Now that the U.S. Supreme Court has approved Kentucky’s administration of lethal injection in Baze v. Rees, prosecutors, especially in the Death Belt, are tripping over themselves to roll the gurneys back into the execution chambers. Within hours of the opinion’s release, politicians made announcements similar to the one delivered by California Governor Arnold Schwarzenegger: “Today’s U.S. Supreme Court decision supports California’s lethal-injection protocol and allows our case to move forward.”

Never mind that executions in California are on hold not because of Baze, but because a state court ruled that the corrections department had failed to promulgate its protocol according to the requirements of the state’s administrative procedures act. And never mind that a federal judge who concluded that the state’s procedures violated the Eighth Amendment has yet to review the revised protocol to determine whether it satisfies the Baze standard. Politicians like Schwarzenegger have grabbed hold of Baze, proclaimed that it has ended challenges to lethal injection and hope to ride it through a wave of soon-to-be-scheduled executions. Whether they are successful depends on whether lower courts heed, or ignore, the complexities of the court’s seven opinions.

Not a simple matter

Chief Justice John G. Roberts Jr.’s plurality opinion establishes that the court is primarily concerned with whether states are able to successfully administer the first drug in the three-drug formula — the anesthetic. Failure of that first drug results in a “constitutionally unacceptable” risk of suffocation and excruciating pain. On the limited facts before the court, Roberts took the view that delivery of the anesthetic is a relatively simple endeavor. But in other states, where courts have allowed full inquiry into lethal-injection protocols, it has become apparent that getting the first dose “right” is not a simple matter. Here, Justice Stephen G. Breyer got it right when he wrote that “the legal merits” of these claims must turn more on the “facts and evidence” than on the legal standard.

The plurality opinion in Baze may succeed — as Roberts intended — in precluding stays of execution when the demonstration of substantial risk is not greater than that presented by the Kentucky record. Indeed, fear that lethal-injection challenges will disrupt executions for more than the six-month period while Baze was pending was apparent in the opinions of justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. Alito warned that a narrow interpretation of the court’s ruling created a “grave danger of extended delay,” which might “go a long way toward bringing about the end of the death penalty as a practical matter.”

Until Baze, the Supreme Court’s exposure to lethal-injection challenges was defined by two cases: Hill v. McDonough and Nelson v. Campbell. Both arose out of emergency applications for stays, and both presented limited questions about whether Eighth Amendment challenges could be brought, and if so, through what legal proceeding. Neither required the court to understand, much less grapple with, the evidence about what goes on in the execution chamber. But these cases may have shaped the court’s view of lethal-injection challenges as primarily a means of staying executions at the last minute.

Roberts described the Kentucky trial court hearing as a thorough examination of the state’s lethal-injection process. It was anything but, particularly in contrast to the evidence assembled through discovery and hearings in states such as Missouri, California and Tennessee, where corrections officials have been required to give up more than the paper on which the protocols are written.

Notwithstanding the illusion of peaceful deaths created by the use of the second drug in the three-drug formula, the paralytic, if courts allow discovery of execution records and depositions of executioners, outcomes will be different than they were in Baze. They may well resemble the result in Tennessee, where a federal district judge found that “due to lack of training and other issues,” the state’s “new protocol poses a substantial risk” that the inmate “will not be unconscious when the second and third drugs are administered.” Or trial courts may find, as did a federal judge in California, that the record “is replete with evidence that in actual practice the [state's protocol] does not function as intended.”

Judicial fear of too much litigation, too much inquiry and too much truth about how the death penalty operates is a familiar one. In 1987, in McCleskey v. Kemp, the court held that a reliable statistical study showing the likelihood that racial prejudice influences Georgia capital sentencing decisions could not be used to establish race discrimination in the decision to sentence Warren McCleskey to death. The majority opinion, authored by Justice Lewis Powell, made much, as did Roberts’ opinion, of the constitutional legitimacy of capital punishment and of federalism. Central to the ruling, however, was the concern that “McCleskey’s claim, taken to its logical conclusion,” would instigate challenges to discrimination at every level of the criminal justice system. Dissenting, Justice William J. Brennan Jr. responded that the fear of “apocalyptic consequences” was, rather, “a fear of too much justice,” and the fact that the death penalty was the legislatively adopted norm in most states was unpersuasive given the issues at stake: “death and race.”

It was scrutiny that the majority in McCleskey feared. It is scrutiny that some members of the current Supreme Court fear. It is certainly scrutiny that departments of corrections fear. In 1991, Powell stated that if he could change his vote in any case it would be the one he cast 14 years earlier in McCleskey. If trial courts allow discovery to go forward in lethal-injection challenges, we will not have to wait 14 years for some justices to reconsider what went wrong in Baze.

Elisabeth Semel is clinical professor of law and director of the Death Penalty Clinic at the University of California, Berkeley School of Law.