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Last term at the Supreme Court, justices and their law clerks were frazzled by disagreements over cases and worn out by last-minute death penalty appeals, which take their toll in time and emotion, according to insiders. This term, sources familiar with the Court’s internal dynamics say the mood has been calmer and more amicable — in part because of the de facto moratorium on executions brought on by the pendency of Baze v. Rees, a challenge to the lethal injection procedure used by Kentucky and all but one of the 36 death penalty states. That calm — and at least some of the harmony — may have been shattered April 16 when the Court handed down Baze, a fragile and contentious 7-2 decision that upholds the procedure and will end the moratorium, but not the litigation over lethal injections. The flow of appeals that had been halted before the decision came down may resume at a fast pace in coming weeks — just as the Court gets busy pushing out decisions before the end of the term in late June. Seven out of the nine justices wrote opinions in Baze, producing a 91-page outcome that even some in the majority say could generate more challenges. “Far from putting an end to abusive litigation in this area … today’s decision is sure to engender more litigation,” said Justice Clarence Thomas, one of the justices in the majority. “We have left the states with nothing resembling a bright-line rule.” Justice Samuel Alito Jr. wrote that if the ruling is misinterpreted, or if a standard urged by Justice Stephen Breyer — also in the majority — is adopted, there will be a “grave danger of extended delay” that might “go a long way toward bringing about the end of the death penalty as a practical matter.” Meanwhile, two other justices in the majority — Antonin Scalia and John Paul Stevens — sparred over Stevens’ declaration that after 33 years on the Court, he now believes capital punishment is unconstitutional. Stevens became the first justice to openly oppose capital punishment since the late Harry Blackmun. SEVEN VOICES The ruling upheld Kentucky’s lethal injection procedure, challenged by two death row inmates. They claimed that if improperly administered, the three-drug protocol 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, Alito, and Anthony Kennedy, said the inmates had not established the kind of “objectively intolerable risk of harm” necessary to render a procedure unconstitutional. Kennedy was the only justice in the majority not to write separately. Donald Verrilli of Jenner & Block, who represented convicted murderers Ralph Baze and Thomas Bowling, says he was disappointed their appeals are over, but he found some of the language of the decision “heartening.” Verrilli says “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. Ty Alper, associate director of the Death Penalty Clinic at University of California-Berkeley’s School of Law, which represents death row inmates on appeal, says that in other lawsuits, “the discovery process has revealed alarming problems with the administration of lethal injection in many states, and nothing in [the April 16] decision prevents the lower courts in those states from addressing those problems under the Eighth Amendment.” The Roberts opinion said 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. Breyer, drawing from Justice Ruth Bader Ginsburg’s dissent, suggested a different standard to guide future challenges, arguing that the relevant question is whether an execution method “creates an untoward, readily avoidable risk of inflicting severe and unnecessary suffering.” Ginsburg’s dissent was joined by Justice David Souter. Thomas and Scalia agreed on a rule that gives broad discretion to the states. An execution method violates the Eighth Amendment “only if it is deliberately designed to inflict pain,” wrote Thomas in a concurrence joined by Scalia. 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.” The death penalty, Stevens wrote, 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.” Soon after he joined the Court in 1975, Stevens was in the majority when the Court reinstated capital punishment in Gregg v. Georgia. But Stevens has voiced increasing concerns over how the punishment is meted out and administered. 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.” The late Justice Blackmun declared his conversion to an abolitionist view just two months before he announced his retirement in 1994. Was Stevens, who turned 88 on April 20, also signaling imminent departure from the Court? That thought crossed the mind of University of Oklahoma law professor Joseph Thai, a former Stevens clerk, when he read Baze. But on reflection, Thai now thinks not. “Perhaps he’s indicating that he’ll continue to apply the Court’s death penalty precedents until they’re overruled, and signalling to death row attorneys that he’s willing to go the abolitionist route,” Thai says. “He’s giving notice as to his practice going forward, rather than a valediction. From my point of view, hopefully that’s the case.” �THE TIME HAS COME’ Many of the leading lawyers who specialize in capital punishment cases were coincidentally in the Court when 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. The justices appeared divided, so the child rape case joins several other knotty issues the Court has to wrestle with between now and the end of the term. Among them: child pornography ( United States v. Williams), the rights of detainees ( Boumediene v. Bush), voter identification laws ( Crawford v. Marion County Election Board), punitive damages ( Exxon Shipping Co. v. Baker), and the Second Amendment right to bear arms ( D.C. v. Heller). Yet, on the day after Baze was handed down, new petitions to proceed with execution were beginning to come in to the Court. In the case of Mark Schwab, a convicted murderer of an 11-year-old girl, Florida Attorney General Bill McCollum asked the justices to lift a stay of execution it had granted last November. With Baze now decided, McCollum said, “The time has come.”
Tony Mauro can be contacted at [email protected].

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