatibility of the lethal injection with the Eighth Amendment to the US Constitution has been handed down. In Baze v Rees, the challenge failed by a vote of 7 to 2 and the decision below (217 S. W. 3d 207 (2007)) was upheld; but the 7 is a fractured majority (I have previewed this case here and here; for full analysis, see the ScotusWiki page on the case; for initial news reaction, see NPR).

Roberts CJ, joined by Kennedy and Alito JJ, concluded that Kentucky’s lethal injection protocol satisfies the Eighth Amendment. In their view, allowing a condemned prisoner to challenge a State’s execution method merely by showing a slightly or marginally safer alternative found no support in the Court’s cases, that it would embroil the courts in ongoing scientific controversies beyond their expertise, and that it would substantially intrude on the role of state legislatures in implementing execution procedures. As a consequence, they held that the petitioners had failed to demonstrate the necessary substantial risk of serious harm, and that Kentucky’s protocol did not constitute an unconstitutional “cruel and unusual” punishment.

Breyer J similarly held that nothing in the record demonstrated sufficient grounds to believe that Kentucky’s lethal injection method creates a significant risk of unnecessary suffering. Scalia and Thomas JJ, went much further: they concluded that the historical practices leading to the inclusion of the “cruel and unusual punishment” clause in the Eighth Amendment demonstrate that an execution method violates the Amendment only if it is deliberately designed to inflict pain. And they held that Kentucky adopted its lethal injection protocol in an effort to make capital punishment more humane, the challenge failed.

Stevens J concurred in the result, but expressed grave reservations about the plurality’s reasoning, concluding that the decision is unlikely to end the controversy about the constitutionality of the lethal injection as a method of capital punishment. Ginsburg J, joined by Souter J dissented, on the ground that Kentucky’s protocol lacks basic safeguards used by other States Kentucky’s protocol lacks basic safeguards used by other States to prevent an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

No doubt, there will be much commentary on this decision and the fractured nature of the majority is likely to encourage debate about the lethal injection in particular and about capital punishment in general. The first opportunity is likely to be presented by the argument today in Kennedy v Louisiana on the question of the constitutionality of imposing the death penalty for child rape (see the ScotusWiki page and the NPR report on the case).