Posted by: bridget | 2 January 2008

Baze v. Rees Musings

The Supreme Court will hear the case of Baze v. Rees on Monday (when yours truly will be starting her final semester of law school!). There is a great post and some interesting commentary up on the Volokh Conspiracy (here). Additional musings:

Petitioners claim that the Court should examine the aggregate results of the death penalty: it should not examine the chance that any single prisoner will experience pain, but the chance that any executed person will suffer, when making a determination as to whether the punishment is cruel and unusual. This is problematic for several reasons.

First, it increases the risks without a proportional examination of the state interest. Even a procedure which is 99.9% reliable will, over the course of thousands of incidents, have a few instances of failures. This methodology would impose, via the Constitution, a requirement of perfect reliability. A better touchstone would be the meaning of “cruel and unusual” in 1791, which would presumably eliminate such things as the disemboweling, drawing, and quartering of prisoners; the drug cocktail that we use to put our pets to sleep is an improvement over any late-eighteenth century method of execution.

Second, the overstatement of risk has nothing to do with any particular prisoner. They do not experience the mathematical average of results, nor the aggregate of results. Imagine a procedure of lethal injection that is 97% certain to produce absolutely no pain, and, in 1% of cases, produces extreme chest pain, and in another 2% of cases, produces anxiety. The analysis proposed by the petitioners would require the Court to analyse the drug cocktail as if every prisoner experienced both chest pain and anxiety.

If this methodology were to be used with every State action, it would quickly become unconstitutional to imprison people, as the conditions within prisons can be horrific (rape, beating, lack of medical care). If the prison system works the way it is designed to work, prisoners will not be subject to inhumane treatment from the guards or be in a situation where they cannot protect themselves from physical harm. Nevertheless, a system that is administered by men and over men (to borrow a turn of phrase from James Madison) will never be wholly perfect: prisoners experience rapes, beatings, and deprivations of rights guaranteed to them through their incarceration. We may demand a system which is designed to be just, and one in which that design has some reasonable basis in reality, but cannot demand perfect execution (pardon the pun). In the specific instance of cruel and unusual punishment, there should be some element of proportionality: that which is cruel and unusual for a traffic offence may be wholly appropriate for violent felonies.

Instead of determining whether or not a prisoner may experience some discomfort and attempting to determine the level at which this discomfort violates Constitutional protections, the Court ought to compare with that commonly used in America immediately after 1791, determine if the proposed system is designed to achieve an end consistent with those limitations, and whether it is proportional to the crime committed (which overlaps a bit with the first part).

The system proposed by petitioners has the effect of reducing the state’s ability to ensure the health, safety, and welfare of its citizens, as it will be nearly impossible for it to have any time of criminal justice system. It also may have the effect of producing more brutal, albeit less painful, executions. The human body is not meant to die gracefully and painlessly; those ends are best accomplished when the death is immediate and causes an instantaneous elimination of neurological activity.  Finally, petitioners propose that states use the drugs least likely to cause pain – i.e. the latest technology (here).  This sounds great, although it puts the courts in the position of determining which sets of drugs are the least likely to cause pain.  Scientific literature may be absent, conflicting, or unsubstantiated; furthermore, the differences between types of drugs may be marginal, statistically insignificant, or variable.   Consider that Drug A may be more likely to cause pain in men than in women, while Drug B may have the opposite effect.  Is there then a constitutional requirement that women prisoners to have access to Drug A?

As a final point, the Constitution explicitly envisions capital punishment as meeting its muster: the Fifth Amendment has language regarding “a capital, or otherwise infamous crime…” and, in the Double Jeopardy Clause, states that “[No person shall be] deprived of life, liberty, or property, without due process of law.” The former clause relates to punishments, not the underlying crime – i.e. crimes for which the state permits a capital or infamous punishment, not a crime that involves killing or notoriety (here). It involves more than your average mental gymnastics to read the Due Process Clause and believe that the government may not deprive citizens of their lives, but may deprive them of liberty and property. Judicial conservatives will often say that, absent a statement such as, “The people shall not be deprived of life,” capital punishment meets constitutional muster. In this instance, there is an implicit acknowledgment, within the document, that free people in a just society may have their lives taken by the state. Any end-run around those elements of the Constitution – the implicit permission for capital punishment – should be treated, and summarily ignored, as such.



