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The de facto nationwide moratorium on executions for the last six months is likely at an end as a result of the Supreme Court’s 7-2 decision Wednesday upholding Kentucky’s protocol for lethal injections. Two death row inmates had challenged the procedure used by Kentucky and 34 other states, claiming that if improperly administered, it could cause excruciating pain before death, in violation of the Eighth Amendment ban on “cruel and unusual” punishment. But Chief Justice John Roberts Jr., writing for himself and two other justices in the majority, said the inmates had not established the kind of “objectively intolerable risk of harm” necessary to render a procedure unconstitutional. Within hours of the decision, Virginia Gov. Tim Kaine (D) lifted that state’s moratorium on executions, which he had imposed while the Kentucky case was pending. The splintered decision in Baze v. Rees leaves open possible future challenges to lethal injection, however, and was notable also for the fact that Justice John Paul Stevens declared that he now views the death penalty as unconstitutional. Stevens, who turns 88 on April 20, becomes the first member of the high court to openly oppose capital punishment since Harry Blackmun’s retirement in 1994. The death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment,” Stevens wrote, quoting the late Justice Byron White’s views expressed in Furman v. Georgia, the 1972 decision that temporarily halted executions. Stevens was in the majority in 1976 when the Court reinstated capital punishment in Gregg v. Georgia. The 91-page decision announced Wednesday fractured the Court, with six of the seven justices in the majority writing separately — all except Anthony Kennedy — and a dissent by Justice Ruth Bader Ginsburg, who was joined by Justice David Souter. Donald Verrilli of Jenner & Block, who represented convicted murderers Ralph Baze and Thomas Bowling, said he was disappointed their appeals are over, but he found some of the language of the decision “heartening.” Verrilli said “the next generation” of challenges is already under way in Missouri and California. Challengers who can show a state consistently does not follow the protocol or that executions have repeatedly gone wrong “certainly have a shot.” The Court’s new standard “has some teeth in it,” Verrilli says. Even some members of the majority warned that the decision Wednesday wouldn’t end disputes over lethal injection. “Far from putting an end to abusive litigation in this area … today’s decision is sure to engender more litigation,” Justice Clarence Thomas said. “We have left the states with nothing resembling a bright-line rule.” Thomas predicted challenges over when the risk of harm posed by the procedure becomes “substantial” and when a reduction of the risk is “significant.” Kennedy and Justice Samuel Alito Jr. joined the Roberts opinion. They agreed that the Constitution does not require totally pain-free procedures, but did acknowledge that under certain circumstances the risk of pain could be unconstitutional. For example, Roberts wrote that an insufficient dose of sodium thiopental — the first drug used in the procedure, which renders the inmate unconscious — would pose “a substantial, constitutionally unacceptable risk of suffocation” caused by the subsequent drugs. Roberts also seemed to invite states to improve on the current procedures. “Our approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment.” A state’s failure to adopt readily available and accepted ways of reducing the risk of severe pain could also be unconstitutional, Roberts said. Stevens’ new opposition to capital punishment did not lead him to vote to strike down the procedure. He joined the majority’s bottom line decision upholding the Kentucky protocol, writing that his stance against the death penalty “does not, however, justify a refusal to respect precedents that remain a part of our law.” Justice Antonin Scalia attacked Stevens for basing his new stance on his own experiences as a judge. “Purer expression cannot be found of rule by judicial fiat,” Scalia wrote. “It is Justice Stevens’ experience that reigns over all.” Many of the leading lawyers who specialize in capital punishment cases were coincidentally in the Court Wednesday as Roberts announced the ruling. They were there to hear oral arguments in another death penalty case, Kennedy v. Louisiana, a challenge to Louisiana’s law allowing the death penalty for child rapists. In the 1977 case, Coker v. Georgia, the Court seemed to bar executions for rape and other crimes that did not result in death, but that case involved rape of an adult woman. In the Louisiana case, Patrick Kennedy was found guilty of raping his 8-year-old stepdaughter so brutally that surgery was required to repair her wounds. Representing Kennedy, Stanford Law School professor Jeffrey Fisher asserted there was a national consensus against executing non-murderers, symbolized by the fact that no rapist has been executed in 43 years. But Juliet Clark, an assistant district attorney representing Louisiana, said there was something “unique and horrible” about raping a child that warrants the death penalty. Texas solicitor general R. Ted Cruz, representing states that support Louisiana, also said that “we’re seeing crimes [against children] that 20, 30, 40 years ago, people wouldn’t imagine.”
Tony Mauro can be contacted at [email protected].

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