The BBC are reporting today on yet another death row battle in the United States: Alabama’s fierce death row battle:

If most politicians in Alabama had their way, Tommy Arthur would have been executed more than 20 years ago. … Alabama’s governor has made it clear he wants Arthur to die as soon as possible, and that the current furore over the chemicals used to deliver the ultimate punishment is an annoying distraction.

Although many death penalty abolitionists are viewing the US Supreme Court’s decision to review the constitutionality of the existing chemical cocktail with hope, the fact is that states like Alabama guard their rights very carefully – and few more so than the right to execution.

Last Thursday, I attended an event hosted by the University of Washington and Lee‘s branch of the American Constitution Society, looking at the US Supreme Court’s term just past and at the term to come. David Bruck, of that University’s Law School talked about death penalty cases (which he described as a US Supreme Court “staple, term after term”), including what the BBC story above referred to as “the current furore over the chemicals used to deliver the ultimate punishment”.

Last term, the big death penalty question was whether executing someone suffering from mental illness constituted “cruel and unusual punishment” sufficient to be precluded by the Eighth Amendment to the US Constitution. The controlling test has been that announced by Powell J in his concurrence in Ford v Wainwright 477 US 399 (1986). In his view, the test for whether a prisoner was insane for Eighth Amendment purposes was whether the prisoner is aware of his or her impending execution and of the reason for it; he further held that the States could satisfy due process by providing an impartial officer or board that can receive evidence and argument from the prisoner’s counsel, including expert psychiatric evidence. Last term, in Panetti v Quarterman 551 US — (2007) (wikipedia), the Court had occasion to revisit Ford v Wainwright. Panetti was convicted of capital murder in a Texas state court and sentenced to death despite his well-documented history of mental illness. On what Bruck characterised as these “dramatic facts”, the Federal Courts nevertheless held that he passed Powell’s standard in Ford v Wainwright, in that he knew enough to have sufficient inisght into his impending execution. The Supreme Court, in a 5-4 decision written by Kennedy J, reversed, holding that Powell’s decision in Ford v Wainwright was controlling.

Essentially, in Panetti, the Court held that the Eighth Amendment requires a rational understanding of the State’s rationale for an execution; and that mere awareness of that rationale is not the same as a rational understanding of it. Moreover, Kennedy J held that the Texas court failed to provide the procedures to which petitioner was entitled under Ford.

In a previous death penalty case, Roper v Simmons 543 US 551 (2005), Kennedy J relied in part on what he called the overwhelming weight of international opinion against the juvenile death penalty as providing respected and significant (if not controlling) confirmation for the Court’s determination that the penalty is disproportionate punishment for offenders under 18 (though the international news is not uniformly good). It was a very controversial element of that decision, and he did not consider the weight of international opinion in Panetti.

Bruck then went on to consider the case which the BBC story says provoked “the current furore over the chemicals used to deliver the ultimate punishment”. The case is Baze v Rees (US Supreme Court docket entry here; SCOTUSblog wiki here), a lethal injection case on appeal from the Supreme Court of Kentucky (217 SW 3d 207 (Ky. 2006)) in which the question for the Court essentially is whether the current 3 drug cocktail (see the wikipedia entry here) raises an unnecessary risk of extreme pain and suffering (see a New Scientist article on the point: Lethal injection drugs ‘unreliable’). The last time a method of execution was evaluated was Wilkerson v Utah 99 US 130 (1878), where the Supreme Court held that death by firing squad was not cruel and unusual punishment under the Eighth Amendment. Bruck characterised the issue in Baze a crisis arising from the increased pseudo-medicalisation of the death penalty, which has probably made it more acceptable. For example, he mused: “would the death penalty be as popular if the method were hanging?â€?. In his view, although lethal injection resembles a medical procedure, it was devised in a slapdash manner; if the Supreme Court shares this view, it is likely to strike down the cocktail in its current form. But he ventured no prediction as to whether it would. As so often last term, it is likely to depend on Anthony Kennedy’s swing vote.