Law prof comments on deep division on Supreme Court surrounding lethal injections

If you are interested in the Supreme Court's deep division over lethal injection, I thought you might be interested in hearing some preliminary thoughts from Scott Howe, a professor of criminal law at the Chapman University School of Law (Prof. Howe’s bio can be found here: http://www.chapman.edu/law/faculty/howe.asp). Please let me know if you’d like to speak with him:

Braze v. Rees is potentially a very significant case. Although this case from Kentucky does not focus on whether the death penalty itself is permissible, it is a very important case in terms of determining when executions will go forward again. Virtually all of the executing states now use lethal injection as the sole form of execution, and all of the states that execute large numbers of inmates use it. Virtually every executing state follows the same basic 3-drug procedure challenged in this case. Therefore, if the Court concludes that this procedure/technique (as currently conducted) is inadequate, these states will have to reform before they can proceed with executions. Reforms of that sort may take at least several months to accomplish. Because of this case, executions have already been stayed around the country since the end of September.

It’s about the possibility of torture. Although many people are not very sympathetic to the idea that a capital murderer is entitled to a pain-free execution, the inmate here is not really arguing that he’s entitled to no pain. Instead, the argument is that the three-drug cocktail can amount to something that might appropriately be called torture in some cases. The first drug administered is a short-term anesthetic. The second drug administered is a paralytic agent. The third drug administered stops the heart. If the first drug wears off before the third one takes effect, the pain is excruciating. Moreover, the inmate is paralyzed and therefore cannot express the pain. In fact, the American Veterinary Association has banned this three-drug approach for putting down animals because of the potential for unnecessary pain.

A central problem is our lack of knowledge- The real problem is that we (the public) don’t know very much about what is going on. There have been a number of botched lethal injections where it appears that the inmate was not unconscious and even having pain. However, because the inmate can’t express the pain, it is hard to know how much pain a particular inmate may be experiencing. States have also been unwilling to reveal very much about the procedures followed, the qualifications of the persons conducting the executions, or the autopsy reports in questioned cases.

The problems with further delay versus a quick decision. Some of the Justices at the argument suggested the need to send the case back down to the Kentucky state court for further fact-finding regarding some of the relevant issues, including the possibilities for alternative methods of execution. It is very doubtful that states would want to go back to using the electric chair or the gas chamber. But, there are other possibilities to the current approach. The problem with sending the case back for further litigation is that it would likely tie up executions for many more months.
The problem with going forward quickly is the relative lack of information in the record of this case.

The Court will likely be closely divided. Given reports about the argument, there is some sense that Justice Kennedy could be the swing vote again.