More on Baze v Rees

Lethal injection image, via Bridget said in the comments to yesterday’s post about the US Supreme Court’s decision in the death penalty case, Baze v Rees:

Intellectual commentary might come later.

Here’s my first try. There are now many news reports (a selection of the more interesting: ABC News | AFP | AP | BBC | CBC | CNN | Huffington Post | Irish Times (sub req’d) | LA Times | New York Times | RTÉ | Slate preview and report) from which many interesting details are emerging. For example, by way of factual background to the case, CNN reports that

Recent executions in Florida and Ohio were rife with problems, taking much longer than expected when technicians had trouble inserting IVs into the prisoners’ veins.

Nevertheless, both AFP and RTÉ report that

Around two-thirds of US citizens favour the death penalty, according to the ‘Death Penalty Information Centre‘, in a country where 3,260 detainees are presently on death row. In December, New Jersey became the first state in 40 years to abolish the death penalty.

Amplifying on this, CBC reported that

Forty-two people were executed last year among more than 3,300 people on death row across the country. Another roughly two dozen executions did not go forward because of the Supreme Court’s review, …

However, the Supreme Court had not issued a formal moratorium on executions, though one was effectively observed simply a matter of caution on the part of the States for more than six months. But this consensus is quickly dissipating: the AP reported that Tim Kaine, the governor of Virginia (fresh from a first anniversary memorial statement for the victims of the Virginia Tech tragedy), lifted his state’s moratorium on executions two hours after the decision.

There are also many legal blog comments (a selection of the more interesting: Alice Ristroph and Dave Hoffmann on Concurring Opinions | Daily Writ | FindLaw | Human Rights America | Jurist | ScotusBlog; and look out for a suitably laconic comment here soon).

First, because of the heavily splintered nature of the 7-2 decision, there will be much judicial head counting. For example, given his form, Kennedy J’s vote might have come as a surprise; so also Breyer J’s, as he had previously joined Kennedy J in striking down the death penalty for juveniles; Stevens J’s vote likewise, especially given his call for the Court to consider whether the death penalty in general is unconstitutional:

The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived.

Second, and again reflecting the deep divisions on the Court, as Lyle Denniston points out on ScotusBlog, only three justices supported Roberts CJ’s standard of whether an execution method poses a “substantial risk of serious harmâ€? (Roberts CJ, and Kennedy and Alito JJ) but four disagreed with it (Scalia and Thomas JJ, who rejected it as inconsistent with original intent, and Ginsburg and Souter, who dissented). But despite this headcounting, the Roberts-three probably represents the ratio of the case. And so, on a doctrinal level, there is now a new standard with which to grapple.

Third, Dave Hoffmann on Concurring Opinions (update: see also Paul Cassell on The Volokh Conspiracy) focuses on the dispute between Stevens and Scalia JJ on the empirical evidence on the issue, which would be fun if it weren’t so serious.

Fourth, much of the commentary has been and will be driven by the commentators’ political perspectives on the death penalty. I find it hard to separate my distaste for the punishment from my understanding of the Eighth Amendment standard of what constitutes “cruel and unusual punishment” in general or of the reasoning of the seven judges in the majority in Baze. But, even still, I think it clear that the two main positions in the majority share the strengths and weaknesses of their authors’ judicial politics and style. The Roberts/Alito position seeks to craft a standard which will be workable in practice and which moves the law incrementally to the right; the Scalia/Thomas position seeks to establish in one fell swoop a purist doctrine driven by their particular understanding of the historical context of the amendment. Neither group will persuade the other; nor will either persuade the undecided. Rather, it will simply be because it is a decision of the Supreme Court, rather then persuasive power of the judgments’ reasoning or the judicial craftsmanship on display, that Baze will be followed.

Bonus link: there is an eye-wateringly comprehensive page on Kennedy v Louisiana (the rape/death penalty case) here