Yesterday, the Supreme Court ruled in Baze v. Rees that carrying out the death penalty with the current lethal injection method is constitutional. The case came out of Kentucky but had led to a death penalty moratorium across the nation.
The ruling ended up 7-2 which is pretty decisive for the current court when dealing with politically charged issues. The basic principle the court has established is that a death penalty method must create a â€œsubstantial riskâ€ of pain before it is considered â€œcruel and unusual punishment.â€ The lethal injection method, the court decided, does not create that substantial risk. While the court only considered Kentuckyâ€™s system, itâ€™s highly unlikely that similar cases from other states will turn out any differently.
The ruling means executions will now resume.
While death penalty opponents had hoped this case would end up limiting the death penalty in America, it was never about the legality of the death penalty itself. Even the two dissenters, Ruth Bader Ginsburg and David Souter, did not call into question the fundamental constitutionality of the death penalty. Baze v. Rees was a procedural issue, asking the court to rule whether or not a specific method of execution inflicted pain that was cruel and unusual. The 7-2 ruling indicates the proponents of the method did a convincing job in proving the injections are an acceptably low-pain execution procedure.
Interestingly, John Paul Stevens, while siding with the majority, wrote a separate opinion calling for an end to the death penalty. In a surprising bit of judicial restraint, Stevens wrote that precedent obligated him to uphold the lethal injection method but that he believes the death penalty represents â€œpointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.â€
Given that Stevens sided with the majority and is quite old, death penalty opponents now have little hope of advancing their agenda through the courts. If they want to end the death penalty, they will have to change public opinion which will in turn change public administrations. For whatever reasons, we are a nation which likes having the option of inflicting the ultimate punishment. Changing that attitude could take many, many years. Death penalty opponents are in for a long, hard slog.