  1. Excellent post. A safe prediction: petitioners’ response (and perhaps the Court’s) to the argument in your fifth paragraph will be “death is different.” An impossible argument to refute, since it’s circular (it assumes that the difference between death and imprisonment has constitutional significance for the issue in dispute here, and thus assumes the very ground in controversy), and a very popular one with the Supremes.*

    Elephant: Well, yes, death is different. The time period of pain is minimal, because you die afterwards. It’s also different because it is inherently painful, whereas prison need not be. Ergo, the “death is different” argument ought to give more Constitutional leeway to states. Oh, wait, the liberals don’t want that? Whoops! I’m preaching the choir, but there is no Constitutional reason why death ought to be different; we see the death penalty mentioned in the Fifth Amendment but not the Eighth, which tells us, by negative implication, that the Eighth does not treat death differently than misdemeanours.

    Any time the Bolshevik bloc of the Court wants to retire would be fine with me… Well, actually that’s not true. Judging by the polls, with criminal coddler Huckabee and St. John McVain the Incorruptible edging out Romney and Thompson, we’ll likely get more Stevenses from our next president, no matter which party wins. So, any time THIS YEAR the Bolshevik bloc wants to retire would be fine with me. Hint, hint, y’all!

    Elephant: I hope that, in the next month or so, Justice Stevens falls for the Siren song of the golf course and circuit-court riding. Barring that, I would take Mitt or Thompson as Pres., because I think those are the only two who remotely “get it,” i.e. understand that all the legislation in the world doesn’t do a bit of good if the Supremes play God and make everything into a Constitutional issue.

    By the way, when you wrote, “Philosophically, there is an obligation upon the government to act in a just manner when performing executions,” if (as I assume) you meant anything other than an obligation to maximize the pain these moral degenerate animals feel, YOU ARE SUCH A LIBERAL!!!!!

    Pachyderm: I wrote that from Massachusetts, and we all know what that means. :) But yes, you are correct; there is something perverse in worrying about inflicting 90 seconds of pain upon someone who raped, beat, tortured, and left other humans for dead.

    And Merry Thursday : )

    Moi: Same to you. :)

    * This might not be a “prediction.” For aught that I know, petitioners might already have made this argument in their briefs. As a time-starved law student, I really wouldn’t know.

  2. I’m going to respond in bold so I can address all that you wrote immediately underneath it.

  3. Aww, you went so easy on me! I was expecting broken bones and a bloody nose (which might’ve caused me to bleed to death, given the size of my schnoz).

  4. I’m getting soft in my old age. Either that, or I save my snark for those who deserve it, instead of laying it upon myself and my friends, unlike some people I know. :p

  5. Imagine the nerve of some people. ::shakes head slowly::

    Still, to be on the safe side, I’ll be guarding my schnoz when I get back to Lexington. I’ll need to carry around a fridge to shield the whole thing. But at least by schlepping the big metal thing, I might build up some muscle mass.

  6. Someone has nose issues. Babe, you aren’t Cyrano de Bergerac, so don’t worry about it. If you are, we’ll find a Roxane for you.

  7. all of you legal wantabees seem to forget the actual victims that have suffered horribly under the hands of these monsters sorry but a pinprick just does not seem all that cruel think about your own family and friends who may fall victim to these depraved beings that walk among us

  8. Roma… I’m on your side. I’m pro-death penalty, but I do think we should make a reasonable effort to not be cruel about it. The administration of justice, IMHO, has little to do with retributive emotion.

    I talked to someone who had witnessed the execution of a man who raped, tortured, and slaughtered a young girl. His thought was that it seemed so peaceful and painless compared to what he had done.

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